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

Disclosure fundamental to natural justice and fairness ascertaining truth in legal proceedings

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.

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

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)

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

Aspects of Privacy

personal privacy territorial privacy informational privacy

personal privacy bodily integrity of person

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

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

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

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)

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)

MFIPPA recognizes that information may be compelled in legal proceedings.

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)

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

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)

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.

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.

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

DISCLOSURE FACTORS

Essential for natural justice

The record is relevant and has significant probative value

Its probative value outweighs the social interests of protecting the record

The case is of sufficient weight and significance to override confidentiality

Safeguards are available to ensure the optimum level of confidentiality

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)

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

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