Online proctoring software was critical to higher education institutions during the heart of the pandemic. Though less signficant today, the report of findings issued by the Information and Privacy Commissioner/Ontario last week about McMaster University’s use of online proctoring is an important read for Ontario public sector institutions – with relevant guidance on IT contracting, the use of generative AI tools and even the public sector necessity test itself. The necessity test To be lawful, the collection of personal information by Ontario public sector institutions must be “necessary to t ..read more

On November 22, 2023, the Court of Appeal (England and Wales) held that the Freedom of Information Act 2000 permits the public interest in maintaining non-absolute exemptions to be weighed in the aggregate against the public interest in disclosure. This decision is technical, and about the unique structure of the United Kingdom’s freedom of information statute. Lady Justice Andrews even remarked, “I anticipate that it will rarely be the case that the issue of statutory construction that we have been asked to resolve would make a practical difference to the outcome of an application for disclos ..read more

On November 6th, the Supreme Court of British Columbia affirmed a British Columbia OIPC finding that a university was in possession and control of e-mails sent and received by a faculty member that the University claimed related to research. The Court nonetheless quashed the OIPC’s order to issue a decision in respect of the e-mails on the basis that they were not excluded from the public right of access. The request was for e-mail correspondence between a faculty member and his research collaborator in Japan over a lengthy time period. The University denied the request based on the statutory ..read more

It was an honour and pleasure to speak today at the Canadian SecuR&E Forum, a research and education community-building event event hosted by CANARIE. My object was to spread the gospel of threat information sharing and debunk some myths about legal privilege as a barrier to it. Here are my slides, and I’ve also included the text of my address below. Slide one I am here today as a representative of my profession – the legal profession. I’m an incident response lawyer or so-called “breach coach.” Lawyers like me are often used in an advisory capacity on major cyber incidents. Insurers enco ..read more

On April 17, Nova Scotia labour arbitrator Augustus Richardson admitted audio recording evidence that a union objected to even though the employer failed to give proper notice of recording. The grievors were correctional officers discharged for behaving offensively and unprofessionally in transporting an inmate to a hospital. A hospital social worker complained of misconduct that occurred in the hospital. This led the employer to speak with the inmate, who did not provide a statement, but said something – it’s unclear what – that led the employer to download and review audio-visual recordings ..read more

My BLG teammates and I take the privilege of guiding clients through the perils of cyber incidents seriously. To honour the privilege, we think deeply about various aspects of our performance, including how we can perform better under pressure. Dr. Dan Dworkis’s book, The Emergency Mind: Wiring Your Brain for Performance Under Pressure is now required reading. Dr. Dworkis is a professor of medicine and an emergency physician. His book, published in 2021, is part of a project that includes a website, podcast and other supports for individuals and teams striving to perform better under pressure ..read more

On August 10th, the Court of Appeal for Saskatchewan held that the Saskatchewan Court of Queen’s Bench erroneously ordered “solicitor’s notes and inter-office memoranda” to be produced to a client because this categorization was over-broad. It reviewed the Canadian law and held that the authoritative text from Cordery’s Law relating to Solicitors is often misunderstood and unquestionably applied to provide lawyers ownership of their “working file.” It re-stated the test as follows: Documents in existence prior to the retainer and provided by the client to the lawyer remain, in the absence of ..read more

On July 27th, the Federal Court of Appeal held that the Parole Board of Canada erred in denying the media access to recordings of its hearings. The matter was about an application for copies of recordings of parole hearings involving notorious convicted criminals Paul Bernardo, William Shrubsall and Craig Monro. The Corrections and Conditional Release Act provides for parole hearings that the Supreme Court of Canada has said are inquisitorial in that the Board is bound to consider all evidence put before it in conducting a form of risk assessment. The Act also gives the public a presumptive ri ..read more

On June 29th, the Manitoba Law Reform Commission issued its final report on its study of the use of non-disclosure agreements in the settlement of misconduct claims. The Commission “strongly recommended” that legislation governing the the content and use of NDAs in claims of misconduct should not be enacted in Manitoba at this time because such legislation “could cause serious, unintended consequences and negatively impact complainants.” The Commission is established under a Manitoba statute to “inquire into and consider any matter relating to law in Manitoba with a view to making recommendati ..read more

On July 4th, the Supreme Court of British Columbia quashed a British Columbia OIPC order to provide an FOI requester with access to information about Airbnbs operating in the City of Vancouver. The City licenses short term rentals. It publicly discloses license information, presumably to enable renter inquires. However, the City stopped publishing host names and rental addresses with license information in 2018 based on credible reports of safety risks. Evidence of the safety risks was on the record before the OIPC – general evidence about “concerned vigilante activity” and harassment, evidenc ..read more