Law Times

Page 4 Social media searches a hot topic at CCCA conference BY CHARLOTTE SANTRY Law Times L awyers are offering up differing opinions on the propriety of employer searches of job applicants' social media postings. Lyndsay Wasser, a partner and employment lawyer at McMillan LLP, spoke about the issue at the Canadian Corporate Counsel Association's spring conference last Tuesday. "You cannot defend social media searches on the basis of [claiming] it's publicly available," she said. The term publicly available is "generally limited to very narrow circumstances," such as a phone directory, she noted. She added: "A lot of the information you pull up in a social media search isn't considered publicly available." Speaking to Law Times after the event, Wasser said that just because information, such as an applicant's blog or Twitter feed, may appear in a Google search, "that doesn't mean it's publicly available." Three provinces, Alberta, British Columbia, and Quebec, have privacy legislation that restricts employers' ability to perform social media background checks on prospective employees. There are also protections for federally regulated workers. In Jones v. Tsige, the Ontario Court of Appeal created the tort of "intrusion upon seclusion" dealing with "one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns." The tort says a wrongdoer "is subject to liability to the other for invasion of his privacy, CUTTING EDGE • TIMELY • INTERACTIVE April 22, 2013 • lAw Times NEWS if the invasion would be highly offensive to a reasonable person." While a simple Google search probably wouldn't satisfy the test, more "invasive or deceptive actions," such as pretending to be someone's Facebook friend, probably would, said Wasser. But in all jurisdictions, social media searches increase the risk of human rights complaints, she said. If the search revealed information about a drug or alcohol addiction, pregnancy or age, employers could have to defend their decision to not hire someone. Wasser recommends using social media searches only after making a conditional offer of employment, giving candidates prior notice, and documenting the non-discriminatory reasons for not making a job offer. But Brian Smeenk, a partner with Fasken Martineau DuMoulin LLP's labour, employment, and human rights group, said the idea that prospective employers should avoid social media searches was "preposterous." "If information's available to members of the public, there's no reason why employers can't look at it. . . . Employers want the best possible information," he said. But employers must avoid discrimination just as when "someone comes into an office with an obvious disability," he added. Existing employees must also be aware that employers can view their postings, said Canadian Auto Workers legal director Lewis Gottheil. "My sense is that in general, arbitrators wouldn't sustain in a meaningful way the idea that an employee has a reasonable expectation of privacy when they start posting on Facebook," he said. LT Forfeitures criticized Continued from page 1 for mischief and deceit demanded a special kind of supervision." Nevertheless, McCarthy ruled against the ministry's application for forfeiture. "The applicant could offer no explanation of the reason for the delay other than that prospective applications were backlogged," he wrote. When asked by Law Times about the reasons for the delays, the ministry refused to provide any details. "As the matter is within the appeal review period, no comment is appropriate," said ministry spokesman Jason Gennaro. The judge's decision is in line with the Charter of Rights and Freedoms, according to Hicks Adams LLP founding partner Chris Hicks. "Knowing six years earlier of the misuse of the land and Mr. Roger's son and Mr. Roger's role in the criminal activity, the delay in pursuing the matter was fatal to the Crown's pursuit of the land, which runs parallel to Charter litigation respecting delay," he says. Litigator James Morton says he has seen delays by the government in forfeiture cases but never to the degree in this case. "Often the delay is three or four years and it's caused by both sides," says Morton, who calls this case "extraordinary." McCarthy's decision "sends a message to the profession as a whole . . . that we've got to prioritize these things," he says. "The case of backlogs won't work." The Crown argued the father had bought the house for his son and was an owner in name only. It alleged the father was therefore facilitating drug trafficking by allowing his son to use the property as an instrument of crime. But that argument didn't sway McCarthy's stance that the Crown should have acted on this knowledge earlier. "To the extent that any of that is true, it is obvious that the AG believed it to be true by March 2006 or a short time thereafter," wrote McCarthy. Lawyer Bernard O'Brien, who represented the respondents in the case, says the prosecution came as a surprise to his client. "When somebody looks at the provisions of the Civil Remedies Act, it's a statute with a real bite in it. It's a very pernicious type of law," says O'Brien, who calls McCarthy's decision fair. The decision comes at a time of increased interest in forfeiture cases. In a recent article in Canadian Lawyer, for example, one B.C. lawyer referred to the government's efforts to seize property as a "tremendous cash cow." "This is an absolutely urgent access-to-justice issue," Micheal Vonn, policy director of the B.C. Civil Liberties Association, told Canadian Lawyer. She noted individuals ensnared by the forfeiture law are often first-time offenders not connected to organized crime. In addition, they don't have the resources to fight legal battles against the provincial government and don't qualify for legal aid. In Alberta, newly proposed legislation is aiming to streamline forfeitures of property by requiring owners to fill out a form indicating their intention to battle the Crown in court within 30 days of receiving notice. The government has suggested most owners don't seriously oppose the forfeiture but use various techniques to delay the process. LT CLOUD COMPUTING: A Practical Approach "Cloud Computing" has been hailed as the newest and greatest model for enabling companies to obtain convenient, on-demand, scalable network access to the latest technology without the need to maintain expensive internal IT staff or continually refresh infrastructure. Unfortunately, in their desire to save costs and jump on the technology bandwagon, many companies are signing up to Cloud agreements without even understanding the technology risks, business concerns or their legal obligations. Our course will help separate the "buzz" from the Cloud and will offer a practical understanding of the technology, business and legal considerations of your organization's use of Cloud Computing technologies and providers. Join us and the experts from Torkin Manes and industry who will help demystify the Cloud, answer your Cloud Computing questions and discuss both the strategic opportunities and risk management priorities surrounding your organization's use of Cloud Computing. Hear from in-house counsel and industry about what they really want and need from the Cloud. We will provide you with practical information and approaches that will help you harness the power of the Cloud without sacrificing your legal duties and business/ fiduciary requirements. This course is a must attend for Directors; Officers, Corporate Counsel and Risk Managers who need to understand how to harness the benefits and mitigate the risks of the Cloud and how to protect themselves and their companies. SPEAKERS COURSE HIGHLIGHTS CHAIR Lisa R. Lifshitz, Partner, Torkin Manes LLP GUESTS Shanti Ariker, Salesforce.com Ryan Berger, Bull, Housser & Tupper LLP Kevin Crowe, Long View Robert Hart, Canadian Cloud Council Alex Glanz, Chubb Insurance of Canada Neil Kathol, Field LLP Ken Ledger, Savannah Energy Services Corp. Terry Mandin, I2E Solutions Inc. Frank Molnar, Field LLP Kerry Munro, Canada Post David Quail, Chubb Insurance of Canada Doreen Saunderson, Field LLP Sharon Sproule, University of Lethbridge Nicole Sutton, Chubb Insurance of Canada Chris Wilson, Bull, Housser & Tupper LLP • The Cloud in 2013-Where are we now? Where are we going? • Overview of Legal Agreements and Key Clauses in Cloud Agreements - Understanding the documentation • Privacy/Data Security issues in Cloud Computing • Employment Implications and Cloud Computing • Protecting your Intellectual Property in the cloud • Litigation and the cloud • Roundtable Session: What in-house counsel and the business really want and need from the cloud • Insurance and the cloud REGISTER BEFORE MAY 3 AND SAVE $300! Calgary, June 4, 2013 • Vancouver, June 5, 2013 For more information or to register, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca Webcast also available! Untitled-4 1 www.lawtimesnews.com 13-04-17 1:14 PM

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