By Spencer Sterritt

Possible precedent-setting privacy case involving a former councillor heard in Nanaimo courts

Nov 7, 2018 | 6:42 PM

NANAIMO — The attorney general of B.C. says it doesn’t matter what was said in controversially leaked confidential emails from Nanaimo’s former mayor, only that all copies be destroyed and removed from social media.

AG representative Michah Rankin petitioned Supreme Court Justice Douglas Thompson on Wednesday to grant two orders against former city coun. Gord Fuller and his friends Tim McGrath and Matt O’Donnell. O’Donnell didn’t attend and allegedly hadn’t filed recent responses to the courts.

The first order sought is for the respondents to delete any copies they have of what’s known as the Integrity Letter, written by former Nanaimo mayor Bill McKay to a mediator about his thoughts on fellow councillors, and legal letters from coun. Diane Brennan’s lawyer.

The second request is they delete all social media posts sharing the confidential documents, which were widely available on Facebook starting in 2015.

The documents were the subject of a wide-ranging investigation by the Office of the Privacy Commissioner, which ruled all the leaks associated with respondents did contravene B.C.’s privacy legislation.

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“All that’s relevant is this is personal information and it was unlawfully disclosed. That is the key issue before the court today, not the disagreements which arose in Nanaimo council because of it,” Rankin said.

The matter has already been before the courts during a hearing about sealing the confidential documents for the length of the petition. The arguments presented to court on Wednesday didn’t differ drastically from what was already presented.

Anticipating the argument from Fuller and McGrath that the documents had already been out in public for years, Rankin said the “cat is out of the bag” logic “doesn’t stand up to scrutiny” and has no legislative or statutory purchase in the courts.

“This is an ongoing breach…the (City) can’t say ‘It’s too late, the damage was done, we’re absolved of any responsibility to address these breaches coming from within our institution.’ Nanaimo is not alleviated of its responsibilities under (the Freedom of Information and Privacy) act.”

He argued if the Honourable Justice Thompson were to accept the submissions from Fuller and McGrath, he would be agreeing their commission of the offense is also their defense.

“It’s a very curious sort of logic: we’ve done the damage…so don’t issue an order. I say that should be a difficult proposition for anyone to accept.”

Rankin said though the documents were widely circulated on numerous Facebook pages, not just the ones run by Fuller and McGrath, he’s confident they can delete as many posts as possible to be compliant with privacy legislation.

With the investigation by the privacy commissioner already complete, Wednesday’s hearing wasn’t about the validity of the investigation.

However, Fuller and McGrath spent much of their submissions talking about the investigation and it’s apparent flaws.

“Why am I here,” he asked. “Why aren’t others?”

He said the documents in question were shared on other social media pages and were readily available elsewhere, but no one else was told by the privacy commissioner or the City to remove their posts.

Much of McGrath’s argument questioned the relationship between former mayor McKay and the Integrity Group at the time the email was written. He said the “whole process was for nought” if there wasn’t a contract between McKay and the group, without further elaborating how it would remove the aspect of privacy from the letter.

The City of Nanaimo is currently being sued by the Integrity Group over an unpaid bill for the work done regarding McKay and the fractious relationship among council. The City’s response to the Integrity Group claims McKay wasn’t authorized by the City to recruit their services.

The question of control over the private document was also raised by McGrath and Fuller several times as they claimed the letter was out of McKay’s hands and shared among councillors long before McGrath shared it at an open council meeting.

McGrath claimed he had the letter in his possession, allegedly found in an envelope on his windshield, for weeks before he went public with it.

“Obviously at that point the City didn’t have control, otherwise it couldn’t have ended up on my truck. There’s a couple bunches of places where it very well could have entered the public domain.”

Thompson said he didn’t require a rebuttal from Rankin on the many points raised by Fuller and McGrath.

If Thompson rules in favour of the attorney general, the privacy case could become precedent setting. Rankin said there’s no specific case law behind their argument because a petition to the court of this nature has never happened before.

Political analysts have also told NanaimoNewsNOW this case could have significant ramifications to how privacy is considered in the social media age.

Thompson reserved his decision in the matter with no timeline or promise set on when he’ll have a decision.

spencer@nanaimonewsnow.com

On Twitter: @spencer_sterrit