Regina v Stewart: Is Information Property?

• Author: C. Ian Kyer
• Pages: 353-391

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ReginavStewart

Is Information Property?

CIanKyer

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?

Ifsowhateectmightthethreatofsuchacriminalprosecutionhaveonthe

freeowofinformationandknowledgeThesewerethequestionsthatwere

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

ﾇﾉﾈCIanKyer

caseandwhytheyneveraainedt hatgoalIntheprocessthereares everal

lessons in law reform to be learned.

ReginavStewartisacaserepletewithironyItaroseoutofanaemptby

a trade union to obtain the names a nd addresses of waiters and waitresses

atanairportstriphotelinaneorttounionizetheemployeesandyetitwas

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

Howisitthatwhatwasatrstblushasimplerelativelyinsignicantact

— 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

implications.

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

HoteltoresistunionizationofhiswaiterswaitressesandkitchenstaOnce

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

ReginavStewartIsInformationPropertyﾇﾉﾉ

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

unionizethehotel

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

newvotebasedontheBoardsnopropagandaruleOnNovember

theBoa rdhaddir ectedt hetaki ngofaseco ndprehear ingvote but as in t he

rstvotetheuniondidnotreceivesupportsucientforcertication

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

leerwaspreparedandhewasletgo