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Supreme Court orders former Nanaimo councillor to delete widely-shared private documents

Nov 14, 2018 | 3:50 PM

NANAIMO — A former Nanaimo city councillor is being ordered by the courts to delete or destroy all physical copies of three confidential and controversial documents which were shared online for years.

The Honourable Justice Douglas Thompson’s written decision, issued on Friday, Nov. 9 after a hearing in the Supreme Court of B.C., ruled against former coun. Gord Fuller, as well as Tim McGrath and Matt O’Donnell after a petition was brought forward by the attorney general of B.C.

They now have seven days to destroy or return their copies of a letter from former mayor Bill McKay and two legal letters from the lawyer of former coun. Diane Brennan. They also have 14 days to delete all their social media posts sharing the information.

A wide-ranging investigation by the Office of the Privacy Commissioner found the letter from McKay, discussing his contentious and deeply personal thoughts of his fellow councillors with a faciliator, and the letters from Brennan’s lawyer challenging the hiring process of the then-CAO, were shared illegally.

McGrath claimed he found the letter from McKay on his windshield in 2015 and it was in his possession for several weeks before he shared it at a public council meeting. The letters from Brennan’s lawyer were shared solely online in 2016, including by O’Donnell again during the legal proceedings in the Supreme Court.

The respondents were served numerous times with requests to delete the documents from social media and return any physical copies, none of which were complied with.

Thompson’s ruling brings into question how existing rules can stop the spreading of confidential information and enforcement of privacy legislation.

In previous comments to NanaimoNewsNOW on the matter, political scientist Michael Prince said legislation hasn’t kept up with the quickly changing world of social media.

“It does raise some of the limitations of legislation which was crafted for more reasonable circumstances than the one we’ve witnessed in Nanaimo over the last couple of years,” he said.

“The dissemination of information is well beyond the old days of file folders and brown envelopes slid under doors or handed to people quietly on a Friday afternoon. This is a real technology challenge for all governments.”

When making his case, provincial lawyer Michah Rankin told Thompson there’s no specific case law behind the attorney general’s argument because a petition to the court of this nature has never happened before. 

Under Justice Thompson’s ruling, the respondents have to delete their online posts but “only to the extent that they are reasonably capable of exercising control over or deleting copies of the email or letters.”

During the court hearing, both Fuller and McGrath raised the issue of “the cat being out of the bag” and how the information was shared by others who weren’t being petitioned by the court or asked by the City to destroy their copies.

Thompson’s decision didn’t consider their argument and was focused specifically on their actions of refusing to comply with numerous requests to delete the information.

He also ruled many of their arguments were “without merit,” specifically about the case being politically motivated against a councillor who was running for re-election at the time.

“I conclude there is much irony but no merit in this complaint,” he said.

If Fuller, McGrath and O’Donnell don’t comply with the court order, they could be held in contempt of court.

Under Thompson’s decision, the office of the attorney general is entitled to recouping the cost of the proceedings from the respondents.

The office told NanaimoNewsNOW their costs haven’t been quantified at this time.

 

spencer@nanaimonewsnow.com

On Twitter: @spencer_sterrit