SO THE ZOOM YOU ATTENDED WAS RECORDED.
How Co-op members meet to conduct the business of a Co-op has changed due to Covid as has the manner of meetings of all sorts of organizations. Virtual meetings bring about challenges and they are certainly not a perfect replacement for live face to face meetings. A recurring issue, in Co-op's and all other forums in which "virtual" is replacing in person is the ability of persons to participate. Not everyone has the technology nor the ability to navigate the virtual processes.
A question that has arisen in many contexts is about the digital recordings of the virtual proceedings. Can those be shared? Do members of a Co-op have the right to see them? Does it all depend on the purpose for which the recordings were created? Can you use the recordings to further the business of the Co-op by sharing them more widely to get input from other members who are not able to participate remotely?
I'm not sure that there is a wholly satisfactory answer but here at least is a start to an analysis and answer for your consideration.
ISSUE
An Ontario Non-Profit Housing Co-operative will digitally record members meetings including those parts of members meetings conducted on ZOOM etc.. After the meetings the Co-op will make the recordings available to the Co-op membership. Is this lawful and are there any privacy right concerns respecting the distribution of the recordings of the meetings? Nothing is recorded secretly.
The Government of Ontario enacted temporary replacement provisions of the Co-operative Corporations Act during the COVID-19 pandemic, including: meeting of electronic means, suspension of in person voting, voting by electronic means, election of directors by electronic means, and electronic meetings for Boards and Executive committees. (Co-operative Corporations Act; O Reg 543/20)
Principle 3 of Schedule 1 of Personal Information Protection and Electronic Documents Act provides that the knowledge and consent of an individual are required for the collection, use, or disclosure of personal information, except where inappropriate. (Personal Information Protection and Electronic Documents Act)
Ontario does not have any privacy legislation that is applicable to the private sector. However, the federal Personal Information Protection and Electronic Documents Act applies to private sector organizations that are not federally regulated, as well as federally-regulated organizations, in respect of personal information that the organization collects, uses or discloses in the course of commercial activities. "Personal information" is defined as information about an identifiable individual. (Personal Information Protection and Electronic Documents Act; Summary of privacy laws in Canada)
No cases were identified where the courts commented on whether virtual meetings under the Co-operative Corporations Act engaged any privacy rights.
There are four recognized common law privacy torts in Canada:
1. Intrusion upon seclusion (Jones v. Tsige).
2. Public disclosure of private facts (Doe v N.D., Jane Doe 72511 v. N.M.)
3. Publicity Placing Person in False Light (Yenovkian v. Gulian).
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. (Jones v. Tsige)
Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for intrusion upon seclusion, if the invasion would be highly offensive to a reasonable person. The tort is applicable to intrusions, both physical and non-physical, into the plaintiff's private affairs, and does not require publication or dissemination of information learned through the intrusion. The tort of intrusion upon seclusion consists of three elements:
1. The defendant's conduct must be intentional, which would include reckless conduct
2. The defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
3. That a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish (Jones v. Tsige)
Proof of harm to a recognized economic interest is not an element of the cause of action. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive. (Jones v. Tsige)
Public Disclosure of Private Facts
Public disclosure of private facts deals with the situation in which one gives publicity to a matter concerning the private life of another, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. (Doe v N.D.; Jane Doe 72511 v. N.M.)
To establish liability, the plaintiff must therefore prove that:
(a) the defendant publicized an aspect of the plaintiff's private life;
(b) the plaintiff did not consent to the publication;
(c) The matter publicized or its publication would be highly offensive to a reasonable person; and
(d) The publication was not of legitimate concern to the public. (Jane Doe 72511 v. N.M.)
Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. (Yenovkian v. Gulian)
Appropriation, for the defendant's advantage, of the plaintiff's name or likeness
The tort of misappropriation of personality is now well recognized in Canada, but is relatively undeveloped given the few cases in which it has been raised. It was first recognized and applied in three cases in the 1970s and 1980s. (Jones v. Tsige)
An Ontario Non-Profit Housing Co-operative has members who are unable to participate in member meetings on internet platforms. Some members lack the technology, some are wary of computers, some don't trust the digital tools; yet these members do want to participate in their Co-op and in some cases the Co-op By-Laws require participation in the business of the Co-op. The members are unable to participate in person because of pandemic meeting restrictions. In the past, members met in the Co-op's common room for meetings. The Co-op operates under the Co-operative Corporations Act. The Co-op's Board of directors has adopted a complex meeting structure with partial participation virtually and partially on paper with members in their homes through sharing the virtual meeting through transcripts of the meeting, DVD of the meeting, and online links to the meeting. The meeting occurs over several days, the agenda, documents, comments, are distributed to all who indicate that they wish to participate and the home based members write their responses for distribution back to the secretary. Votes are by secret paper ballot and not during the virtual part of the meeting. This complex process is adopted because virtual meetings have reduced participation to 20% of normal participation. This is barely a quorum and unhealthy. Is sharing recordings of the virtual meetings lawful? All participants in the virtual meeting are informed that the meeting is recorded and will be shared. Virtual participants do not have to have their camera's on and do not have to speak. Platform chat features are activated to allow virtual participants to participate in writing. The Co-op Board is concerned that an exclusively virtual process is disenfranchising Members and hence the need to mix virtual with paper and documents delivered to members' homes. Members at home send in replies, make comments, and their comments are shared with all members including virtual participants.
The Government of Ontario made temporary changes to the provisions of the Co-operative Corporations Act, RSO 1990, c C.35 that permitted co-operative corporations governed under the statute to call and hold meetings virtually, as applicable, notwithstanding certain restrictions or requirements:
Meeting by Electronic Means, Members’ Meetings
1 The operation of subsections 74 (3) to (5) of the Act is temporarily suspended and the following replacement provisions are in effect during the Temporary Suspension Period only:
Meeting by electronic means
(3) Whether or not the articles or by-laws of a co-operative so provide, a meeting of the members of a co-operative, including a meeting of the members of a non-profit housing co-operative, may be held by telephonic or electronic means by which all members participating in the meeting can hear each other, and a member who, through those means, votes at the meeting or establishes a communications link to the meeting is deemed for the purposes of this Act to be present at the meeting.
Same
(4) A meeting held under subsection (3) is deemed to be held at the place where the head office of the co-operative is located.
Definition of “telephonic or electronic means”
(5) For the purposes of this section and sections 75, 76 and 90,
“telephonic or electronic means” means telephone calls or messages, facsimile messages, electronic mail, transmission of data or information through automated touch-tone telephone systems, transmission of data or information through computer networks, any other similar means or any other prescribed means.
2 The operation of subsection 75 (3) of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Poll
(3) If a poll is demanded, it shall be taken in such manner as the by-laws prescribe, and, if the by-laws make no provision therefor, then as the chair directs.
Changes re meeting after notice given
(4) If a notice of meeting of members or shareholders has been given in respect of a meeting to be held on a day that falls within the period of the declared emergency and, after the notice is given, the date, time or place of the meeting is changed in order to hold the meeting by telephonic or electronic means, another notice of meeting is not required to be given but members, shareholders and any other person entitled to receive the notice must be informed of the change in a manner and within a time that is reasonable in the circumstances.
Suspension of In-Person Voting
3 The operation of subsection 76 (4) of the Act is temporarily suspended.
Voting by Electronic Means
4 The operation of subsection 76 (5) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Voting by other means
(5) Whether or not the articles or by-laws of a co-operative, including a non-profit housing co-operative, so provide, voting may take place by mail or by telephonic or electronic means.
Time Extension for Annual Meetings
5 The operation of section 77 of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Annual meetings
77 (1) A co-operative shall hold an annual meeting of its members not later than eighteen months after its incorporation and subsequently not more than fifteen months after the holding of the last preceding annual meeting and at such meeting any member shall have an opportunity to raise any matter relevant to the affairs and business of the co-operative.
Annual meetings, time extension
(2) Despite subsection (1), if the last day on which a meeting is required to be held under subsection (1) is a day that falls within the period of the declared emergency, the last day on which the meeting is instead required to be held is no later than the 90th day after the day the emergency is terminated.
Same
(3) Despite subsection (1), if the last day on which a meeting is required to be held under subsection (1) is a day that falls within the 30-day period that begins on the day after the day the emergency is terminated, the last day on which the meeting is instead required to be held is no later than the 120th day after the day the emergency is terminated.
Election of Directors by Electronic Means
6 The operation of subsection 90 (1) of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Election of directors
(1) The directors shall be elected by the members in general meeting, and the election shall be by ballot in the manner prescribed by section 91.
Method of voting or election
(1.1) Where a general meeting of members referred to in subsection (1) is held by telephonic or electronic means in accordance with subsection 74 (3), the chair shall conduct a vote or election by ballot in the manner prescribed by section 91, otherwise the chair may direct the vote or election by alternate means.
Meeting by Telephone, Board and Executive meetings
7 The operation of subsection 94 (3) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Meetings by telephone
(3) Whether or not the by-laws or articles of a co-operative provide otherwise, any director may participate in a meeting of the board of directors or of the executive committee by means of conference, telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and a director participating in a meeting pursuant to this subsection shall be deemed for the purposes of this Act to be present in person at that meeting.
Information to be Laid Before Annual Meeting
8 The operation of subsection 128 (1) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Information to be laid before annual meeting
(1) For an annual meeting of the members held on a day that is in the period that begins March 17, 2020 and ends on the 120th day after the day the declared emergency is terminated, the directors shall lay before the meeting,
(a) a comparative financial statement relating separately to,
(i) the period that commenced on the date of incorporation and ended before the annual meeting or, if the co-operative has completed a financial year, that commenced immediately after the end of the last completed financial year and ended before such annual meeting, as the case may be, and
(ii) the period covered by the financial year next preceding such latest completed financial year, if any,
made up of,
(iii) a statement of profit and loss for each period,
(iv) a statement of surplus for each period,
(v) a statement of patronage returns allocated to members during the year,
(vi) a statement of source and application of funds for each period, and
(vii) a balance sheet as at the end of each period;
(b) the report of the auditor to the members; and
(c) such further information respecting the financial position of the co-operative as the articles or by-laws of the co-operative require.
The temporary changes were extended to May 31, 2021, per O Reg 543/20, Extension of Temporary Suspension Period:
Extension of temporary suspension period for certain provisions
1. For the purposes of sections 1, 3, 4, 6 and 7 of the Schedule to the Act, the temporary suspension period is extended to end on May 31, 2021.
2. Omitted (provides for coming into force of provisions of this Regulation).
Ontario does not have any privacy legislation that is applicable to the private sector. However, the federal Personal Information Protection and Electronic Documents Act, SC 2000, c 5 ("PIPEDA") applies to private sector organizations that are not federally regulated, as well as federally-regulated organizations, in respect of personal information that the organization collects, uses or discloses in the course of commercial activities per Summary of privacy laws in Canada, Office of the Privacy Commissioner of Canada, January 2018):
Application
4 (1) This Part applies to every organization in respect of personal information that
(a) the organization collects, uses or discloses in the course of commercial activities; or
(b) is about an employee of, or an applicant for employment with, the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.
"Personal information" is defined as information about an identifiable individual:
Definitions
2 (1) The definitions in this subsection apply in this Part.
[...]
personal information means information about an identifiable individual. (renseignement personnel)
Principle 3 of Schedule 1 of PIPEDA provides that the knowledge and consent of an individual are required for the collection, use, or disclosure of personal information, except where inappropriate. The circumstances that may make it inappropriate to obtain consent are varied. Several examples are provided. One of the examples is when an organization acquires a mailing list from another organization. In that case, the organization providing the list would be expected to obtain consent before disclosing the personal information:
4.3 Principle 3 - Consent
The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example, legal, medical, or security reasons may make it impossible or impractical to seek consent. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the information. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally incapacitated. In addition, organizations that do not have a direct relationship with the individual may not always be able to seek consent. For example, seeking consent may be impractical for a charity or a direct-marketing firm that wishes to acquire a mailing list from another organization. In such cases, the organization providing the list would be expected to obtain consent before disclosing personal information.
Despite the open-endedness of the note in Principle 3, s. 7 of PIPEDA specifically defines the circumstances in which organizations are exempted from the consent requirement for the collection, use, or disclosure of personal information. There is no explicit exception for acquiring a mailing list from another organization:
Collection without knowledge or consent
7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if
(a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way;
(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;
(b.1) it is contained in a witness statement and the collection is necessary to assess, process or settle an insurance claim;
(b.2) it was produced by the individual in the course of their employment, business or profession and the collection is consistent with the purposes for which the information was produced;
(c) the collection is solely for journalistic, artistic or literary purposes;
(d) the information is publicly available and is specified by the regulations; or
(e) the collection is made for the purpose of making a disclosure
(i) under subparagraph (3)(c.1)(i) or (d)(ii), or
(ii) that is required by law.
Use without knowledge or consent
(2) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if
(a) in the course of its activities, the organization becomes aware of information that it has reasonable grounds to believe could be useful in the investigation of a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, and the information is used for the purpose of investigating that contravention;
(b) it is used for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual;
(b.1) the information is contained in a witness statement and the use is necessary to assess, process or settle an insurance claim;
(b.2) the information was produced by the individual in the course of their employment, business or profession and the use is consistent with the purposes for which the information was produced;
(c) it is used for statistical, or scholarly study or research, purposes that cannot be achieved without using the information, the information is used in a manner that will ensure its confidentiality, it is impracticable to obtain consent and the organization informs the Commissioner of the use before the information is used;
(c.1) it is publicly available and is specified by the regulations; or
(d) it was collected under paragraph (1)(a), (b) or (e).
Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;
(b) for the purpose of collecting a debt owed by the individual to the organization;
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,
(
