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Date: |
20020430 |
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Docket: |
S002427 |
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Registry: Vancouver |
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IN THE SUPREME COURT OF BRITISH COLUMBIA |
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BETWEEN: |
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PLAINTIFFS |
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AND: |
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DEFENDANTS |
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REASONS FOR JUDGMENT |
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Counsel for the Plaintiffs: |
B.T. Martyniuk |
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Counsel for the Defendants: |
J. Giles, Q.C. |
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Date and Place of Hearing: |
February 13, 2002 |
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Vancouver, BC |
[1] The plaintiffs' application is for production
of documents by the defendants BCT.Telus Communications Inc. and Telus
Communications (B.C.) Inc. (together, "Telus").
[2] The notice of motion sets out the following
relief sought:
1. An order that Telus produce to
solicitors for the plaintiffs a supplemental list of documents which lists all
documents relating to:
(a) the
investigation of the conduct and subsequent suspension by Telus of Raymond
Chretien and Jennifer Chretien; and
(b) any
previous incidents of privacy breaches or other instances of employees of Telus
accessing telephone, electronic mail or facsimile records without proper
authorization or authority;
2. An order that Telus produce to
solicitors for the plaintiffs for inspection and copying those documents listed
under part III of Telus' list of documents;
3. In the alternative, an order
that Telus deliver an affidavit verifying its list of documents; and
4. Costs.
The plaintiffs rely
on Rules 2(2), 26(2), 26(3), 26(10) and 57(12) of the Rules of Court.
[3] The application is opposed by Telus. Counsel
for the defendants Raymond Chretien and Jennifer Chretien (referred to in the
style of cause as John Doe and Jane Doe) attended the hearing of the
application but made no submissions.
[4] In this action, the plaintiffs allege that
Telus is liable for violations of the plaintiffs' privacy rights as a result of
unauthorized accessing by Telus employees of the telephone, electronic mail or
facsimile records of the plaintiff union locals and officials. The breaches of
the plaintiffs' privacy rights are alleged to have occurred at various times,
including December 10, 1999 when a union representation vote was being
considered among Telus employees.
[5] In the amended statement of claim, filed
September 27, 2000, the plaintiffs allege, inter alia, as follows:
7. The Plaintiffs say that as at
December 1999, there was a union representation vote being considered among the
employees of BCT.Telus and Telus B.C. The Plaintiffs say that BCT.Telus and
Telus B.C. are aware that accessing the records and other information available
in the records of BCT.Telus and Telus B.C. by BCT.Telus or Telus B.C. employees
for improper and unauthorized purposes occurs on a frequent basis. In the
circumstances aforesaid, BCT.Telus and Telus B.C. knew or ought to have know
[sic] that a union representation vote would cause certain employees of
BCT.Telus and Telus B.C. to have an interest in the activities of the
Plaintiffs, in particular the telephone communications of the Plaintiffs. The
Plaintiffs say that BCT.Telus and Telus B.C. had a duty to ensure that its
employees did not breach their privacy rights by accessing their telephone
records for an improper or unauthorized purpose.
...
12. The Plaintiffs say that at
other times on other occasions currently unknown to them, the Defendants
violated their privacy by accessing the telephone and/or e-mail and/or fax
records of the Plaintiff union locals and officials in order to obtain
information for an improper purpose.
13. The Plaintiffs say that
BCT.Telus and Telus B.C. were negligent in its hiring, training, supervision,
and investigation of John and Jane Doe and its other employees and the breaches
of the Plaintiffs' right to privacy and the Plaintiffs' right to a
solicitor-client privilege arose from BCT.Telus' and Telus B.C.'s negligent
hiring, training, supervision and investigation of its employees.
14. The Plaintiffs say that
BCT.Telus and Telus B.C. had a duty of care to ensure that the accessing of personal
telephone records and other information available in the records of BCT.Telus
and Telus B.C. by BCT.Telus and Telus B.C. employees for improper and
unauthorized purposes did not occur during the process of a union
representation vote. The Plaintiffs say BCT.Telus and Telus B.C. has no
policies and procedures in place to prevent a breach of privacy rights or in
the alternative, has inadequate policies in place. The Plaintiffs say that
BCT.Telus and Telus B.C. either do not discipline employees at all for these
breaches of privacy rights or the discipline imposed is so negligible as to be
a tacit acceptance of these breaches. The Plaintiffs say that in the
circumstances aforesaid that BCT.Telus and Telus B.C. acquiesced in the
breaches of the Plaintiffs' right to privacy and right to a solicitor-client
privilege.
[6] Telus provided a list of documents dated July
7, 2000 in response to the plaintiffs' demand for discovery of documents.
Following receipt of this application, Telus delivered a supplemental list of
documents.
1. DOCUMENTS RELATING TO THE INVESTIGATION BY
TELUS INTO THE ALLEGATIONS OF IMPROPER ACCESSING OF TELUS RECORDS
[7] The plaintiffs submit that various documents
contained in part I of the Telus list of documents refer to other documents
relating to the investigation by Telus into the allegations that Telus
employees were accessing Telus records without proper authority. The plaintiffs
say that these other documents were not listed or otherwise described in the
Telus list of documents and accordingly seek production of those documents.
[8] The plaintiffs rely on the affidavit of Dan
Olson. He deposes that he has reviewed the list of documents of Telus and sets
out the documents which, in his view, have yet to be produced.
[9] Telus relies on the affidavit of Norman
Beattie, a senior security investigator with Telus, who conducted the
investigations of the defendants Raymond and Jennifer Chretien. Mr. Beattie
deposes that he has produced all documents in his possession regarding the
investigation and subsequent suspension of the Chretiens, with the exception of
the interview notes relating to the identity of the conference call operator.
He deposes that he will search for those notes and produce them if and when he
finds them.
[10] Telus submits that it is relevant that no
application was made to cross-examine Mr. Beattie on his affidavit. It submits
that there is no basis to doubt Mr. Beattie's evidence and, accordingly, the
plaintiffs' application for further documents relating to the investigation
should be dismissed.
[11] I will refer to the documents sought by the
plaintiffs in the order in which they were addressed in submissions.
[12] Firstly, the plaintiffs seek records of access
to Dan Olson's home telephone number from mid-November to the present date. Mr.
Olson deposes that while document number 64 on the Telus list indicates an
apparent instruction or request by Mr. Beattie to Mr. Jim Nighlander for these
records, only three documents, numbers 17, 28 and 29, have been produced, referring
to December 10, 1999 and January 8, 2000.
[13] Mr. Beattie responds that there are no
additional records of access. He states that:
. . .My request was for a search of the TELUS
Customer Records and Inventory System (commonly referred to as
"CRIS") to see if there were any instances of employee access to Mr.
Olson's phone number during the periods specified, from mid-November to the
date of the search. That system has a function which permits it to be searched
or "audited" for access to specified telephone numbers over specified
time periods. The search I requested identified that there were a number of
instances of access by employees. That information was printed off in the form
of the documents disclosed at Items 17, 28 and 29 of the Defendant TELUS' list
of documents. . . .
[14] It appears that a search was conducted and the
resulting access records produced. I am satisfied that there is no basis upon
which to doubt Mr. Beattie's evidence as to the search and its outcome, and
accordingly, no basis for an order for production of additional records of
access.
[15] Secondly, the plaintiffs seek documents
relating to an interview with Bruce Bell, a member of the TWU Executive.
[16] Mr. Beattie deposes that, while his notes
indicate that such an interview should be arranged, it never took place, and
accordingly, there are no documents relating to any such interview. Again, I
see no basis upon which to make an order for production.
[17] Thirdly, the plaintiffs seek documents setting
out the identity of the Telus operator who arranged the conference call
referred to in paragraph 8 of the amended statement of claim or notes from any
interview with that person.
[18] Mr. Beattie deposes that his notes of the
investigation, produced as item 64 of Telus' list of documents, set out the
explanation provided to him as to how the conference call was handled. There is
apparently no record or tracking device in place to indicate who placed the
final conference call. Mr. Beattie indicates that he has been unable to find
his interview notes and will continue to look for them. Counsel for Telus
concede that Telus is under an ongoing obligation to disclose any documents in
this category. In my view, there is no need for an order in this regard.
[19] Fourthly, the plaintiffs seek a "security
history" for the period December 1999 through January 2000. Mr. Olson
deposes that there is reference to such a document in the notes of Joanne
Canal, call centre supervisor, disclosed as document 39 on the Telus list of
documents.
[20] Mr. Beattie deposes that there is no document
known as a "security history", as described. Again, in my view there
is no basis for an order for production under this heading.
[21] Fifthly, Mr. Olson deposes that he is informed
by the plaintiff David Thompson and verily believes that in or about March
2000, Thompson contacted Telus security to advise of his concerns regarding
access problems with his Telus e-mail account. Mr. Olson deposes that he
understands that Telus security can access a history profile of a Telus e-mail
account, but the Telus list of documents does not appear to refer to any such
document.
[22] Mr. Beattie confirms in his affidavit that he
was contacted by Thompson who was concerned about access problems with his
Telus e-mail account. Mr. Beattie deposes that he investigated those concerns
and found that there was no evidence of unauthorized access. Documents 53 and
64 on the Telus list of documents are Mr. Beattie's e-mail and his notes
regarding the results of the investigation. Mr. Beattie deposes that there is
no history profile of Mr. Thompson's email account.
[23] Again, I see no basis upon which to make an
order as to production.
2. DOCUMENTS RELATING TO ANY PREVIOUS INCIDENTS
OF PRIVACY BREACHES OR OTHER INSTANCES OF EMPLOYEES OF TELUS ACCESSING
TELEPHONE, ELECTRONIC MAIL OR FACSIMILE RECORDS WITHOUT PROPER AUTHORIZATION OR
AUTHORITY
[24] The plaintiffs submit that the lists of documents
of Telus do not appear to contain any documents relating to previous incidents
of privacy breaches or unauthorized accessing of records by Telus employees
despite the fact that this issue is raised in the pleadings. The plaintiffs
refer, in particular, to paragraphs 7 and 14 of the amended statement of claim
(supra) which they say clearly raise the issue of Telus' approach in
deterring employees from committing privacy breaches of its customers.
[25] At the hearing, the plaintiffs narrowed their
request to documents relating to improper access to customer records by British
Columbia employees of Telus.
[26] In the course of its submissions, Telus
conceded that documents relating to other instances of unauthorized access by
the defendants Raymond and Jennifer Chretien would be relevant based on
paragraph 12 of the amended statement of claim. Telus concedes that it has an
obligation to list such documents, while submitting that they may be subject to
a claim for privilege.
[27] Telus objects to any further production.
First, they submit that the request is not specific to any proper pleading, or
alternatively, that the pleadings are too vague to support such a broad
request. In particular, Telus submits, paragraph 7 of the amended statement of
claim assumes that improper access takes place. That access is not pleaded as a
material fact. Further, Telus submits that the request is too broad and should
not be the subject of an order given the difficulties in producing such
documents and the unjustifiable abridgement of third party privacy interests
which would result from an order for production.
[28] With regard to Telus' submissions as to
relevance, paragraph 7 of the amended statement of claim alleges that Telus is
aware that improper accessing of records occurs on a frequent basis. It is
difficult to see how Telus could be aware of such improper access if such
access did not occur. I therefore do not accept the submission of Telus that
the request for production is not specific to any proper pleading.
[29] As to whether, to the extent to which it is
based on a proper pleading, the request is too broad, the case law is clear
that the request must be framed "in terms that extend the demand only to
documents pertaining to other incidents or alleged incidents sufficiently
similar to the subject matter of the claim that they might constitute similar
fact evidence": T.L. v. Chan [2000] B.C.J. No. 2242 (S.C.)
at para. 16.
[30] I am satisfied that the pleadings raise the
issue of the prior history or conduct of Telus in taking disciplinary action
against employees who improperly access customer records. It would therefore
assist the plaintiffs to establish that there were other instances of improper
accessing of records or other privacy breaches by Telus employees. As well, the
disciplinary action taken by Telus is of relevance.
[31] In support of its argument that the production
sought would be too difficult to comply with, Telus relies on the affidavit of
Maria Pavao. She deposes that Telus is the "product of the merger of BC
TELECOM Inc. and TELUS Corporation, which formerly owned the dominant telephone
companies in British Columbia and Alberta, respectively." She further
deposes that at the time this action was commenced in May, 2000, there were
approximately 20,000 employees, and as at September 30, 2001, Telus had in
excess of 4.6 million customer access lines.
[32] The concern regarding the breadth of the
request when viewed with the number of Telus employees is met to some extent by
the plaintiffs' concession that the request can be limited to records of
improper access by British Columbia employees of Telus.
[33] Telus provides no evidence as to whether and
how records of improper access by employees are kept, whether a search for such
records would be an onerous task or whether, at least since the advent of
computer record-keeping, a computer search would be sufficient. Given the lack
of evidence as to the difficulties of production, the objection to production
on this basis is not made out.
[34] As to the abridgment of third party privacy
rights, Telus cites the Personal Information Protection and Electronic
Documents Act, 2000 RSC, c. 5 (the "Act"), and
Telus' General Terms of Service and Privacy Code as the source of its
obligation to maintain confidentiality of customer information. While
acknowledging that both the statute and its internal documents provide an
exception where an order for production is made, Telus submits that it would be
a grave thing to override these privacy rights. They cite Berkel v.
Alberta Cancer Board [1996] A.J. No. 442 (Alberta Q.B.) in which an
application for production of certain patient data was dismissed on the basis
of the patient's statutory right to confidentiality and privacy.
[35] Again, in my view, this objection to
production is not made out. The circumstances here are unlike those in Berkel
in two respects. Firstly, what is sought here are not customer records per
se but records of improper access to those records, that is, records
of occasions on which the customer's right of confidentiality has been found to
have been breached. It is not clear to me the extent to which disclosure of
such records would require disclosing confidential customer information.
Secondly, the plaintiffs here have conceded that any customer information
contained in such records may be deleted or obscured before the records are
produced to them.
[36] I am accordingly not persuaded that to order
production will necessarily result in a violation of third party
confidentiality.
[37] There will be an order for production of the
records sought as they relate to British Columbia employees of Telus.
3. DOCUMENTS LISTED UNDER PART III OF TELUS'
LIST OF DOCUMENTS
[38] In the notice of motion of the plaintiffs,
production is sought of the documents listed under part III of Telus' list of
documents. I was provided with copies of those documents.
[39] In the course of submissions, counsel for the
plaintiffs conceded that they are not pursuing documents created after this
action was commenced on May 1, 2000. In addition, as I understand the
plaintiffs' submissions, they do not dispute that documents created after the
grievance procedure began on March 30, 2000 are privileged.
[40] The result is that only document 1 in Part III
remains at issue. It is described as:
1. March 27,
2000 Handwritten notes by Gail Jordan
[41] Telus submits that this document is privileged
because it was made in anticipation of the grievance proceedings and because it
records solicitor-client communications which are themselves privileged.
[42] Telus relies on the affidavit of Ms. Pavao in
which she deposes as follows:
1. I am a Senior Labour Relations
Consultant employed by TELUS Communications Inc., the successor to the
Defendant TELUS Communications (B.C.) Inc. (hereinafter collectively referred
to as the "Defendant TELUS"). . . .
2. I am also a barrister and
solicitor and a member of the Law Society of British Columbia. As part of my
employment I provide the Defendant TELUS with legal advice with respect to
labour relations.
3. ...(a) Item 1 contains notes
made by an employee of the Defendant TELUS for the dominant purpose of pending
or contemplated litigation. The notes include reference to confidential
communications passing between the author and me, which communications concern
matters that are now in question in this lawsuit. Those communications were for
the purposes of the Defendant TELUS obtaining and being provided with legal advice
in connection with matters that are now in question in this action.
[43] Beyond Ms. Pavao's conclusory statements as to
dominant purpose and solicitor-client communications, there is little evidence
to assist the court in assessing Telus' claim of privilege. Ms. Jordan has not
provided an affidavit as to her purpose in making the notes. Nor is there any
statement from Ms. Pavao as to which of her two roles she was filling when she
spoke with Ms. Jordan: College of Physicians and Surgeons v. British Columbia
(Information and Privacy Commissioner) (2001), 90 B.C.L.R (3d) 299
(S.C.). The document itself provides no substantial assistance in this regard.
[44] On balance, it is my view that Telus has not
satisfied the onus upon it to establish that the document is protected by
privilege. There will therefore be an order that document 1 in Part III be
produced.
ORDER
[45] With reference to the relief sought in the
notice of motion, my order is as follows:
1(a) dismissed;
1(b) allowed as it relates to
British Columbia employees of Telus;
2. allowed as to
document 1 in Part III of the defendants' list of documents;
3. dismissed; and
4. costs to the
plaintiffs.
"Master S. Scarth"