Regina v Stewart: Is Information Property?

AuthorC. Ian Kyer
Is Information Property?
R S , a decisionoftheSupremeCourtofCanadahasbeen
said to “represent a milestone in Canada’s march into the Information Age.”
Cited in many common law texts in Canada and elsewhere as sta nding for
thepropositionthatcon dentialinformationisnot propertyandcan notbe
stolen,itwasoneofas eriesofcasesinthesthatheraldedt hedawnof
Information Technology (“IT”) law in Canada.
Thecasebothreec tedandstimulatedalivelydebateinthesabout
the nat ure ofpr oper tya ndwh eth erco nde nti ali nfor mat ions houl dbet rea t
edassuch Couldabusinessbe saidtoownitscon dentialinformationIf
someonegainedu nauthorizedaccesstoth atinformationcouldthat person
be said to have stolen property of the business and be prosecuted for thef t?
asked in and about the Stewar t case as it made its seven year journey through
the Canadian legal system from t he laying of charges to the trial to the On
tario Court of Appeal and ultimately to the Supreme Court of Canada.
One would expect that such a frequently cited and much debated case
would be well understood, but there are many aspects of this c ase that have
remained unk nown or not fully appreciated. My intention is to look beyond
the proposition for which Reginav Stewart is said to stand and the debate
it engendered to explain how it arose, why it became a test case, what the
OntarioAorneyGeneralsocewasseekingtoach ieveinprosecutingthe
caseandwhytheyneveraainedt hatgoalIntheprocessthereares everal
lessons in law reform to be learned.
a trade union to obtain the names a nd addresses of waiters and waitresses
in no way treated as a labour law case. It was a harbinger of the Information
Ageandcomputerizationbutitwasas lowtechascouldbeNocomput
erswereinvolved justcomputerprintoutsstored inale cabinetItwas
a case about the stealing of inform ation but it did not involve the taking of
anything. No information was copied or even accessed. In a case t hat would
make its way to the Supreme Court of Canada no one lost anything and, as
we shall see, no one’s liberty was at risk. Furthermore, this case about con
dentialinformation didnotinvolveanyvaluablecondential businessin
formation. There was no carefully gua rded business formula stolen through
industrialespionagejustthenamesandaddressesofrestaura ntwaitsta
— the unsuccessful cou nselling of the copying of some seemi ngly innocu
ous employee information — was prosecuted at all and that when it was it
became a leading case? Interestingly, it was its very simplicity (and the fact
that the defendant had a young counsel barely out of law school) that led
theOntar ioAorneyGeneralsoceto selectthe Stewartprosecutiona sa
test case on several important legal issues with broad soc ial and business
Judges, lawyers, academics, and government representatives all were
active participants in a debate about whether condential information
should be treated as property. It was a question that concerned and troubled
many at the dawn of the Information Age. But as we shall see there was an
other aspect of this ca se that was undisclosed and of practical importance
totheOntario AorneyGeneralsoceandtoaser iesofothercasesbefore
the courts.
Thei mmediate contextof thecas ealongsta ndinga ndverybi erlabour
dispute, would play no part whatsoever in the judicial analysis and treat
ment of the case or in the debate that it stimulated. Reginav Stewart arose
outoft hestrenuouseorts ofthe ownerand operatorofthe Constellation
selected as a test case, however, the labour issues were intentionally sup
pressedIn dierentci rcumstancesonecouldimag inea verydierent ap
proach to this case. It might have served as a companion case to Harrison v
Carswell.Ineach instance therights ofunionized labourto conductunion
businesscame intoconictwitht hepropertyrightsof othersInHarrisonv
Carswell, judges were asked to balance the labour rights of picketers and the
property rights of a mall owner. Six judges of the Supreme Court of Canada
held that a mall owner could eject any person he or she wanted to, for any
or no reason, while three dissenting judges favoured the rights of picketers
over these property rights. The Ste wart case might have been seen as requi r
ing the balancing of the r ights of a union to obtain certain basic information
neededtofacilitatea unioncertication voteagainsttheright ofemployers
totreatt hatinform ationasconde ntialproprie taryin formationT herewas
however, no balancing of labour rights a nd property rights i n ReginavStew-
art. There was no discussion of labour law at all. Nevertheless, the facts ca n
onlyreally beunderstood ifwelook atthe laboursunsuccessful eortsto
The Constellation, a large hotel near what was then known as t he Toronto
Internatio nalAirporte mployedapproximatelyful landparttimest a
Throughoutthe summerandfall ofthe HotelRestaurantCafeteria
EmployeesUnionLocalhad beentr yingto unionize itswaitersA pri
orunsuccessfu laempthadbeenmade inthesIn theunion had
obtaineda norderofthe OntarioLabour RelationsBoardfora certication
vote. The employees had rejected the un ion, but the union had asked for a
theBoa rdhaddir ectedt hetaki ngofaseco ndprehear ingvote but as in t he
Theunionalthought wicedefeatedinacerticationvotehadnotgiven
upOn a number of occ asions union organizers were told to stay o the
hotelproperty butitwasa nemployeetermination thatbroughtthe maer
again before the Board. Tom Grougiannis, a waiter in the Burgundy Room,
had recruited six others for the u nion. In late July he was called to a meet
ing with the hotel’s general manager and his supervisor, and was warned
about harassing and molesting employees. About a month later Grougiannis
was involved in another exchange with management. He had been working
in the kitchen when his superv isor came in and said that he was to be sent
home for talking to certain women about the un ion. Finally, in September,
after a female personal assi stant alleged that he had sexually harassed her,
Grougiannis was asked to put his explanat ion in writing. When he failed to
producethew rienexplanat ionforwhichheh adbeenaskedat erminatio n

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