Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving...

31
Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto

Transcript of Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving...

Page 1: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Privacy and Disclosure

Privacy and the Scope of Documentary Disclosure in Proceedings Involving

School Boards

Bruce HutchisonGenest Murray LLP

Toronto

Page 2: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Privacy

a comprehensive and valued right

respect for private life

right to non-disclosure of confidential info

the right to be left alone

Page 3: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Disclosure

fundamental to natural justice and fairness

ascertaining truth in legal proceedings

Page 4: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Concepts of privacy and disclosure protected in s. 7 of the Charter – right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Page 5: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Tension between privacy and disclosure demonstrated in s. 8 of the Charter – right to be secure against unreasonable search or seizure.

Page 6: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Protection for both in the Charter: full answer and defence (disclosure), privacy. No single principle is absolute and capable of trumping the others. (R. v. Mills)

Page 7: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Balancing approach and a contextual analysis of competing claims delineate the scope of the reasonable expectation of privacy.

Page 8: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Aspects of Privacy

Page 9: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

personal privacy

territorial privacy

informational privacy

Page 10: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

personal privacy

bodily integrity of person

Page 11: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

territorial privacy

home, work environment, commercial space, school settings, etc.

Page 12: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

informational privacy

the right to determine when, how and to what extent information is communicated to others

Page 13: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Education engages all privacy aspects – personal, territorial, and informational.

Page 14: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

document relevant to a claim may be required to be disclosed… The result depends on balancing of the competing interests of disclosure and privacy in each case. (A.M. v Ryan)

Page 15: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Production, witness information, where relevant, is warranted in the context of litigation irrespective of statutory privilege. Cook v. Dufferin Peel Roman Catholic Separate School Board (1983)

Page 16: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

MFIPPA recognizes that information may be compelled in legal proceedings.

Page 17: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

A principled and contextual balancing ought to be undertaken by the court to define the appropriate weight to be accorded the respective interests, while attempting to give the fullest respect to the values underpinning the rights or interests.

R. v. Keukens (1995)

Page 18: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

balancing exercise = finding a nexus between non-parties whose information was requested and disclosure obligations in a proceeding

Page 19: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

confidentiality in the Education Act does not interfere with the Charter right of “full

answer and defence”

R. v. B. K. (1994)R. v. Keukens (1995)

Page 20: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Privacy legislation does not affect the power of a court or tribunal to compel a witness to testify or compel the production of a document.

Page 21: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

If natural justice requires the production of a document, a court or tribunal may order its production regardless of whether it is classified as confidential under the common law or statute.

Page 22: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Disclosure is NOT all or nothing: a variety of means to tailor it – editing irrelevant/sensitive information or undertakings with respect to use, access, etc., are available

Page 23: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

DISCLOSURE FACTORS

Page 24: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Essential for natural justice

Page 25: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

The record is relevant and has significant probative value

Page 26: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Its probative value outweighs the social interests of protecting the record

Page 27: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

The case is of sufficient weight and significance to override confidentiality

Page 28: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Safeguards are available to ensure the optimum level of confidentiality

Page 29: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Qualified or Partial Disclosure

I have balanced the competing interest of all concerned in this very sensitive matter. It is in the public interest to give the plaintiff an opportunity to present a case and it is necessary, for this purpose that they have access to all relevant documents. It is also in the public interest that the names of the non-party residents of the home not be widely available and that their expectation of confidentiality be respected.

L.M.(B.)P. v. C.A.S. (1994)

Page 30: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

Tension between disclosure obligations in legal proceedings and legislation protecting informational privacy can create complex situations.

Page 31: Privacy and Disclosure Privacy and the Scope of Documentary Disclosure in Proceedings Involving School Boards Bruce Hutchison Genest Murray LLP Toronto.

What emerges from the case law is the exercise of “striking the balance” between competing interests.