Gillian Tuck Kutarna, Guelph
Miller Thomson successfully
defended the Toronto Catholic District School Board (TCDSB) before the Supreme
Court of Canada in a recent decision involving a dispute over an agreement of
purchase and sale.
In 2004 Southcott Estates
Ltd. entered into an agreement with TCDSB to purchase 4.78 acres of land for
$3.44 million, paying a 10% deposit. Closing was conditional upon TCDSB
obtaining a severance from the Committee of Adjustment on or before the closing
date of August 31, 2004. Despite
extending the closing to January 31, 2005, the Board did not obtain the
necessary severance by this time. The
Board refused Southcott’s request for a further extension, and returned their
deposit.
Southcott commenced an
action for specific performance of the contract, asking the court to enforce
its right to purchase this particular piece of land. It made no attempt to mitigate its loss by
purchasing an alternate property.
The Supreme Court cited the
principle that specific performance is only an appropriate remedy where some
“peculiar and special value” of the land would make monetary compensation
inadequate. While the common law
historically treated every piece of real estate as unique, the Court commented
that this is no longer the case with modern real estate development.
Counsel for TCDSB led expert
evidence at trial that between the date of the breach and the date of trial, 81
parcels of vacant development land and 49 properties subdivided into lots
suitable for building sold during that same time period. Therefore, the court held that the only
unique quality to the TCDSB property related to its potential profitability to
the Appellant, which was compensable by a monetary award.
At trial, the judge had
refused to award specific performance of the original agreement, but found that
Southcott was entitled to damages in the amount of $1,935,500.00, representing
60% of the original contract price. The
Court of Appeal acknowledged that TCDSB had breached it contractual
obligation. However, The Court of Appeal
found that Southcott had failed to take any steps to mitigate its loss by
investing in a substitute property, and because a plaintiff cannot recover
losses that could reasonably have been avoided, Southcott’s damages were
reduced to a nominal sum. The SCC
agreed, dismissing Southcott’s appeal, with costs payable to TCDSB.
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Erik Marshall, Toronto
Nadya Tymochenko, Toronto
The Supreme Court of Canada
has released its much anticipated decision in R. v. Cole, a criminal law
case primarily concerned with an accused child pornographer’s right to be
secure against unreasonable search by the police under section 8 of the Canadian
Charter of Rights and Freedoms, but with potential implications for the
privacy rights of employees in the workplace within the context of a workplace
investigation.
The accused in this case
was a high-school teacher charged with possession of child pornography and
unauthorized use of a computer contrary to the Criminal Code.
Facts
Mr. Cole was provided with
a laptop by the school board as part of his employment. He was permitted
to use and did use his work-issued laptop computer for non-work related
purposes. While performing maintenance activities, a school board
computer technician found a hidden folder containing nude and partially nude
photographs of a female student on Mr. Cole’s laptop. The technician
notified the principal, and in accordance with the principal’s instructions,
copied the photographs to a CD. The principal seized the laptop, and
school board technicians copied the temporary internet files onto a second
CD. The laptop and both CDs were handed over to the police, who without
warrant reviewed their contents and then created a mirror image of the hard
drive for forensic purposes.
Lower Court Decisions
The trial judge excluded
all of the computer material found on Mr. Cole’s work-issued laptop computer on
the basis that Mr. Cole’s Charter right to be secure against
unreasonable search or seizure had been violated and because, in the trial
judge’s view, the admission of the improperly obtained evidence would bring the
administration of justice into disrepute as per section 24(2) of the Charter.
The appeal court reversed
the decision of the trial judge, finding that there was no breach of the Charter.
The Ontario Court of Appeal set aside the appeal court’s decision and excluded
the disc containing the temporary internet files, the laptop, and the mirror
image of its hard drive.
Supreme Court of Canada Decision
The Supreme Court of Canada
(“SCC”) agreed with the Ontario Court of Appeal that Mr. Cole’s section 8 Charter
right was violated, but disagreed with the Court of Appeal and found that the
material found on Mr. Cole’s work-issued laptop computer should not be excluded
from the evidentiary record on the basis of the test set out in section 24(2)
of the Charter. In doing so, the SCC made a number of significant
pronouncements on the subject of privacy and held that whether Mr. Cole had a
reasonable expectation of privacy depended upon the totality of the
circumstances.
The SCC stated that
computers that are reasonably used for personal purposes - whether found in the
workplace or the home - contain information that is meaningful, intimate, and
touching on the user’s biographical core. The reason provided was that
internet-connected devices reveal our specific interests, likes, and
propensities, recording in the browsing history and cache files the information
we seek out and read, watch, or listen to on the internet. As such,
Canadians may reasonably expect privacy in the information contained on their
own personal computers as well as information on work computers where
personal use is permitted or reasonably expected.
The SCC explained that
privacy is a matter of reasonable expectations. An expectation of privacy
will attract Charter protection if reasonable and informed people in the
position of the accused would expect privacy. The more personal and
confidential the information, the more willing reasonable and informed
Canadians will be to recognize the existence of a constitutionally protected
privacy interest. However, other considerations diminished Mr. Cole’s
privacy interest.
The school board had in
place a policy and procedures manual which made it clear that all data and
messages generated on school board equipment was owned by the school
board. The school principal also
reviewed with the staff the school board’s acceptable use policy for technology
and indicated that it applied to staff, despite the fact that Mr. Cole disputed
whether the policy specifically applied to staff. However, the Supreme Court of Canada stated
that, “written polices are not determinative of a person’s reasonable
expectation of privacy. Whatever the
policies state, one must consider the totality
of the circumstances in order to determine whether privacy is a reasonable
expectation in the particular situation.”
These considerations, the SCC found, diminished but did not eliminate
Mr. Cole’s privacy interest in his work-issued laptop, which was distinct from
a personal computer. In the result, the SCC held that the nature of the
information in issue in this case heavily favoured recognition of a
constitutionally protected privacy interest.
The accused did not
challenge the school board’s right to inspect the laptop, so the Supreme Court
was clear to say that this issue would be left for another court to decide on
another occasion. Nevertheless, the
Court did comment on the school board’s search and seizure, despite the
teacher’s right to privacy, stating:
In any event, I agree with the Court of
Appeal. The principal had a statutory
duty to maintain a safe school environment (Education
Act, R.S.O. 1990, c. E.2, s. 265), and, by necessary implication, a
reasonable power to seize and search a school-board-issued laptop if the
principal believed on reasonable grounds that the hard drive contained
compromising photographs of a student.
This implied power is not unlike the one found by the majority of this
Court in M. (M.R.), at para. 51. I likewise agree with the Court of Appeal
that other school board officials had the same implied powers of search and
seizure as the principal…
However, the fact that the
school board had acquired lawful possession of the laptop for its own
administrative purposes did not vest in the police lawful authority to conduct
a warrantless search and seizure of the computer for the purposes of a criminal
investigation.
Despite this, the SCC held
that the truth-seeking function of the criminal trial process would be better
served by admission of the evidence, as opposed to its exclusion, and noted
that had the police complied with the applicable constitutional requirements,
the evidence would have been discovered in any event.
Conclusion
As far as the school
board’s conduct was concerned, the SCC held that it was within its rights to
seize and search Mr. Cole’s work-issued laptop.
Therefore, while an
employer’s ownership of computers and written policies may not be
determinative, they are factors in determining whether an employee has a
reasonable expectation of privacy in a particular situation for the purposes of
a disciplinary or criminal investigation.
Since privacy is a matter
of reasonable expectations, it is critical that employers have workplace
policies in place that clearly set out the ground rules for employees’ use of
company-supplied computers or other electronic devices and which clearly state
that the employer will monitor their use to ensure compliance with all employer
policies and laws. As such, we recommend that all employers regularly
review and update their existing policies or, if they haven’t already done so,
implement policies regarding the use of workplace computers and/or other
electronic devices. Such policies should
consider what will be monitored, how, and for what purposes.
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