Privacy In The Dispute Resolution Process - Arbitration & Dispute Resolution

Rousseau c. Conseil de l'industrie forestière du Québec, 2022 QCCAI 332

Facts

A company terminated the plaintiff's employment which led him to file a complaint with the Commission des normes, de l'équité, de la santé et de la sécurité au travail (CNESST). The plaintiff then asked the company to provide him with a copy of his employee file, including his employment contract and letter of employment, as well as all policies regarding email usage and vacation time. However, some of the documents which were relevant to his termination were not sent to him. Thus, the plaintiff filed an application to the CAI. Two days later, the plaintiff signed a termination agreement, which did not explicitly mention proceedings before the CNESST. The company claimed that the complaint ought to be rejected.

Decision

The CAI upheld the refusal of the company to provide documents. A company may refuse, under section 39(2) of the Act respecting the protection for personal information in the private sector (the Act) to disclose personal information when it may have an impact on legal proceedings. Further, this determination should be made in accordance with the proceedings as they stand as of the date of the termination. Even if the proceedings later conclude, the decision will stand if the exception applied at the relevant time. Here, there was a direct link between the documents sought by the plaintiff and the legal proceedings; at the time the company sent its response to the plaintiff's access request, the complaints to the CNESST were pending.

Key Takeaway

The CAI has broadly interpreted the right to refuse the communication of personal information to the person it concerns where disclosure of the information would be likely to affect judicial proceedings in which either party has an interest. Also noteworthy, the CAI held that general release language in a settlement agreement will not effect a release of a complaint filed with the CAI.

Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394

Facts

In September 2012, Québec's anti-corruption agency, the Unité permanente anticorruption (UPAC) executed a search warrant at the appellant McGill University Health Centre's offices following allegations of collusion and corruption in the awarding of contracts for construction work. The appellant then retained counsel for advice as to the remedies and actions to be taken in light of these allegations. The lawyer retained a forensic accounting firm, which produced a preliminary report. That report was then disclosed voluntarily to UPAC. The primary issue in the appeal was whether the voluntary disclosure of the privileged report to UPAC, in the context of a criminal investigation, resulted in the loss of privilege and confidentiality of the document with respect to other third parties.

Decision

The Court of Appeal held that the CAI and the Court of Québec were correct in determining that privilege and confidentiality with respect to third parties were not lost where the information was disclosed to police forces. The CAI and the Court of Québec had correctly relied on prior jurisprudence establishing that the act of disclosing privileged information to the police is a moral obligation, which does not demonstrate a clear and unequivocal intent to waive solicitor-client privilege.

Key Takeaway

The disclosure to law enforcement authorities of privileged information for the purpose of assisting in a criminal investigation does not automatically result in the loss of privilege or confidentiality of the document with respect to other third parties.

Nintendo du Canada ltée c. Tilmant-Rousseau, 2022 QCCQ 5610

Facts

This judgment is an appeal from a decision of the CAI which had overturned a decision of the Office québécois de la langue française (OQLF). In September 2007, the appellant, the Entertainment Software Association of Canada (ESAC), entered into a memorandum of understanding (MOU) with the OQLF, on the conditions related to the distribution of video games in Québec and dealing with various aspects of their marketing. In 2017, the OQLF refused to provide the respondent Laurence Tilmant-Rousseau with a copy of the MOU, citing the confidential nature of the document. This decision was challenged before the CAI. The ESAC and Nintendo Canada Ltd. intervened in opposition to the application for review, on the basis that the MOU was protected by settlement privilege. In August 2019, the CAI ordered the OQLF to disclose the MOU to the respondent.

Decision

The Court of Québec concluded that the CAI erred in refusing to apply settlement privilege in the context of an access to information request. The CAI had based its decision on the quasi-constitutional nature of the Act respecting Access to documents held by public bodies and the Protection of personal information which protects citizens' right to information. The Court of Québec found that when settlement privilege applies, it carries with it a prima facie presumption of inaccessibility of third parties to the communications made for the purpose of settling the dispute, including the settlement agreement. It applies to any dispute that may be brought before the courts, administrative tribunals, arbitrators and mediators, even in the absence of statutory or contractual confidentiality provisions. It is not merely a rule of evidence, but rather is a substantive rule. In this case, the court found that the MOU was protected by settlement privilege.

Key Takeaway

In line with recent jurisprudence, the Court of Québec reiterated that settlement privilege is a generic principle that takes precedence over the general rule of access to records of public bodies. This is a relatively broad interpretation of settlement privilege, which goes beyond the rights of the parties to the settlement and does not set a time limit for its application.

Acuren Group Inc., Re, 2023 CarswellAlta 217

Read more about the case: Acuren Group Inc., Re, 2023 CarswellAlta 217

Facts

The applicant was an employee of the respondent, Acuren Group Inc. The applicant alleged that his employment was terminated without cause and that a complaint made about him by another employee played a role in his termination. Pursuant to the Personal Information Protection Act (PIPA), the applicant made a request to the respondent seeking the disclosure of information pertaining to complaints made against him, his personnel file and all communications and records surrounding the release of his employment. The respondent noted that much of the information requested was not the applicant's personal information, and as a result, the respondent withheld some of the information pursuant to sections 24(3)(b) and 24(3)(c) of the PIPA. The remaining records were also withheld under section 24(2)(a) of the PIPA as subject to litigation privilege or solicitor-client privilege.

Decision

The court held that the respondent properly withheld information under sections 24(3)(b) and 24(3)(c) of the PIPA because the disclosure of such information would result in revealing opinions that were made to the respondent in confidence, as well as personal information about another individual. In addressing the information withheld subject to litigation privilege, the court held that there was no litigation privilege because the applicant executed a general release in favour of the respondent and as such, there was no reasonable apprehension of litigation. Further, the court held that although some of the information contained legal advice, there was no solicitor-client privilege because the information was not confidential as it was shared outside of the solicitor-client relationship.

Key Takeaway

An organization can deny access to an employee's personal information if such access would reveal the personal information of another individual or opinions that were made in confidence. Similarly, for solicitor-client privilege to be effective, the information must be a communication between the solicitor and client, must contain legal advice and must remain confidential.

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