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Official Magazine of the Ontario Bar Association - A Branch of the Canadian Bar Association

April 2011 | Vol. 36 No. 2

EnBref

Brieflyspeaking

Eye o n P riv ac y


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BRIEFLYspeaking OBA Officers/ Comité directeur de l’ABO R. Lee Akazaki President/Président Paul R. Sweeny 1st Vice President/1er Vice-président Morris A. Chochla 2nd Vice President/2e Vice-président Sean M. Kennedy Secretary/Secrétaire Douglas R. Downey Treasurer/Trésorier Carole J. Brown Immediate Past President/Présidente sortante Steve Pengelly Executive Director/Directeur exécutif Editorial Board/Comité rédacteur James Morton Chair / Président Steinberg Morton Hope & Israel LLP Nancy Cooper Nancy E. Cooper Law Office Alastair Clarke York Community Services The Honourable Justice Heather McGee Superior Court of Justice

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OBeA Bencher

You’ve Got Mail

“Unbundle” Me!

Institute 2011

Chantal Brochu Buset & Partners LLP The Honourable Doug Lewis Lewis Downey Tornosky Lassaline & Timpano Jeffrey S. Percival Pallet Valo LLP J. Andrew Sprague Miller Thomson LLP Questions or Comments? / Questions ou commentaires? Editorial Team, Briefly Speaking/ Rédaction, En bref Robert Mitchell Director, Communications and Marketing/ Directeur, communications et marketing 416-869-1047 ext/poste 318 rmitchell@oba.org Catherine Brennan Communications Specialist/ Spécialiste de communications 416-869-1047 ext/poste 357 cbrennan@oba.org Cheryl Crocker Marketing Specialist/ Spécialiste marketing 416-869-1047 ext/poste 309 ccrocker@oba.org Rob Gilmour Advertising Sales Vente d’annonces 416-869-1047 ext/poste 406 rgilmour@oba.org

FEATURES Get Out The Vote: 2011 Bencher Elections | Doug Lewis | 11 Privacy In The Technological Age | Jennifer Stoddart | 14 “Wagging” Tongues: Protecting Privacy in Criminal Disclosure | Nancy E. Cooper | 18 Protecting Privacy as our Electrical Grid Gets Smarter | Ann Cavoukian | 20 Think Before You Click | Cheryl Crocker | 22 Profile: Donald Carr | J. Andrew Sprague | 23 You’ve Got Mail | Katherine Cooligan | 26 “Unbundle” Me! | John O’Sullivan | 30 Naming and Shaming in the Family Court | Fareen Jamal | 32 Improving Legal Aid | 34 Citi Cards Canada v. Pleasance | James Morton | 39 Buzzing at Institute 2011 | 40

COLUMNS Nota Bene | 2 Letters to the Editor | 5

Filippo Conte Bilingual Communications Specialist/ Spécialiste bilingue de communications publiques 416-869-1047 ext/poste 346

President’s Message | Message de la président | 6

Janet Weldon Graphic Design/Graphisme 416-869-1047 ext/poste 363

Advocacy In Action | Bencher Election Campaign Underway | 37

Spotlight On Sections | Privacy Law | Laura W. Davison | 10 Just For Laughs | Cloak and Dagger Litigation | Marcel Strigberger | 28

Snapshots | Institute 2011 | 41 Supreme Court of Canada Update | Eugene Meehan | 42 OBA Notice Board: Upcoming Events | 44

Publications Agreement Number 40069139 Return Undelivered Canadian Addresses to: OBA | 300-20 Toronto St Toronto, ON | M5C 2B8

The opinions expressed by the authors in Briefly Speaking are not necessarily the approved views of the OBA.

Briefly Speaking • En Bref | April 2011

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Nota BenE

Nota Bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene nota bene SUPERIOR COURT OF JUSTICE The Honourable Madam Justice Carole J. Brown, a lawyer with Borden Ladner Gervais LLP in Ottawa, is appointed a Judge of the Ontario Superior Court of Justice (Toronto) to replace Madam Justice D. Bellamy, who resigned effective August 16, 2010.

Madam Justice Brown received a Bachelor of Arts (B.A.) from Middlebury College in 1972 and a Master of Arts (M.A.) from the Université de Paris V (Sorbonne) in 1974. She received a D.E.S.E.E. (Diplôme d’études supérieures pour étudiants étrangers) from the Université de Caen, France in 1973. She received a Bachelor of Laws (LL.B.) from the University of Toronto in 1982 and was admitted to the Ontario Bar in 1984.

Madam Justice Brown has been an associate and partner at Borden Ladner Gervais LLP since 1985. She was a law clerk to the Chief Justice of Ontario from 1984 to 1985. Her main areas of practice were professional negligence, insurance defence work, personal injury and Supreme Court agency work. Madam Justice Brown is the past immediate president of the Ontario Bar Association and board member of the Canadian Bar Association. She was a member of the Supreme Court of Canada/ Canadian Bar Association Liaison Committee from 2007 to 2009. She has been an instructor of an intensive mediation course with the Faculty of Law at the University of Ottawa since 2000, and an instructor of Civil Litigation at the Bar Admission Course of the Law Society of Upper Canada. She is on the Board of Directors at the University of Ottawa Heart Institute Foundation. The Honourable Glenn A. Hainey, a lawyer with Gowling Lafleur Henderson LLP in Toronto, is appointed a Judge of the 2

Ontario Superior Court of Justice (Toronto) to replace Madam Justice E. N. Macdonald, who elected to become a supernumerary judge as of December 15, 2010.

Mr. Justice Hainey received a Bachelor of Arts & Science (B.A.Sc.) in 1971 and a Bachelor of Laws (LL.B.) in 1974 from the University of Western Ontario. He was admitted to the Ontario Bar in 1976.

Mr. Justice Hainey was a lawyer with Smith Lyons Torrance Stevenson & Mayer (1981-2001), which merged with Gowling Lafleur Henderson LLP in 2001. He practised criminal law in association with Arthur Maloney, Q.C., from 1979 to 1981 and was Executive Assistant to the Ombudsman for the Province of Ontario from 1976 to 1979. His main area of practice was civil litigation. Mr. Justice Hainey is a Bencher of the Law Society of Upper Canada and a member of several subcommittees, including Access to Justice, Professional Regulation, Paralegal Standing, Audit, Proceedings Authorization Committee and Vice-Chair of the Inter-Jurisdictional Mobility Committee. He is a past Director of The Advocates’ Society of Ontario, past Chair of the Enforcement Practices and Procedures Committee of the Canadian Bar Association’s National Competition Law Section, and President of the University of Western Ontario’s Faculty of Law Alumni Association. He is a frequent speaker and has published numerous articles. He is also active in several community organizations. The Honourable Christopher Bondy, of Wolf Hooker Professional Corporation in Windsor, is appointed a Judge of the Ontario Superior Court of Justice (Windsor) to replace Mr. Justice

April 2011 | Briefly Speaking • En Bref


Nota Bene D.J. Power (Ottawa), who elected to become a supernumerary judge as of October 17, 2010 and whose position was transferred to Windsor. Mr. Justice Bondy received a Bachelor of Arts (B.A.) in 1973 and a Bachelor of Laws (LL.B.) in 1976 from the University of Windsor. He was admitted to the Ontario Bar in 1978.

In 1980, Mr. Justice Bondy founded the Bondy Baker Wolf law firm, now known as Wolf Hooker Professional Corporation. He has been the Chairperson of the Canada Pension Plan, Old Age Security Review Tribunal since 2008 and was the Chairperson of the Consent & Capacity Board from 2001 to 2004. He was a lawyer with Bondy Kirwin from 1978 to 1980. His main area of practice was administrative law, including presiding on and appearing before administrative tribunals, alternative dispute resolution/mediation, corporate, commercial, tax, wills and estates, trusts, municipal law and provincial offence prosecutions. Mr. Justice Bondy was a sessional instructor at the University of Windsor from 1999 to 2005 and was past instructor of the Bar Admission Course. He is the director and officer of several charitable and community-based organizations where he provides counsel pro bono. He has made numerous legal education presentations. The Honourable Robert R. Reid, a lawyer with Lancaster, Brooks & Welch LLP in St. Catharines, is appointed a Judge of the Ontario Superior Court of Justice (Hamilton) to replace Mr. Justice J.W. Quinn, who elected to become a supernumerary judge as of December 19, 2010 and whose position was transferred to Hamilton.

Mr. Justice Reid received a Bachelor of Arts (B.A.) from the University of Toronto in 1973. He received a Bachelor of Laws (LL.B.) in 1976 and a Master of Laws (LL.M.) in 1979 from Osgoode Hall Law School. He was admitted to the Ontario Bar in 1978. Mr. Justice Reid has been a partner with Lancaster, Brooks & Welch LLP (formerly Lancaster, Mix & Welch) since 1982. He was a partner with Freeman, Frayne, Morningstar & Reid from 1978 to 1982. His main areas of practice are labour relations and employment law.

Mr. Justice Reid was a member of the Lincoln County Law Association, the Ontario Bar Association and the County and District Law Presidents’ Association. He was a part-time federal prosecutor from 1989 to 1996. He is a columnist with the St. Catharines Standard and has written various employment-law related papers for business and public education events. He has been a board member of numerous community organizations, including the United Way and Rotary Club of St. Catharines. The Honourable Victor Mitrow, a lawyer with McKenzie Lake Lawyers LLP in London, is appointed a Judge of the Ontario Superior Court of Justice, Family Division (London) to replace Mr. Justice R.J. Harper, who was appointed Senior Judge of the Family Division on September 30, 2010. Mr. Justice Mitrow received a Bachelor of Mathematics (B. Math) from the University of Waterloo in 1974 and a Bachelor Briefly Speaking • En Bref | April 2011

of Laws (LL.B.) in 1977 from the University of Western Ontario. He was admitted to the Ontario Bar in 1979.

Mr. Justice Mitrow has been a partner at McKenzie Lake Lawyers LLP (created from a merger of Ross, Bennett & Lake with McKenzie, Nash, Bryant) since 1998. He was a partner at Ross, Bennett & Lake (merged with Mitchell & Mitrow) from 1985 to 1998 and a partner with Mitchell & Mitrow from 1979 to 1985. His main area of practice was family law.

Mr. Justice Mitrow has represented the Sarnia-Lambton Children’s Aid Society as outside counsel since 2001. He was appointed by the Office of the Children’s Lawyer to the panel of Lawyers at London (1987-2001) and was also a member of the executive of the Middlesex Family Lawyers Association (19921998). He is a frequent speaker and presenter at numerous seminars and conferences, and was an instructor at Fanshawe College. He has been an active member of the Canadian Diabetes Association and a past member of the Rotary Club of London. The Honourable Brian W. Abrams, a partner at Templeman Menninga LLP in Kingston, is appointed a Judge of the Superior Court of Justice of Ontario, Family Division (Kingston) to replace Mr. Justice G.A. Campbell, who elected to become a supernumerary judge as of August 1, 2010.

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Nota BenE Mr. Justice Abrams attended the RCMP Academy in Regina in 1981. He then attended the Faculty of Arts and Sciences (19881993) and received a Bachelor of Laws (LL.B.) in 1996 from Queen’s University. He was admitted to the Ontario Bar in 1998. Mr. Justice Abrams has practised with Templeman Menninga LLP since 1998. He has been a Standing Agent (Ad Hoc Drug Prosecutor) for the Department of Justice Canada since 1999. Prior to his call to the Ontario Bar, he was an RCMP officer posted in Canada and abroad (1981-1998). His main area of practice was general litigation with an emphasis on family law, criminal law and insurance law. Mr. Justice Abrams was an adjunct professor in the Police Foundations Program at St. Lawrence College (2000-2002). He has been a volunteer with the Ontario Lawyers’ Assistance Program Peer Counselling since 2000 and a Board Member of Kingston Youth Unlimited since 2008. He is also an author and co-author of research papers, as well as a lecturer and panellist at numerous conferences. Human Rights Tribunal of Ontario

The following OBA members have been appointed to the Human Rights Tribunal of Ontario: Maureen Doyle Ian Mackenzie Douglas Sanderson Catherine Bickley Denyse Diaz Janice Johnston Michael Lerner Yasmeena Mohamed Alan Smith

In Memoriam

John Murray Hodgson Q.C., L.S.M. There are few very people in the legal profession who can boast of the kind of career enjoyed by John M. Hodgson. Hodgson died peacefully at his home on Monday, January 24th, 2011 in his 90th year. What made his career so remarkable was his enduring association with the firm Blake, Cassels & Graydon LLP. Hodgson served the firm for more than 65 years as a student, associate, partner and partner emeritus. A remarkable achievement by today’s standards. Hodgson also found time to be a loyal member of the Ontario Bar Association and served as its president from 1970 to 1971. His later life was devoted to the charitable foundation he established called the Canadian Centre for Philanthropy, now known as Imagine Canada. He was also a founding member of ALERT (Advancement of Legal Education and Research Trust), the charitable arm of the OBA. Since its creation in 1985, ALERT has supported several initiatives including the Bertha Wilson Task Force on Gender Equality in the legal profession, the Sopinka Cup Moot Competition and various other fundraising activities. 4

Only last year, Mr. Hodgson was honoured as the first “Patron” in recognition of the many contributions he made to Imagine Canada. He spent many generous hours advising on the development of new initiatives for Imagine Canada. Notably the Nonprofit John Hodgson Library and most recently with support for Imagine Canada’s National Engagement Strategy (through the Agora Foundation), created a space for convening the sector across the country. Many of his colleagues came to know him as a cornerstone to Imagine Canada, however, his influence on the sector reached well beyond Canada. He was known as a great champion of knowledge and educational services to charities and nonprofits, particularly in the area of legal and regulatory issues. This passion manifested itself in accomplishments such as co-founding The Philanthropist Journal and the establishment of the original National Committee on Charitable Organizations, all alongside a prolific and long legal career.

One of his proudest achievements in later life was the establishment of the eponymous John Hodgson Library. His keen interest in the development of the online library and the website that houses it (Nonprofit Library) and access to knowledge was called inspirational. Fully supportive of the library’s evolution to use technology to get the information out there, he was confident that technology and the establishment of a digital library was the right approach. Given his strong interest in philanthropy it’s not surprising to learn Hodgson’s professional career focussed on individuals, their legal needs, and on public and legal training and on charity law and not-for profit organizations. As a boy he attended Upper Canada College, and Trinity College at the University of Toronto. After three years overseas and service in Italy with the 48th Highlanders, he attended Osgoode Hall, Toronto and was called to the Bar in 1949.

He was awarded his Q.C. in 1968 and the Law Society Medal in 1988. His life was built around the love and 58 year partnership with his wife, Joan Morris Hodgson Q.C. and his family. He was the loving father of James (Jane Dams) and Matthew (Andria Dams) of Guelph and Barbara (Walter McCormick) of Toronto and proud grandfather of Caitlin, Hannah and Elizabeth Hodgson and William, Maggie and Connor McCormick. He is survived by his sister Joan Vatcher and predeceased by his sisters Mary Rogers Doherty and Barbara Hodgson Savage. The extent and variety of his contribution to the professional areas of taxation, wills and trusts and of charity and notfor-profit fields was continual and substantial throughout his life and well into his retirement. It included involvement in both the technical and educational fields. He managed an almost continual supplement of charitable work in addition to his normal work, and was widely recognized as a leader in this field.

April 2011 | Briefly Speaking • En Bref


Letters to the Editor

Letters to the Editor Re: Civility v. Incivility: The A-Hole Factor in the Practice of Law by Eugene Meehan (February, 2011) Great advice especially for young lawyers. My responses (learned—painfully—over a long career): When someone is hurling imprecations: “Thank you for your hortatory comments”. This usually silences them because they don’t know what hortatory means. Works in letters too! As for never responding in kind: Do not argue with an idiot. He will drag you down to his level and beat you with experience. When counsel answers questions over objections: “Counsel, if you persist in giving answers I will call in the Special Examiner and have you sworn.” That usually ends it because they know (or should know) they can’t be counsel and witness in the same matter.

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Keep up the great work! – Robert C. Taylor Re: Civility v. Incivility Only being licensed in Ontario for one year, I must say that I am saddened to admit that I’ve experienced/witnessed all forms of incivility by my adversaries during cross-examinations. Not surprisingly, during those examinations that are video-taped, these unidentified lawyers remain silent. Unfortunately, I thought that incivility would stop at the border. Rather, I’ve witnessed a few notches up compared to NYC. I suppose these lawyers were attempting to impress their real client­—the Wall Street firm that engaged their services. – Andrew Moraganti

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Re: Civility v. Incivility I thoroughly enjoyed the “Two Pigs Rule” which I found in a recent article [Eugene Meehan] wrote. I have put it in a place that is within easy reach. It made me realize I’ve been trying to teach a few pigs how to dance lately. In keeping with that line of thinking, I thought you might enjoy the following quote from Khalil Gibran: “I have learnt silence from the talkative, toleration from the intolerant, and kindness from the unkind; yet strange, I am ungrateful to these teachers.” – Cynthia Hiebert-Simkin Farley Cohen • Ross Hamilton • Peter Steger • Paula Frederick • Prem Lobo

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Have Your Say. Write to us at brieflyspeaking@oba.org

Briefly Speaking • En Bref | April 2011

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President’s Message

Why Privilege is Sacred Lee Akazaki

The idea of the sacred is quite simply one of the most conservative notions in any culture, because it seeks to turn other ideas­— Uncertainty, Progress, Change—into crimes.

– Salman Rushdie, « Is Nothing Sacred? »

These are the words of an author who dared believe literature was a privileged arena of free speech. Harold Pinter delivered them to a live audience on his behalf on February 6, 1990. Rushdie paid for his delusion with a decade of his life during which Iran’s theocratic state forced him into hiding.

In 2006, Alexander Litvinenko was duped into drinking tea laced with radioactive polonium. The former KGB spy wrote two books exposing Putin’s Russia, while living as a political asylee in the United Kingdom. Recently, Amnesty International Media Award winner Julian Assange has faced death threats over the work of his whistleblower foundation, Wikileaks. U.S. prosecutors have summoned Twitter.com to disclose the private information of Assange and his supporters. Tom Flanagan, the Canadian political scientist featured in the Fall, 2010, issue of the CBA’s National magazine, declared on CBC television: “I think Assange should be assassinated, actually. I think Obama should put out a contract and maybe use a drone or something.” Flanagan has since retracted the comments. Yet what he spoke was true. The nation state is hard-wired to swat an embarrassing scribe like a mosquito supping its last meal.

Rushdie, Litvinenko and Assange are outlaws. The term was coined by the Romans to describe enemies of the state summarily sentenced to the brutal fate of having the protection of the law withdrawn. The vengeful sovereign, to borrow from Austinian legal theory stripped bare, is an empire of 6

words backed by force or kept secret by force. State privilege, be it a literary portrait of the Prophet, the inner workings of the Kremlin, or U.S. diplomatic cables, is a zone of privacy considered necessary for exercise of state power. Cross the line into the zone, and all privileges may be terminated.

Outlawry, abolished by habeas corpus, has come back with a vengeance in the Information Age. Outlaws live (or die) in legal limbo between celebrity and political prison. Publication of political secrets appeals to a public disenchanted by representative government, and is the power of the Sixth Estate. (The traditional press being the Fourth, and pundits such as Flanagan being the Fifth.) The water-cooler debate over “Cablegate” has a serious dimension. Is the Wikileaks model of Open Government guerrilla info-terrorism, or is it the next level of political franchise? Are there a Left and a Right? Is it “irresponsible” because it exposes the workings of government, or is it “responsible” for the same reason? Rushdie, in equating the sacred with criminalization, contradicted himself by advancing literature as a sacred medium for individual expression. The Satanic Verses author foretold the clash we are about to witness between freedom and power. Lawyers must help the world harness the populist impulse wanting to know the leaked information. Should lawyers side with states as the sufferers of embarrassment, or call for legal protections for the publisher? The question is far from easy. The OBA has a responsibility to engage lawyers from all sectors in this debate. April 2011 | Briefly Speaking • En Bref


President’s Message Lawyers’ associations in the modern era have favoured mechanisms for greater public participation. Last December, I proudly led an OBA delegation, which met with the Hon. R. Roy McMurtry and delivered recommendations for his review of the Public Works Protection Act (the 1939 Act meant to protect public buildings from sabotage, under which the G-20 Regulation was made prior to the recent Toronto summit). The OBA prepared an impressive written proposal for replacing the outdated statute with a legal framework for protecting public spaces as places of democratic participation. It would showcase 21st Century Canadian values, the next time the world’s gaze is upon us. The OBA advocated balancing protection of dignitaries and institutions with the desire of people to be heard by world leaders. The battle lines are drawn between ideas of privilege. In Canada, “privilege” defines a right to conceal information, or to disclose with impunity, or to suspend others’ rights in favour of one’s own. Consider the following examples: •

• •

A point of personal privilege is a rule of parliamentary debate. The assembly suspends its deliberations to address the interest of one member.

Recent decades have witnessed reforms of privacy law relating to personal information. Nevertheless, privacy does not equate to privilege. Most private documents are capable of judicial compulsion under civil discovery or criminal disclosure orders. Utterances in Parliament or in court are beyond the reach of defamation law or the law of contempt.

Defamation law allows no immunity to literature and the press. Such expression is tolerated by the doctrine of Fair Comment. Fair comment is a limited defence, not a privilege.

The Supreme Court of Canada, in its 2010 decision in Globe and Mail v. Canada (Attorney General), held reporters’ sources are not protected by a stand-alone privilege. The Fourth Estate is not a safe haven for whistleblowers. Instead, an informant bears a real risk of being outed by the courts and “thrown to the dogs.”

Tell a lawyer a secret, and the court will not compel disclosure. Lawyer-client privilege is sacred to lawyers for many reasons, not the least of which is a marketing advantage. Fee-paying clients want to tell their story and receive advice. Lawyers are not beyond a good internecine tussle to undermine the one true privilege not belonging to the state. Last summer, the case of Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, pitted the CBA against the Criminal Lawyers’ Association (CLA). The CLA sought, inter alia, a public interest override to obtain solicitor-client privileged records in the hands of the Crown relating to a murder case. The court upheld the near-absolute status of the privilege. This status, having fended off challenges from statutory and constitutional law, bears witness to the vigilance of bar associations such as the CBA.

The last time Canada led on a transformational geopolitical phenomenon was Lester Pearson’s championship of United Nations Peacekeeping (the Blue-Helmet Brigade). Today, Canada can choose to join the chorus of nations calling for the outlawry of the Wikileaks model of the Sixth Estate. Or it can opt to provide the legal infrastructure for a new and difficult-to-govern building block of civilization. If the future of Open Government begins on these shores, it will need rules of engagement with existing political institutions. It will need an army of lawyers, maybe including you.

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Message du président

Pourquoi le privilège est sacré Lee Akazaki L’idée du sacré est tout bonnement l’une des notions les plus conservatrices au sein de n’importe quelle culture, parce qu’elle cherche à considérer comme des crimes les autres idées telles que l’incertitude, le progrès et l’évolution.

– Salman Rushdie, « Is Nothing Sacred? »

Ce sont les paroles d’un auteur qui a osé croire que la littérature était le lieu privilégié de la liberté d’expression. Harold Pinter les a prononcées le 6 février 1990 devant un auditoire en salle pour le compte de l’auteur. L’État théocratique d’Iran a contraint Rushdie à se cacher pour payer le prix de son délire pendant une décennie. En 2006, Alexander Litvinenko a bu du thé contaminé à son insu avec du polonium radioactif. L’ancien espion du KGB a rédigé deux livres mettant à nu la Russie de Poutine pendant qu’il vivait au Royaume-Uni avec le statut de réfugié politique.

Récemment, le récipiendaire d’un prix de journalisme d’Amnistie Internationale, Julian Assange, a fait face à des menaces de mort relativement au travail accompli par Wikileaks, sa fondation dénonciatrice. Les substituts du procureur général des États-Unis ont sommé Twitter.com de divulguer des renseignements confidentiels concernant Assange et ses partisans. Tom Flanagan, le politicologue canadien présenté dans le numéro d’automne 2010 de la revue National de l’ABC, a déclaré sur les chaînes de télévision de la SRC : « Je crois qu’Assange devrait être assassiné. Barack Obama devrait mettre sa tête à prix et peut-être utiliser un drone ou quelque chose ». Flanagan s’est depuis rétracté. Pourtant, ce qu’il a dit était vrai. La nation est blindée de protections et souhaite en finir avec un opposant politique embarrassant comme d’un moustique ingurgitant son dernier repas.

Rushdie, Litvinenko et Assange sont des hors-la-loi. L’expression attribuée aux Romains décrit les ennemis de l’État qui sont condamnés de façon sommaire à ne plus pouvoir bénéficier soudainement de la protection que confère la loi. Le souverain assoiffé de vengeance, pour emprunter l’expression telle quelle tirée de la théorie juridique austinienne, est formé d’un ensemble de termes soutenus par la force ou gardés se8

crets sous la contrainte. Le secret d’intérêt public, qu’il s’agisse d’une description littéraire du Prophète, du fonctionnement interne du Kremlin ou des câblogrammes de diplomates américains, constitue une zone confidentielle considérée comme nécessaire à l’exercice du pouvoir de l’État. Le fait de déborder dans cette zone entraîne la fin de tous les privilèges.

La mise hors-la-loi, abolie par l’habeas corpus, est revenue en force à l’ère de l’information. Les hors-la-loi vivent (ou meurent) dans une zone de vide juridique où ils louvoient entre la célébrité et la prison politique. La publication des secrets politiques plaît au grand public qui ne reconnaît plus le gouvernement qui le représente, et c’est là la puissance du sixième pouvoir. (La presse en général étant le quatrième et les pontes tels que Flanagan formant le cinquième pouvoir.) Le débat qui jette de l’eau froide sur le « Cablegate » est d’une portée incommensurable. Wikileaks est-il le modèle info-terroriste d’une guérilla livrée par le gouvernement transparent ou est-ce l’échelon supérieur d’influence politique? Y a-t-il une gauche et une droite? S’agit-il d’un « comportement irresponsable » étant donné que le fonctionnement du gouvernement est dévoilé ou s’agit-il d’un « comportement responsable » pour la même raison? Rushdie, en faisant passer la sphère du sacré à celle de la criminalisation, s’est contredit lui-même en présentant la littérature comme une canalisation sacrée pour l’expression personnelle. L’auteur de Les versets sataniques a prédit le conflit entre la liberté et le pouvoir, conflit dont nous serons bientôt témoins. Les avocats doivent aider le monde à canaliser l’élan populiste caractérisé par l’avidité vis-à-vis des fuites d’information. Les avocats devraient-ils se ranger du côté de l’État et souffrir de l’embarras causé ou exiger que l’éditeur bénéficie de protections juridiques? Voilà qui n’est pas une question facile. L’ABO a la responsabilité d’impliquer dans ce débat des avocats provenant de tous les secteurs. April 2011 | Briefly Speaking • En Bref


Message du président Les associations d’avocats de l’ère moderne ont préféré les mécanismes qui favorisent une plus grande participation du public. En décembre dernier, j’ai fièrement dirigé une délégation de l’ABO, qui a rencontré l’honorable R. Roy McMurtry et émis des recommandations dans le cadre de son examen de la Loi sur la protection des ouvrages publics (la Loi de 1939 a été édictée pour protéger les édifices gouvernementaux contre le sabotage et le Règlement du G-20 a été adopté avant la tenue récente du sommet de Toronto en vertu de cette Loi). L’ABO a rédigé une proposition impressionnante visant à remplacer la loi périmée par un cadre juridique pour la protection des espaces publics devant servir à la participation démocratique. Les valeurs canadiennes du 21e siècle y seraient mises en évidence, prêtes pour le moment où le monde entier jettera de nouveau son regard sur nous. L’ABO préconise l’équilibre entre la protection des dignitaires et des institutions et le désir des personnes de se faire entendre par les leaders mondiaux. Les idées relatives au privilège et les zones de conflit se côtoient. Au Canada, le « privilège » implique le droit de dissimuler des informations, ou de les divulguer tout en bénéficiant de l’impunité, ou de suspendre les droits d’autres personnes en faveur des siens. Penchons-nous sur les exemples suivants : •

• •

La question de l’immunité parlementaire est une règle faisant l’objet de discussions au parlement. L’assemblée suspend ses débats pour aborder une question d’intérêt concernant un seul parlementaire.

d’une bonne bousculade à l’interne susceptible de saper le seul vrai privilège qui échappe à l’État. L’été dernier, l’affaire Ontario (Sécurité du grand public) v. Criminal Lawyers’ Association, a eu pour résultat de faire se rebiffer l’ABC contre la Criminal Lawyers’ Association (CLA). La CLA a cherché, entre autres choses, à supplanter l’intérêt public afin d’obtenir des dossiers visés par le secret professionnel et détenus par la Couronne en rapport avec une affaire de meurtre. La cour a maintenu le statut presque absolu du privilège. Ce statut, qui a bravé tous les défis lancés en matière de droit constitutionnel ou législatif, témoigne de la vigilance des associations d’avocats telles que l’ABC.

La dernière fois où le Canada a été à la tête d’un phénomène géopolitique transformationnel, c’était lors du parrainage par Lester Pearson du maintien de la paix des Nations Unies (la troupe des casques bleus). Aujourd’hui, le Canada peut décider de se joindre à l’ensemble des nations qui exigent la mise horsla-loi du modèle Wikileaks du sixième pouvoir. Ou le pays peut choisir de se doter d’une infrastructure juridique en vue de jeter les fondements nouveaux et difficiles à gérer de la civilisation. Si l’avenir d’un gouvernement transparent commence avec ces fondements, des règles d’engagement devront nécessairement être définies avec les institutions politiques existantes. Il faudra toute une armée d’avocats, y compris peut-être vous.

Des réformes en matière de droit relatif au respect de la vie privée en ce qui concerne les renseignements personnels ont vu le jour au cours des dernières décennies. Néanmoins, le respect de la vie privée ne signifie pas le respect du privilège. La plupart des documents privés peuvent relever du domaine judiciaire en vertu d’ordonnances de divulgation criminelle ou de communication préalable au civil. Le droit en matière de diffamation ou d’outrage ne peut s’appliquer aux déclarations faites au parlement ou à la cour. Le droit en matière de diffamation n’accorde aucune immunité en ce qui concerne la littérature ou la presse. Une telle expression est tolérée dans le cadre de la doctrine dite du commentaire loyal. Le commentaire loyal est une défense limitée et non un privilège.

La Cour suprême du Canada, dans son jugement rendu en 2010 relativement à la cause Globe and Mail v. Canada (procureur général), a soutenu que les sources des journalistes ne sont pas protégées par un privilège distinct. Le quatrième pouvoir n’est pas un refuge sûr pour les dénonciateurs. Un informateur court le risque réel d’être trouvé en faute par la cour et d’être « jeté aux chiens ».

Révélez un secret à un avocat et la cour n’aura pas à exiger de divulgation. Les avocats tiennent pour sacré le secret professionnel qui les lie à leur client pour de nombreuses raisons, l’avantage lié au marketing, entre autres, y étant pour beaucoup. Les clients qui paient des honoraires veulent révéler des faits les concernant et obtenir des conseils. Les avocats ne sont pas à l’abri Briefly Speaking • En Bref | April 2011

9


spotlight on sections

Privacy Law Laura W. Davison

P

rivacy is a vibrant and increasingly significant area of law—in Ontario, in Canada and around the world. The number and variety of privacy statutes on the books continues to grow, as do the consequences of failure. Individuals enjoy privacy rights as consumers, as patients, as citizens and employees—rights that translate into obligations for organizations, both public and private sector, at virtually every turn. More and more, privacy is an area of law none of us can afford to overlook. Notably, it’s also one for which Canada is gaining widespread recognition as a leader internationally. WHO ARE WE?

The OBA Privacy Law Section boasts over 350 members. Lawyers working in-house and in private practice, lawyers in government and regulatory bodies, legal academics and law students: our membership represents a wide cross-section of the bar. The diversity reflects both the reach of privacy law and its growing importance. WHAT DO WE DO?

We are the voice of Ontario’s privacy bar in legislative reform, and a vital source of commentary and education to the legal profession. The section newsletter, Eye on Privacy, attracts authors from Ontario and beyond. Each year we contribute a program to the OBA’s Annual Institute. This year’s program gave participants an opportunity to hear directly from Industry Canada about Canada’s new anti-spam law, and learn from a panel of experts about the ever more important topic of privacy breach.

officers, designed to help the privacy bar understand what this key client population is looking for from its privacy advisors —their likes and dislikes as well as what’s keeping them up at night. The end of the year is also when we announce the recipient of the Section’s annual award of excellence, the Karen Spector Memorial Award for Excellence in Privacy Law. The award has a growing list of eminent recipients—the most recent, Privacy Commissioner of Canada Jennifer Stoddart. BECOME INVOLVED

There are many ways to become involved in the Privacy Law Section. If you’re new to privacy, come out to one of our programs or—better yet—become a member. There’s no better way to fast-track your privacy education. And if privacy is an issue you already deal with in your practice, let the Section help you showcase your expertise. Contribute an article to, Eye on Privacy, or respond to the call for nominations to the executive this spring. Whatever you choose to do, you can be confident the discussion will be stimulating and more than worth your while.

Laura Davison is deputy chief privacy officer of Deloitte and chair of the OBA Privacy Law Section Executive.

Upcoming Section programs include a lunch with the regulators, which will bring together a panel of representatives of the offices of the privacy and information commissioners of Canada as well as the Ontario Information and Privacy Commission. We’ll round out the year with a panel of chief privacy 10

April 2011 | Briefly Speaking • En Bref


OBA VOTES 2011

LSUC Bencher Campaign

Get Out The Vote

2011 Bencher Election

Doug Lewis By the time you read this article, the 2011-2015 bencher candidates will have been nominated and the election for benchers will be in full swing. What I hope to do with this column is to persuade you to cast your ballot.

I could fill this magazine with the tried and true arguments about democracy and how lucky we are to live in a country where we value the right to cast a vote for whomever you choose. Those arguments are for the votes that you cast in a broader sense as part of a civic right. What I want to appeal to is your gut feeling that it is in the interest of yourself and our profession that we cast a vote in this next election to choose the Benchers that will govern the profession during the next four years. Much is said these days about access to justice and the public interest. In my opinion, those mantra will only be delivered and protected by a profession that is strong, self-reliant, and feels that it is being properly remunerated for delivering access to justice and protecting the public interest. Some may say we are a privileged profession, difficult to get into, and protected by self-regulation. Be my guest. In my day, after a five year effort to become a chartered accountant I was told that the degree didn’t count and I needed at least two years of a university course in order to enter law school. I did the two years of arts and then took the three year law degree and bar admission course. Now a lawyer faces the LSAT after at least two years of arts and then faces law school and the current articling regime. Just as difficult, if not more so. While there is no question that members of our profession have the ability to make a very good living, let’s not take it for granted. In this day and age, far more members of our profession opt for a career in the public service, academia, nonprofit organizations, or as corporate counsel. As a percentage of the profession, the percentage of us in private practice has diminished.

So here we are on the front lines providing “access to justice” and “acting in the public interest” so that we comply with the mandate of the laws governing the Law Society. Compare the pressures there are on the public, corporate and academic sectors of the legal profession to provide access to justice and act in the public interest as opposed to what we face in private practice. Briefly Speaking • En Bref | April 2011

Those of us in private practice accept the challenge of what we are called upon to provide. We knew what we were getting into when we entered the profession. However the demands keep increasing, the regulations more onerous and the remuneration is quite frankly not commensurate with the education demands up front and the responsibility in practice. The elected benchers of the Law Society of Upper Canada can provide the balance. It is in our interests to elect those who know and appreciate the balance. Don’t get me wrong. I do not for a minute begrudge the remuneration of those members of our profession who are not in private practice. Nor, do I resent the fact that they do not face the same pressures and responsibilities as those of us in private practice. All I ask is that they appreciate my point of view and take it into account when they talk about access to justice and practising in the public interest. We need benchers who believe in a strong and healthy legal profession and stand up for the profession at the same time as they volunteer to regulate the profession.

If we elect benchers who get all wrapped up in the “flavour of the day” and trumpet access to justice, the public interest, and approach regulation of the profession in a rigid and inflexible manner without understanding that those of us in private practice must make a living, the profession, access to justice and the public interest will suffer in the long run.

So let me finish where I started. It is in the interest of the profession that we realize how necessary it is to elect a full complement of Benchers who understand that a strong, balanced profession is in the interest of the profession and the public. Be sure to vote.

For more information visit www.oba.org

Hon. Doug Lewis, Lewis Downey Tornosky Lassaline & Timpano

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OBA VOTES 2011

LSUC Bencher Campaign

OBA Bencher Candidates Inside Toronto

12

Riichiro Lee Akazaki

Howard Goldblatt

Laurie H. Pawlitza

Raj Anand

Julie Jai

Julian Porter

Steven D. Benmor

Kathleen Jeanne Kelly

A. Michael Rothe

Christopher D. Bredt

Wennie Lee

Linda Rothstein

Bill Burden

Jeffrey Lem

Mark J. Sandler

John E. Callaghan

Wendy Matheson

Paul B. Schabas

John A. Campion

William C. McDowell

Robert Shawyer

Mary Louise Dickson

Malcolm M. Mercer

Beth Symes

Kevin Doan

Graeme Mew

M. Philip Tunley

Julian Falconer

Janet E. Minor

Peter C. Wardle

Avvy Yao-Yao Go

Barbara Murchie

Tracy Wynne

April 2011 | Briefly Speaking • En Bref


OBA VOTES 2011

LSUC Bencher Campaign

www.oba.org

Outside Toronto Constance Backhouse

Carl E. Fleck

Dorette Pollard

Stephen Bale

Carol Hartman

Judith M. Potter

Graham M. Bennett

William C. V. Johnson

Nicholas John Pustina

Fred Bickford

Marvin Kurz

James A. Scarfone

Jack Braithwaite

Michael M. Lerner

Raj Sharda

Thomas G. Conway

Joan M. MacDonald

William J. Simpson

Paul Cooper

M. Virginia MacLean

Joseph J. Sullivan

Ross F. Earnshaw

Susan T. McGrath

Jerry B. Udell

Robert F. Evans

David S. McRobert

Robert Wadden

Peter J. Festeryga

Jacques Ménard

Briefly Speaking • En Bref | April 2011

13


eye on privacy

Privacy in the Technological Age An excerpt from Federal Commissioner Jennifer Stoddart’s address to the OBA upon receiving the OBA Karen Spector Memorial Award for Excellence in Privacy Law

Jennifer Stoddart

Introduction I’m particularly grateful to the OBA for selecting me as the 2010 winner—in spite of the fact that members of the Canadian bar and my office have been on opposite sides of the fence in a series of legal proceedings in recent years. I’d like to talk about a couple of those proceedings.

I’d like to speak about the fallout resulting from what the courts have said about solicitor-client privilege and access requests.

Those cases—which wound their way through the courts for years—also serve both to illustrate, and contribute to, my growing concern about the fact that the legislative process and traditional legal system are not keeping up with the pace of evolving privacy issues—particularly those resulting from new technologies. The incredible rate at which technologies have been developing—in the online context and elsewhere—continues to astonish me. I’ve been Privacy Commissioner for almost seven years. When I first took on this role, the concept of online social networking didn’t really exist. We also didn’t tweet, share via Flickr and YouTube or track one another on Foursquare and Facebook Places. And few of us had heard of cloud computing. Protecting privacy in this rapidly transforming landscape demands agile and creative responses. The reality is, however, that we have a situation where legis-

14

lative amendments wind their way through the Parliamentary process at a glacial pace in comparison to the rate at which the world is changing. A dispute over a point of law can take several years to resolve through the courts. I don’t think it’s realistic to anticipate dramatic change in how the wheels of the legal and Parliamentary systems move in the foreseeable future. Therefore, it is incumbent upon us—my Office, and you as members of the Bar—to think about how we can make existing laws work in the best interests of Canadians.

Solicitor-Client Privilege

It is striking how little litigation there has been under PIPEDA. The one case that has made it all the way to the Supreme Court of Canada involved, to my mind, something of a sleeper issue. Few could have predicted that the country’s highest court would have to weigh in on the issue of solicitorclient privilege and access to personal information. Most of you are no doubt familiar with the Supreme Court’s 2008 decision in the Blood Tribe case. The Court confirmed that the right of individuals to access their personal information in order to verify its accuracy is an important corollary to the protection of privacy.

However, the Court disagreed with our position on the question of who is legally able to independently verify organizations’ claims of privilege at first instance. April 2011 | Briefly Speaking • En Bref


eye on privacy The Court concluded that the statutory language of PIPEDA does not give the Commissioner the authority to compel an organization to produce documents over which a claim of solicitor-client privilege has been made, in order for me to review the document in the course of an investigation into an access to personal information complaint.

Rather, this role of verification should be reserved for the courts.

As a result of the decision, we amended our internal processes and stopped requesting the actual documents over which an organization claimed privilege.

Instead, we requested that organizations provide sufficient evidence in support of a claim of privilege, which could include affidavit evidence that would allow me to have some credible basis for finding this information was privileged.

Air Canada

This approach was put into question by a recent case—Air Canada—in the context of a complaint concerning a refusal of access to personal information contained in a number of documents prepared by various employees of Air Canada.

We asked Air Canada to set out its claim of solicitor-client privilege by way of affidavit but the airline refused. We deemed the complaint well-founded and filed an application in Federal Court. Ultimately, the Federal Court determined earlier this year that I lack the jurisdiction to rule on an assertion of privilege and therefore am not entitled to inspect documents over which privileged is claimed. Instead, it found that the Federal Court is the decision-maker in such cases.

We decided against filing an appeal of the Air Canada decision, largely in light of the Blood Tribe decision.

The Way Forward

As a result of these recent decisions, we’ve determined that, in cases where a respondent organization refuses access to personal information on the basis that such information is subject to solicitor-client privilege, and the matter cannot otherwise be disposed of, we will be referring disputed claims of solicitor-client privilege for independent assessment by the Federal Court by way of interim reference. However, there remain a number of interesting issues, including: • Will my Office—and ultimately taxpayers—be responsible for costs in the event that a claim of solicitor-client privilege is valid, although Parliament clearly did not envision such consequences in PIPEDA?

• What will the role of my Office be in any such reference, given that the Federal Court has been clear that the OPC has no role in assessing solicitor-client privilege? Briefly Speaking • En Bref | April 2011

• Considering that the average amount of time it takes for references to be considered before the Federal Court, how will I ensure that I respect my legal duty to prepare an investigation report within one year?

A Better Way?

In a recent paper, University of Ottawa’s Professor Adam Dodek argues that contemporary justification for solicitor-client privilege remains largely grounded in 19th Century legal assertions, which do not involve any contextual interpretation, balancing of competing interests or rights in determining privilege issues. As well, courts are unwilling to revisit the theoretical underpinnings for privilege. As such, he argues that the two dominant characteristics of judicial treatment of solicitor-client privilege in Canada are: heightened protection; and a lack of critical reflection about its purposes and function. Ultimately, Professor Dodek argues it is time for critical analysis of privilege, and that it should be recast in a rights-based approach anchored by dignity, autonomy and privacy—one directly linked to the right to counsel which protects such rights.

Most notably, Professor Dodek argues that privilege should no longer be extended to organizations—corporations, governmental bodies and other associations—on the grounds that such entities are not human and therefore have no claim to dignity, autonomy and privacy as human rights. As a privacy advocate, I find that argument extremely compelling and I hope that legal thought will evolve in that direction.

Consequences for the OPC

In the meantime, the court rulings on solicitor-client privilege have some practical consequences for my Office.

For us, it means that the moment an organization makes a claim of solicitor-client privilege, our investigation work comes to a stop and we will, in some cases, have to go to court. There’s a huge public cost here—going to court is expensive. There is a cost in terms of the impact on court time. The current situation also isn’t desirable for business—either in terms of the cost involved and the time it will take to resolve issues. My request to lawyers advising the organizations that my Office deals with, is to think of the big picture. As members of a profession that contributes to the development of Canadian law, you have a responsibility to think about where issues are taking us in a broader sense. Is the way a particular case is being argued going to put Canada on the appropriate legal path?

I would also urge to advise your clients responsibly; to ensure that your clients do not apply solicitor-client claims overly broadly. Ensure that any claims are real and serious.

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Responding to Rapid Change I’d also like to speak to the growing responsibility of individual members of the Bar in the broader context of the development of privacy law and regulation in an era of dramatic technological development. As I described at the outset, legal and Parliamentary systems are struggling to keep up with the pace of technological change.

This situation places a requirement on those of us working in privacy to consider how we can help to ensure that we continue to have effective privacy protections in place for Canadians. What I see happening already is that rule-making processes in the area of privacy are shifting to a more “on the ground” approach. We see that the role of “soft law” or informal rulemaking is growing in prominence—in Canada and beyond. Lawyers at global conferences have told me that soft law— essentially realistic guidance from regulators – is increasingly important. This is because few issues in privacy law ever go to litigation, which is seen as too long and too risky and often the wrong place to try to resolve highly complex IT issues. This is happening in other areas as well. In a number of countries, we see that administrative bodies mandated to address government integrity issues—auditors general, for example— are emerging as important players in the regulatory scheme. My own Office is increasingly developing guidance documents for organizations. In the last few years, we’ve issued guidance on covert surveillance; the collection of driver’s licence information by retailers; and cross-border processing of personal information.

Another trend is that data protection authorities and other regulators are increasingly involved in developing rules that flow from a continuing dialogue with technological innovators, with consumers and with legal scholars and specialists. For example, the U.S. Federal Trade Commission has held a series of consultations on privacy issues and the Europeans have also launched a dialogue on how to amend their Directive on data protection.

Canadian Consultations

Here in Canada, my office held public consultations this year (2010) on issues we feel pose a serious challenge to the privacy of consumers.

Our consultations focused on two areas—the privacy issues related to the online tracking, profiling and targeting of consumers by marketers and other businesses and cloud computing practices. As well, in 2009, we engaged two noted academics—Dean of Osgoode Hall Law School Lorne Sossin and France Houle, of the Université de Montréal—to examine the effectiveness of the ombuds model in protecting personal information in the private sector, particularly in light of changes in the technological, economic and legal context since PIPEDA was first enacted. 16

In their analysis, these authors suggest that the current ombuds model has had mixed success.

On the positive side, the authors take the view that my Office has succeeded in accomplishing important goals related to compliance by working with large industry sectors such as banking and insurance, building trust across the private sector, providing guidance on the interpretation and application of PIPEDA, responding to complaints, inquiries and concerns, raising awareness of PIPEDA and generally enhancing the profile of privacy issues. However, they are also of the view that the ombuds model may have been less effective in promoting compliance where small and medium sized businesses are concerned.

The professors have suggested as an option going forward, that my Office could acquire targeted and limited power to make orders, including the ability to impose penalties such as fines. They also propose explicit guideline-making power, to assist with the fair and transparent implementation of new order-making powers. My office is currently in the process of assessing the authors’ analysis, mapping it onto what we believe has been our experience under PIPEDA to date, and comparing it with our own views of the merits and effectiveness of the ombuds model. The authors’ analysis will undoubtedly make a significant contribution to the public discourse on future evolutions of PIPEDA.

PIPEDA Review

Both the report from Professors Sossin and Houle and our public consultations will help shape my Office’s input during the next mandated review of PIPEDA, which is expected to begin in 2011. The first five-year review began in 2006, however, the amendments put forward as a result of that work still have not been passed into law.

They are contained in two bills currently before the House of Commons. As part of anti-spam legislation, the government has proposed amendments providing my Office greater discretion to refuse or discontinue complaints and to permit us to share information with our domestic and international counterparts.* Other important privacy legislation is a bill to amend PIPEDA. One of the most important changes it offers is a requirement for organizations covered by PIPEDA to notify my Office and affected individuals following data breaches. Hopefully those two pieces of legislation will be passed into law in the relatively near future.

These are weighty issues, however, I do hope that this is the continuation of a dialogue about what we can do to encourage an effective privacy regime. Jennifer Stoddart, Federal Privacy Commissioner

April 2011 | Briefly Speaking • En Bref


Briefly Speaking • En Bref | April 2011

17


eye on privacy

“Wagging” Tongues Protecting Privacy in Criminal Disclosure Nancy E. Cooper

T

he typical Crown brief holds a plethora of private information: names, dates of birth, addresses, driver’s licence numbers, medical records, DNA reports and so on. Yet, unlike other government records, its access is not overseen by the laws that ordinarily protect our individual privacy. The Crown is the zealous guardian of information garnered in the course of a criminal investigation and prosecution. Its duty to protect this information extends to defence counsel who, in securing the Crown disclosure, must undertake not to use the information for purposes outside of defending the case. So can anyone else access this information and for what purpose?

The decision in D.P. v. Wagg (2004), 71 O.R. (3d) 229 (Ont. C.A.) continues to be the leading case governing third party access to criminal disclosure. The plaintiff alleged that she had been sexually assaulted by the defendant, Dr. Herbert Wagg. In the civil action for damages, she sought production of the Crown brief, specifically the statements given to police by the defendant. The statements had been excluded in the criminal trial, the court having ruled that they had been obtained in the breach of the Charter right to counsel. Ultimately, the charges against the doctor were stayed as a result of unreasonable delay. In pondering the collateral use of the Crown brief, the appellate court offered compelling rationale for an implied undertaking rule with respect to criminal disclosure and the use of same by the defence (at para. 46):

“The disclosure is compulsory and required because of the public interest in ensuring that the accused obtains a fair trial of the criminal charges. However, as a result of the criminal disclosure process, individuals, including innocent third parties, may find that highly personal information is made available to the accused. These individuals must, as explained in Taylor, accept this intrusion in the interests of achieving a proper result in the criminal

18

case, but the law should provide them with some reasonable protection against use of the information for entirely different purposes.”

In the end, the court endorsed the screening process crafted by the divisional court below it. If a party in a civil proceeding has possession of a Crown brief, that party must disclose this in its Affidavit of Documents. However, it cannot produce them until the Attorney General either consents or a court order is obtained. If production of the disclosure is sought by the opposing party, notice must be given to the accused, to the Attorney General and the police service involved in the original prosecution. It then falls to the Attorney General to review the documents with a consideration for the public interest. Absent the Crown’s consent, the party seeking production must apply to the court. In a civil action, this “Wagg motion” proceeds under rule 30.10 of the Rules of Civil Procedure. The test has two parts: (1) the document must be relevant and (2) it would be unfair to require the moving party to proceed to trial without having discovery of the document. Wagg requires the court to consider whether the Crown material is subject to privilege or public interest immunity or if there is a “prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information” (2002 CanLII 23611 (ON S.C.D.C at para. 51).

After the Wagg decision, the Crown saw an immediate and steady increase in the number of requests by third parties for the production of criminal disclosure (according to Crystal O’Donnell and David Marriott, in “Collateral use of Crown Brief Disclosure – A Study Paper, presented at the Uniform Law Conference of Canada at Edmonton, August 20-24, 2006). Its use is readily apparent in tort actions where damages resulted from unlawful conduct such as in cases of assault and battery, sexual assault or personal injury sustained in a motor vehicle April 2011 | Briefly Speaking • En Bref


eye on privacy accident, as well as in actions against the Crown or police. Family law litigants commonly seek production of Crown briefs in prosecutions of domestic assault.

In The College of Physicians and Surgeons of Ontario et al. v. H.M. Metcalf, in his capacity as Chief of the Peel Regional Police, [2009 CanLII 55315 (ON S.C.D.C.)], the College sought production of the Crown brief in criminal proceedings against a psychiatrist for use in a disciplinary investigation. The doctor faced charges of possession of property obtained by crime, possession of child pornography, accessing child pornography and breach of recognizance. The investigator appointed by the College issued a summons seeking access to police notes, witness statements, search warrant information, and access to the images seized. On legal advice, Chief Metcalf refused to provide the information.

The divisional court agreed with the Crown that the public interest principles identified in Wagg applied to the summons issued by the College, although the screening process in Wagg would not necessarily apply in this case as this was not a civil proceeding. It concluded that the police chief had a lawful excuse for failing to comply with the summons. Child welfare authorities often seek police records, criminal records from the Canadian Police Information Centre (CPIC’s), and to a lesser extent, access to Crown disclosure when making a case against the parents for the wardship of their children. In Children’s Aid Society of Algoma v. D.P. et al., [2006 CanLII 330 (ONCJ)] the Crown sought to restrict the access of CAS authorities to reports and other documents in its possession following a criminal investigation. Justice Keast determined that Wagg did not apply to an application under section 74 of the Child and Family Services Act for the production of non-party records. He espoused the free-flow of information from the Crown to the Society. In the face of the protection of children, privacy interests of third parties did not weigh in. The Crown appealed. Madam Justice Pardu of the Superior Court did not agree that privacy interests were irrelevant to production motions under the CFSA [2007 CanLII 39363 (ON S.C.)] However she found that the conditions drafted by the judge in the first instance were adequate to effectively address Wagg concerns.

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It is surprising that the expanding use of Internet technology has not resulted in a more stringent test for applicants seeking access to disclosure in criminal cases. Given the highly sensitive nature of such disclosure, the greater risk posed by the Internet for the public dissemination of private information gives one pause.

Nancy E. Cooper is a sole practitioner with a criminal law practice in Timmins.

Briefly Speaking • En Bref | April 2011

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eye on privacy

Protecting Privacy as our Electrical Grid Gets Smarter Ann Cavoukian, Information and Privacy Commissioner, Ontario Throughout North America, governments are moving—some at a faster pace, some more slowly—to revolutionize the electricity sector. Ontario’s government, for example, committed to installing a “Smart Meter”—one which allows electrical consumption to be measured in close to real time—in all Ontario homes and small businesses by the end of 2010. This process has been substantially completed. As a next phase in Ontario’s Smart Grid development, Hydro One is introducing an advanced distribution system. Smart Grids and Smart Meters have the potential to reduce brownouts and blackouts, make it quicker to detect the source of power outages and make repairs, conserve energy, and reduce consumers’ energy bills. Part of how they will achieve this is by bringing together electrical supply and telecommunications technologies. Granular information about electricity usage in the home will help give consumers more control over their electricity usage, and enable utilities to manage demand requirements. It may also, however, lead to unprecedented invasions of consumer privacy.

Privacy concerns arise when there is a possibility of discovering personal information such as the personal habits, behaviours and lifestyles of individuals inside dwellings, based on detailed electricity usage information. There are also concerns that this information may be used for purposes other than providing electricity, such as marketing, profiling, surveillance, stalking or sabotage. At present, smart meters can disclose how much electricity is being used in a particular building or building unit at any given time. In future, they may be able to pinpoint which specific appliances and devices are in use, and in which room. 20

To prevent such privacy invasions requires action on two fronts. First, we need to ensure that our privacy laws apply fully to the Smart Grid. Second, we need to “bake” privacy into the design of the new technologies and business systems as they are developed, not as an after-the-fact add-on – a process I call “Privacy by Design.” In Ontario, publicly-owned electrical utilities are generally subject to two Ontario privacy laws that I oversee, the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act. Private operators are subject to a federal privacy law, the Personal Information Protection and Electronic Documents Act.

Ontario has passed amendments to the Electricity Act, 1998 and the Ontario Energy Board Act, 1998 to facilitate Smart Grid development. This legislation sets out a framework for taking privacy into account in the design and implementation of Smart Grid systems. In the U.S., there has been a flurry of legislative activity relating to privacy and Smart Grids in the past year. Colorado passed a Smart Grid Act creating a task force to recommend measures to encourage the implementation of Smart Grid technology, with specific instructions to address consumer protection and privacy. The federal Electric Consumer Right to Know Act (e-Know), which was introduced three times but died each time at the end of the legislative session, would have required electricity providers to give customers free, timely, and secure access to any data about their electricity usage that the provider collects. April 2011 | Briefly Speaking • En Bref


eye on privacy Perhaps the most important U.S. legislative initiative, however, is California’s amendments to its Public Utilities Act passed in September, 2010. Bill S.1476, as it was called, prohibits an electrical corporation or gas corporation from disclosing to any third party a customer’s consumption data, except as specified in a list of exceptions. It requires utilities to protect unencrypted consumption data from unauthorized access or use. A utility may not sell consumption data or other personally identifiable information. A utility that uses advanced metering infrastructure that allows a customer to access his or her consumption data may not require the customer to give access to third parties. Moreover, if the utility contracts with a third party to provide the Smart Meter technology or system, and the provider uses this consumption data for a “secondary commercial purpose,” this must be disclosed. The California Public Utilities Commission (CPUC) has been holding hearings on the creation of rules regarding third party access to customers’ Smart Grid information. Privacy is one of the key issues the CPUC has identified for rule-making. The Ontario government, Hydro One, and Toronto Hydro, have been employing Privacy by Design (PbD) principles in developing a Smart Grid system for Ontario. Privacy by Design is a concept I developed in the 90’s to address the ever-growing and systemic effects of information and communication technologies, and of largescale networked data systems. It advances the view that the future of privacy cannot be assured solely by compliance with regulatory frameworks but must, rather, become an organization’s default mode of operation.

In November of 2010, the Ontario Cabinet essentially mandated a PbD approach to development of Ontario’s Smart Grid, issuing a directive to the Ontario Energy Board to ensure that electricity generators and transmitters integrate privacy requirements into Smart Grid planning and design from an early stage, including the completion of privacy impact assessments.

Hydro One and Toronto Hydro have been working closely with my office, setting new standards for how electrical companies should build privacy protection into the Smart Grid. The work they are doing to build security into their systems from the ground up, beginning in the early design and procurement stages, is a model for other companies around the world that are working to build consumer confidence in the Smart Grid by, among other things, providing meaningful assurances that personal information will be protected. While the Smart Grid has the potential to deliver substantial value, it represents a significant endeavour that will require significant privacy risk mitigation measures. Utilities have an interest in ensuring that consumer support for and adoption of Smart Grid technologies is not impeded by fears relating to privacy. Privacy by Design offers a way forward based on a proactive, positive-sum model that both protects privacy and enables the many potential benefits of the Smart Grid to be realized. For more information visit www.ipc.on.ca Ann Cavoukian, Ph.D., Information and Privacy Commissioner, Ontario

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eye on privacy

Inbox Etiquette Think Before You Click Cheryl Crocker

E

mail has become the vehicle de jour for ‘malware’; malicious software designed to infiltrate your computer without your consent.

Unsuspecting victims are only a click away from a plethora of spyware, viruses, and worms which can destroy data, track activities, and allow access to confidential online accounts. To avoid this nastiness, the rule of thumb is: think before you click. Here are a few red herrings to watch for in your inbox:

Trust Me, You Didn’t Win The Lottery (Especially If You Didn’t Buy A Ticket!)

Legitimate banking institutions and lotteries will not notify you (of wonderful, but fictitious rewards) by email. Sorry, there’s no such thing as easy money.

Once Upon A Time…

Beware of tall tales. From Nigerian banking scams to long lost rich aunties, deceitful stories are abundant. If it sounds too good to be true… well, you know the rest. And of course, do not deposit money to unknown businesses or individuals. Knock, Knock—Who’s There?

Don’t open attachments from unknown senders. When in doubt, delete!

Beware of Doppelgangers

Email scams will mimic legitimate websites like Facebook, eBay, banking and credit card institutions. Take a closer look 22

at the sender’s email address or the website URL. If the URL contains lots of extra digits, or the email address is cre8tively spelt, click no further.

Spell-Check

If the email message is riddled with spelling and grammatical errors, it’s probably not safe. You won’t need a dictionary to figure it out.

Guess Who?

Emails with nonspecific greetings like ‘Dear Card Holder’ could be fraudulent and should be avoided.

Scared Silly

Watch out for messages which imply you’re in danger or insist you will incur a penalty for not responding immediately. These messages create a sense of urgency which may prompt you to react without thinking.

Even the most vigilant techies can fall victim to malware. Help yourself by keeping your email software up to date, running regular anti-virus scans, and backing-up critical files. But first and foremost, think before you click! It could save you undue heartache down the line.

April 2011 | Briefly Speaking • En Bref


Pet Peeves, Giving Back and the Evolution of Expertise Donald Carr J. Andrew Sprague

2011 is Donald Carr’s 60th continuous year of practising law. He spent 42 of his 60 years of practice with Goodman and Carr LLP, where he spent 25 years (1965-1990) as the firm’s chairman. Donald Carr, O.Ont., Q.C., J.D., L.H.D was called to the Ontario Bar in September, 1951. Fifty-five years later, in 2006, he was appointed to the Order of Ontario for serving as counsel and advisor to a number of charities and not-for-profit organizations, as well as for his pro bono work.

The Early Years in Practice

Carr commenced his career as a civil litigator with his late uncle, Samuel Cohen, Q.C. When his uncle passed away, the focus of Carr’s practice shifted from litigation to private company work for entrepreneurial and corporate clients. Later, Carr was joined by three other lawyers, and the law firm of Cohen, Carr, Cass and Fine was formed. In 1965, the firm merged with Goodman, Cooper, Cohen and Farano, and became Goodman and Carr.

Goodman and Carr LLP

“My years of practice with Goodman and Carr were very gratifying for me”, he says. From 1965 to the mid-2000s, the firm=fondest memories is practising with the late Wolfe Goodman: “I have met many brilliant lawyers, but none has been as outstanding, in so many fields of law, as Wolfe”.

When Goodman and Carr ceased operations in the spring of 2007, it was reported by the media to be the largest law firm in Canada to ever close its doors. The closure of the firm was traumatic. Despite popularly held views, Carr believes “the end of the firm was not inevitable and was substantially unrelated to fiscal matters. The decline of the firm was a result of an inability by some of the firm’s lawyers to remain focussed on the firm’s mission statement”. When asked about Carr, Gordon Cooper Q.C., who is a longtime friend, one of Goodman and Carr’s co-founders, and a 46 Briefly Speaking • En Bref | April 2011

year colleague of Carr, says, “During our extensive relationship, Don has always been someone who I could confidently turn to for counsel and advice”. Cooper also notes, “In my view, he has always distinguished himself as an outstanding lawyer. He combines a number of wonderful attributes: his love for the law, his extensive legal knowledge, his incisive mind, his common sense approach to solving problems, and his empathy for his clients’ concerns. Beyond that, Don has always displayed a strong communal obligation and love of family”.

Expanding Expertise

Carr has enjoyed the way his practice has evolved over the years. It has encompassed several areas. After his initial focus on civil litigation, he moved on to private and public company law and commercial leasing. Due to the entrepreneurial nature of many of his clients, he also developed expertise in the area of estates and trusts, which, along with charities law, now consumes the greatest amount of his time as associate counsel in the Toronto office of Miller Thomson LLP.

When asked about changes in estate planning and estate administration over his career, Carr notes that the area has become more complex. “One of the challenges facing estate planning and administration is the growing wealth of many individuals, combined with all-pervasive tax issues, which are complicated substantially by a more interconnected world where individuals receive income from, and have assets in, multiple jurisdictions”.

He recently dealt with a matter that involved a US citizen, domiciled in Ontario, currently working and living in the United Kingdom, but who also spends a great deal of time in Russia and has interests there. Carr believes that this type of scenario will continue to occur more frequently. In order to effectively assist these individuals with their estate planning needs, Carr notes, “more team work will be required between legal and non-legal professionals, such as accountants and investment advisors, in multiple jurisdictions”. 23


Community Service Throughout his career, Carr has spent a great deal of time and effort on charitable and pro bono activities.

He is currently the secretary, honorary counsel and a member of the National Executive of the United Israel Appeal of Canada Inc., and is the president of the board of directors of the Canadian Jewish News, which is an independent, non-profit organization. Previously, Carr held a number of community-based positions, including president of the Community Hebrew Academy of Toronto (CHAT), president of the United Jewish Welfare Fund of Toronto (Toronto Federation), and board member of the United Way of Metropolitan Toronto.

In Carr’s opinion, “We, as lawyers, get substantial advantages from our communities. Having nothing to do with ‘business development’, it is terribly important for lawyers, who are committed and successful, to give back to the community what they get from the community”.

Concerns about the Legal Profession

Carr shares some of his “pet peeves” about the legal profession: First, he regards the English language as the critical tool of the profession, yet “many lawyers are abysmally ignorant

about the proper use of English ... (both then and now), there has been terrible misuse of the language”. Secondly, Carr is concerned that lawyers may be placing themselves in conflict of interest situations, both real and perceived, when there is not a clear distinction between a lawyer practising law and a lawyer going into ventures with clients. “Over the years, the distinction has become more than blurred”, notes Carr. He believes, “conflicts of interest in this situation are difficult to manage. Entering into ventures with clients should be eschewed by lawyers; notwithstanding the creation of mechanisms, on the surface, to address these conflicts”.

Concluding Thoughts

When asked to share his fondest memory from his 60 years of practice, Carr had difficulty selecting one. He is thankful for his good fortune to have: (a) practised so long; (b) been associated with some very wonderful people; and (c) practised in so many areas. Sixty years of practice is a significant milestone. Congratulations! J. Andrew Sprague is a lawyer with Miller Thomson LLP. He is also a member of the Editorial Board of Briefly Speaking, and is the Public Affairs Liaison for the Information Technology and Electronic Commerce Section of the Ontario Bar Association.

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April 2011 | Briefly Speaking • En Bref


Briefly Speaking • En Bref | April 2011

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eye on privacy

You’ve Got Mail Snooping Emails, Privacy Law, and Admissibility of Evidence Katherine Cooligan With the increasing use of electronic mail, and especially the evolution of WiFi and smartphone technology, the written word has overtaken the spoken word. Today, email communication documents much of our everyday communications, both personally and professionally. As Justice MacKenzie of the British Columbia Supreme Court observed in R. v. Giles (2007), 77 W.C.B. (2d) 469, “the explosion of e-mail and other text-based modes of instantaneous communication has meant that much of our communication that was once exclusively verbal is now by electronic text.” It is also a convenient vehicle through which documents and pictures, as attachments, are routinely trafficked. It has not been lost on either lawyers or their clients that email can be a rich source of potential evidence for use in legal proceedings. In the context of Family Law, emails that a spouse has “snooped” or “stolen” (i.e., accessed without consent) from their spouse’s personal, password-protected account can be a tempting source of evidence that might otherwise remain unavailable. This is especially true in the context of spousal or child support proceedings, where evidence of hidden financial transactions might be readily obtained, and thereby have a significant impact on the outcome and costs of a proceeding. The question is whether such evidence has been obtained illegally or is otherwise inadmissible, given its source.

Perhaps surprisingly, it is not clearly unlawful for an individual to secretly access and copy personal information from their spouse’s email account. Provided that information is not used for illegal activity (i.e., defamation or fraud), there appears to be little, if any, legal fallout for the “snooping spouse” who accesses the email without consent. There is neither a statutory prohibition against the act itself, nor a clear recourse in common law for the spouse who owns the email account. The analysis does not end there, however, as what a spouse can do with the information is not unfettered. A court may exclude evidence derived from “stolen” emails on basic principles of evidence law (i.e., it has been improperly obtained, and the probative value does not outweigh the prejudicial effect). In addition, 26

even the attempt to adduce such evidence may attract special costs as a means of penalizing and discouraging the unethical conduct involved in acquiring it.

In practice, the Criminal Code seems to offer little assistance. Sections 183 and 184, which criminalize the “interception” of private communications, seem to be applied mainly to regulate wiretapping and equivalent investigative techniques used by the police. Further, they do not appear to encompass the act of acquiring emails that have already been received and stored by the intended recipient (see e.g., R. v. Giles, supra, at paras. 34-46). Section 342.1 of the Criminal Code makes it an indictable offence to obtain “without colour of right … any computer service” (s. 342.1(1)), including the retrieval of data (s. 342.1(2)). Mr. Crinu Iliescu, who “surreptitiously accessed” his previous employer’s email and downloaded evidence to support his wrongful dismissal claim, was charged under this section in April 2003 by the Toronto police (see Iliescu v. Voicegenie Technologies Inc. (2009), 71 C.C.E.L. (3d) 123 at paras. 17, 18). Although he was initially convicted at trial, the conviction was subsequently set aside, and the Crown ultimately withdrew the charges.

Further, the legislation in Canada that provides individuals with personal information privacy rights affords no protection against other individuals. The Privacy Act, R.S.C. 1985, c. P-21, for example, applies exclusively to government departments and agencies, and the Personal Information and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”) regulates only private entities in the course of their commercial activities. British Columbia, Alberta, and Quebec have each enacted statutes substantially similar to PIPEDA for application in matters of provincial jurisdiction. None of these statutes seem to be applicable to circumstances in which one individual collects and uses the personal information of another for personal or domestic purposes (including legal proceedings) (see e.g., State Farm Mutual Automobile Insurance Co. v. Canada (Privacy Commissioner) (2010), 7 Admin L.R. (5th) 77 (F.C.) at paras. 10506, 109-112; see also Ferenczy v. MCI Medical Clinics (2005), 70 O.R. (3d) 277 (Ont. Sup. Ct. J.)).

April 2011 | Briefly Speaking • En Bref


In Ontario, there appears to be no independent common law remedy for an invasion of privacy. In Euteneier v. Lee (2005), 77 O.R. (3d) 621, the Ontario Court of Appeal held that there is “no ‘free-standing’ right to dignity or privacy … at common law” (para. 63). Citing this decision with approval in Dobreff v. Davenport (2008), 2008 CarswellOnt 8244 (Ont. Sup. Ct. J.) (aff’d (2009), 2009 CarswellOnt 15 (Ont. C.A.)), Justice Ross held that “[t]he claim of invasion of privacy is not a recognized cause of action” (para. 8) and struck the plaintiff’s claim accordingly.

What, then, happens to the surreptitiously acquired email evidence? In Eizenshtein v. Eizenschtein (2008), 62 R.F.L. (6th) 182 (Ont. Sup. Ct. J.), the wife in acrimonious divorce proceedings brought a motion to admit as evidence emails between her husband and his lawyer. These emails, which contained discussions about the husband’s legal strategy, were discovered by his girlfriend, who enjoyed full use of his personal computer. When the husband and his girlfriend broke up, she forwarded these emails to his wife, who subsequently filed them with the Court. Justice R.A. Wildman, who ordered the removal of the emails from the record on the basis of solicitor-client privilege (para. 12), recognized that the evidence had been improperly obtained because the husband had neither intended nor consented to its disclosure (paras. 37-40), but made no comment about the legality of this conduct. Although broad policy considerations were considered in obiter (paras. 41-42), they were limited only to emails falling within the ambit of solicitor-client privilege. The question of whether unprivileged emails obtained in a similar manner are also inadmissible was not broached.

acquired in so unethical a manner. In Antle v. NCC Financial Corp., [2009] B.C.J. No. 718 (B.C. S.C.) (para. 60), for example, Justice Crawford awarded special costs against the defendant employer, holding that it had “acted reprehensibly by intercepting … private emails” (para. 60), and that “[r]eprehensible conduct, or conduct from which the court seeks to dissociate itself, need not be formally illegal, either civilly or criminally” (para. 61). What is also uncertain is whether the law should recognize different standards for snooping in emails that are relatively available to family members on household computers versus taking deliberate, invasive steps to “break into” a protected account. This issue is currently being tried in Michigan for the first time. Leon Walker, an IT technician, faces criminal charges under U.S. anti-hacking legislation for accessing his spouse’s email account without her consent. Walker used no special invasive techniques; he merely used the password his wife had written down in her address book. Anyone could have done what he did. And in Ontario, where it seems that many people have and many people will, greater clarity in the law would be helpful. Katherine Cooligan is a partner and the Regional Manager of the Litigation Department in the Ottawa office of Borden Ladner Gervais LLP. She is a certified specialist in Family Law.

Katherine acknowledges the assistance of Daniel Hohnstein, articling student.

Although the law in Canada does not appear to be clear on whether the act of surreptitiously accessing a spouse’s email account is itself illegal, courts might hesitate to admit evidence

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Briefly Speaking • En Bref | April 2011

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Just For Laughs

From Russia With Love Cloak and Dagger Litigation Marcel Strigberger

We all have concerns about information security, privacy issues and the protection of communications with our clients. Our vigilance is unprecedented. Recently, however, I had an experience at my office that added a new dimension to the expression, “even the walls have ears.” I noticed that some of the documents I had left on my desk overnight were being amended, as if there was some ghostwriter at work. I became suspicious when one morning I found a draft Simplified Rules Statement of Claim seeking $500,000.00 for damages, with a stickie note attached reading, “$100,000.00 is the max under the Simplified Rules. You know that. Rule 76.”

I suspected my associate Henry. Then again Henry was an affluent corporate/real estate lawyer. Nonetheless I queried him, interrupting his chat with his financial adviser. His innocence was instantly obvious when he responded, “What’s a Statement of Claim?” However, he did offer to undertake to readjust. Days later, I diligently prepared an affidavit on behalf of a husband client who was defending a vigourous support claim, arguing that my poor client could not afford spousal support. The next morning, on my desk I saw a memo clipped to the draft affidavit, reading, “If he is that hard on his luck, why did he just buy a new Lexis? Haven’t you admonished him about his duty to make full disclosure?”

“J’accuse”. Once again Henry seemed oblivious to the situation. He claimed that he was not even in the office yesterday, having driven his Maserati north to a Muskoka golf course. He added, “And what’s so special about a Lexis?”

A short while later the phantom struck again. I was defending a contract claim and my Statement of Defence was all set to go. Or was it? I saw penned in red ink the words, “The defendant pleads and relies on the provisions of the Statute of Frauds, RSO. 1990 c. S 19. ” 28

That was it. It could not have been Henry as he was up at his chalet in Mont Tremblant.

I was stumped. Where was the answer? I was desperate; I considered calling Dr Phil.

Then one evening I discovered the culprit. I was sitting in our boardroom researching when in came the cleaning lady and she started dusting the books on the shelf. She somewhat resembled that villain, Rosa Klebb, in the James Bond movie, From Russia with Love.

Rosa Klebb was that Russian henchlady who wore shoes equipped with poison tipped spikes, which she would protrude in order to kick and liquidate unsuspecting victims. After about 10 minutes, out of the corner of my eye I caught her removing Salmond on Torts and putting it on her trolley.

Ah ha! I thought about how to confront her. Firstly, I looked down at her shoes. I don’t take chances.

I decided to follow her. Klebb went out and into the stairwell, up a bit, and through a small door I had not noticed before, between floors. April 2011 | Briefly Speaking • En Bref


Just For Laughs The door reminded me of that small door Alice faced after she fell down the hole. I almost expected to find a large mushroom on the floor with a tag reading, “Eat me”. I crawled through the portal and found myself in a dimly lit and musty corridor. The place looked like a cross between the Stratford courthouse and the Catacombs of Rome.

She then entered a room with a sign on the door reading, “Association of Cleaning Ladies, Civil Litigation Branch”. I peeked through and observed one of the ladies lecturing to a group of about 25 others. In the midst of her lecture, she suddenly started jumping on the table, shouting and pulling her hair. She must have been discussing preparation of an Affidavit of Documents. I returned to my office and pondered the matter further. Then one day it happened: an assessment of costs following a successful trial. The Justice asked me, “Is any of this time for preparation, law clerk or student time?”

Briefly Speaking • En Bref | April 2011

I hesitated, “No Your Honour. No law clerk or student time.” “I see. All lawyer time.”

I hid my head behind my folder and muttered, “Sir, there was some cleaning lady time”. “Cleaning lady time, counsel?” “Yes sir”.

“I see. And how much of it was cleaning lady time?

I responded with hesitation, “She spent a few hours reviewing and correcting documents. She also tossed out 25 documents, or so. “Very good counsel. I’ll allow $22.00 for each document corrected or tossed out.”

I was astounded. How did the judge know about these mystery paralegals? I wondered whether they also inhabited some yet undiscovered chambers of Osgoode Hall and whether this, along with their deluxe wine cellar, is one of the Benchers’ best-kept secrets. Marcel Strigberger is a humourist trapped inside the body of a civil litigation lawyer – see www.legalhumour.com

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“Unbundle” Me! Amendments Proposed by LSUC to the Rules of Professional Conduct John O’Sullivan

On October 8th, 2010 the Law Society of Upper Canada (LSUC) wrote to the OBA asking for input on certain changes to the Rules of Professional Conduct (RPC) being proposed by the LSUC, to address the issue of limited scope retainers. Limited scope retainers are agreements between a lawyer and client, under which the lawyer provides services for part, but not all, of a client’s legal matter. The proposed changes include: the requirement for candid advice as to the nature, extent and scope of the services being provided by the lawyer; the requirement to provide a written copy of the agreement between lawyer and client; and rules concerning a lawyer’s communications with a person who is receiving limited legal service representation.

Two other amendments­—a mechanism for deeming withdrawal of representation by a lawyer, and a requirement of disclosure to the tribunal and opposing counsel of the scope of a limited scope retainer—were included for comment, but are not being considered for adoption at present. The OBA prepared written submissions on the proposed changes which were submitted on January 20th, 2011. The full text of these submissions is available on the OBA website. The matter will be reported to Convocation later this year.

The OBA’s Position

The OBA’s position, formulated by members of more than a dozen practice area sections, is that as limited-scope retainers are a long-standing reality in the corporate context and an emerging reality in the litigation, administrative and family law contexts, it is appropriate for the RPC and Commentaries to address the issues that limited scope retainers give rise to. First and foremost, the RPC changes and limited-scope services generally, should, promote increased access to justice. In particular:

(a) The recognition of limited-scope services in the RPC should not be seen as an alternative to continued efforts to provide 30

financial assistance for vulnerable clients and to make the justice system more affordable;

(b) Vulnerable clients must be protected by a requirement that the client is given a clear explanation of the limits on the service that will be provided. In addition, services must not be limited inappropriately such that there is little or no value to the service provided;

(c) Changes to the RPC must not add unnecessarily to the time and expense of a matter or adversely impact services. For example, the proposed requirement for a written agreement when a lawyer renders limited-scope advice, would render the provision of duty counsel or legal clinic services virtually impossible; (d) In the litigation, administrative and family law contexts, changes to the RPC alone are not sufficient. Corresponding changes to the rules of practice (both in courts and tribunals) and changes to the law of negligence are also necessary; (e) While guidance from the RPC is helpful, the lawyer’s professionalism must ultimately be relied on for determining what advice is appropriate concerning limited service retainers. It must be clear there is no retreat from the rule that a client is entitled to the undivided loyalty of the lawyer. (f) Education undertaken by LawPro, the Law Society and others would assist the profession in complying with its obligations when giving limited-scope advice.

Future implications for the profession

If the proposed amendments are adopted in the form recommended by the OBA, lawyers will have helpful formal guidance from the LSUC on the practical issues that limited service retainers give rise to. This guidance will inform the standard of care expected of lawyers. And it will make life easier for Ontario’s lawyers. John O’Sullivan co-chaired, along with Morris Chochla, the OBA’s Limited Scope Legal Services Working Group. He is a partner with Weir Foulds LLP in Toronto.

April 2011 | Briefly Speaking • En Bref


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Naming and Shaming in the Family Court Fareen Jamal

“ Courts unnecessarily expose the private lives of family litigants. In most cases, a litigant cannot shield their identity from the public due to the longstanding principle of ‘openness’ in our court system. These public revelations can sometimes lead to embarrassment or worse. In B.(A.) v. Stubbs, [1999], Justice Cummings described this as “an unavoidable consequence of an open justice system.” Privacy in family law cases should be secured by limiting the disclosure of the identity of the litigants (and their families) and using initials and pseudonyms as a universal standard. The record should reveal enough about the party to allow an adequate appraisal of the proceedings while limiting the disclosure of the identity of the litigants. Anonymity does not obstruct the public’s view of the litigated issues and court decisions would not lose their precedential value. Evolutuion of Marriage and Liberalization of Divorce

Throughout history, marriage and morality have been intertwined. The traditional family and marriage has been redefined with, amongst other things, an increase in unmarried cohabitants, a decline of gender roles within marriage and the recognition of same sex marriage. The liberalization of divorce laws has signaled a normalization of divorce.

Historically, one of the unstated objectives of the openness of family court was related to discouraging divorce, then considered a social ‘bad’, by shaming those individuals that committed a marital offence (typically defined in sexual terms: adultery, incest, homosexuality, bestiality, and refusal to consummate). 32

With the abolishment of the tradition of labeling one party “innocent” and the other “guilty”, requiring parties to identify themselves as a means of moral condemnation is no longer appropriate. Naming as a form of shaming is a vestige of the faultera and should be eliminated. Family Litigiation is Unique: Identity Should Be Shielded

Sealing any information in court files is contrary to the Canadian open court system. Family court cases, however, are unique. Courts demand a significant level of personal detail from family litigants, such as parties’ dates of birth, home addresses, credit card numbers, bank account numbers, and children’s access schedules.

Disclosure seems particularly important in criminal trials, where the right to a fair trial and the desire to see justice done are significant factors. Family court differs significantly from criminal courts, as: (a) individuals are no longer accused of a crime in matrimonial litigation; (b) life is not typically at risk in family litigation;

April 2011 | Briefly Speaking • En Bref


(c) imprisonment is not in the family court’s remedial arsenal; and

(d) other than the use of the public courts (and if family litigants are welfare recipients following a divorce), expenditure of public funds is not at issue. An open court is philosophically justifiable on the grounds that by committing a criminal offence, an offender has no reasonable expectation of privacy in a court action. Similarly, in a civil action, individuals choosing to be embroiled in litigation waive their right to privacy.

Pleadings reflect a party’s own particular view of its position and may reveal irrelevant or prejudicial information. Family law litigants feel vulnerable and violated when intimate details of their lives are exposed. This may be further exacerbated if the individual does not want the separation or termination of the marriage. The allegations may include personal accounts, drafted by lawyers in language that emphasizes intimate facts to bolster the claims of their clients (and sometimes as gratifying private spite or promoting public scandal). Court documents lend an air of credibility to accusations, whether or not they possess any credence. The Risk of Identity Theft

According to Melissa F. Brown, author of Family Court Files: A Treasure Trove for Identity Thieves?, there exists a very real potential for identity theft from family court files. These files contain a treasure trove of information for an identity thief. This information is publicly accessible to any party by attending the records department at any court house.

The mandatory Form 13 Financial Statement in Ontario requires parties to swear under oath that the statement includes their income, home address, employer’s name, employer’s address, living expenses, and names of and amounts owed to creditors. The statement must include an accounting of their assets and liabilities, including the assets’ fair market value. The Financial Statement is “essentially a mandatory welcome mat to any thief interested in a gold mine of information in the family court clerk’s file.”

“Naming as a form of shaming is a vestige of the fault-era and should be eliminated.”

Impact on Children

Releasing information about a parents’ actions and a child’s life circumstances, particularly if the case contains devastating allegations of abuse, could further traumatize the child and invade their current and future right to privacy. Such harm would occur through no fault of their own.

Cases of adoption, child protection cases and juvenile delinquents have been traditionally closed to the public. Legislation in the case of juvenile delinquents reflects the policy that these children should not be stigmatized throughout their lifetime by a public record of their acts.

In sensitive custody issues, balancing the special interest of the children involved in the family court matter would favour anonymity as a tool for safeguarding the children from further harm.

“Court documents lend an air of credibility to accusations, whether or not they possess any credence.” With more than one-third of those who enter into a formal or legal first marriage divorcing before their 30th wedding anniversary (and the probability of divorce somewhat higher for a remarriage), and with an unknown number of unmarried cohabiting litigants also turning to the courts upon the dissolution of their unions, a significant proportion of the population can expect to have their private information publicized by family court proceedings.

Whether the open family court serves as a function of “shaming” those individuals that choose to divorce, or whether family law matters have simply been unthinkingly lumped with other areas of litigation, continuing to have the family court’s records public is increasingly inconsistent with the present conception of divorce and the emphasis on the best interests of the children.

Fareen Jamal is an associate lawyer at Bales Beall LLP where she practises in the areas of matrimonial, estate and civil litigation.

Legislation is necessary to restrict access to information in family court files, particularly personally identifying information, information relating to minor children, psychological evaluations, financial information of a personal nature and information that could facilitate the misuse of a party’s identity or of a party’s personal information. Briefly Speaking • En Bref | April 2011

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Legal Aid ontario

Improving the Legal Aid System

A

s part of an organizational strategy to modernize all aspects of the legal aid system, Legal Aid Ontario (LAO) has implemented a number of new programs that expand client services, reduce administration costs, and support justice sector reforms.

Client Services Toll-free Services

Legal Aid Ontario’s toll-free line provides valuable legal assistance and information to 1,200 low-income Ontarians a day —more than 6,000 calls per week. Demand for phone based services continues to grow. In January 2011, LAO call centre representatives responded to more than 25,000 inquires­—an increase of more than 200 per cent over January 2010. Additionally, call centre wait times have improved with most clients waiting less than a minute to speak to a legal aid representative. This represents a 80 percent decrease in wait time compared to the same period last year. More Courthouse Locations

The number of legal aid in-person service locations has doubled in the past year. Clients can access a variety of legal services including referrals, information and legal aid applications at one of more than 51 legal aid courthouse offices across the province. Having offices in the courts allows clients to apply for legal aid or get a referral on the same day they are scheduled to be in court. The number of clients who apply for a certificate and receive a same-day decision has also risen to 80 percent compared to 66 percent to last year. Improved same-day decision rates allow clients to move ahead with their legal matter quicker.

New Simplified Financial Eligibility Test for Clients

LAO has simplified its financial eligibility for legal aid services by making the test easier for clients to understand and reducing the documentation required when applying for a certificate. The new income based test allows clients to find out almost immediately if they qualify for a legal aid certificate. The new test provides flexibility for vulnerable clients, such as victims of domestic abuse and those dealing with mental health issues.

Working with Lawyers New Complex Case Rate (CCR)

Legal Aid Ontario is implementing its Complex Case Rate policy. The new policy is scheduled to take effect April 1, 2011 and replaces an interim process that has been in place since March 2010. The CCR will offer qualified panel lawyers an enhanced rate of compensation for work on complex criminal cases, help-

More Family Law Services

LAO has improved how family law services are delivered in a number of communities. Family Law Service Centres have been established in Sarnia, Chatham, Toronto, Brampton, North York and Newmarket. These centres use a holistic approach to offering clients a wide range of services, including document preparation, mediation and settlement conferences so that more low-income Ontarians have an alternative to going to court. In the past year, since the FLSC opened their doors, staff has assisted more than 13,000 clients. 34

ing to retain high-quality representation for clients and improving access to justice. CCR was a part of the January 2010 Memorandum of Understanding between LAO, the CLA and the Ministry of the Attorney General. April 2011 | Briefly Speaking • En Bref


Legal Aid ontario Tariff Increase for Lawyers

An enhancement for lawyers was the regulatory approval to increase the tariff rate. Panel lawyers received a 10% increase last year and they will continue to receive increases of 5% annually to 2015. Lawyer Accounts

Legal Aid Ontario’s Lawyer Payments Department pays approximately 200,000 standard accounts annually, including settling more than 50,000 discretion accounts. LAO has taken steps, including improving processes and adding new resources, to reduce the number of outstanding lawyer accounts. Between June 2010 and February 2011 the number of accounts in the Lawyer Payments inventory was reduced by 60 percent from 10,300 to 4,287 accounts. LAO now settles 98 percent of standard accounts within 60 days. Expenditures to lawyers for certificate services

LAO expenditures to lawyers for certificate services rose to $110,673,424 between January and November 2010 – up 7% compared to the same time last year. Block Fees

In May 2010, LAO introduced a block fee pilot program for private bar lawyers who provide criminal law services for Legal STG_OBA_hfpg_287c_09_09

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Aid Ontario clients. The first phase of the block fees rollout was a learning phase, which was intended to help LAO and lawyers better understand the benefits and challenges of block fees for clients, the bar, LAO, and the criminal justice system in general. LAO is having discussions with the Criminal Lawyers Association about the program. Block fees do not take away hours or reduce payments to lawyers. LAO’s rate for block fees includes a calculation on all fees and discretion historically paid for most tariff enhancements available on four categories summary matters – mischief, theft, assault, and failure to appear/comply. Improving Online Compliance

LAO has enhanced Lawyer Payment Portal compliance and investigation capabilities. Additional resources have been allocated to review and assess compliance of lawyer’s billings submitted online. Increased Project Management

LAO has established a Project Management Office that, in conjunction with the Project Management Centre of Excellence from the Ministry of Government Services, is providing key training and tools to help ensure the success of LAO modernization initiatives. LAO has 35 key modernization projects underway.

estate transactions [Keeping realwhere they belong – in your office.] At Stewart Title, it’s how we work that sets us apart. We deal in title insurance and related products, undertaking no part of the transaction that has traditionally fallen to lawyers/notaries. Since our inception into the Canadian market, you will find that we have consistently combined comprehensive coverage with unparalleled support for lawyers/notaries. We are dedicated to streamlining your practice and increasing your revenue through our programs and innovative technology solutions. At Stewart Title, we know it’s our relationship with our customers that determines our success. That’s why service is the foundation of our business and integrity, the keystone in all our dealings.

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35


The Conference Centre at the OBa

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April 2011 | Briefly Speaking • En Bref


Advocacy IN Action

Bencher Election Campaign Underway OBeA Bencher This spring, several breaths of fresh air will waft through the hallowed Halls of Old Osgoode. The OBA has 62 incredible bencher candidates. The OBA has prepared a tool kit for its members as well as arranging for advertising, social network and web page exposure for them. Most importantly, we will be helping them “get out the vote” by providing interactive reminders to all members throughout the voting period. The names of OBA candidates appear on page 12 of this issue of Briefly Speaking. Good luck to all!!!

Justice for Small Business and Ontario Families

The Ontario Bar Association made its submission to the Standing Committee on Finance and Economic Affairs in connection with that committee’s pre-budget consultations. The submission argued for:

(a) A regulation under the Business Corporations Act and other amendments that would permit the issuance of nonvoting family shares from legal professional corporations. There is currently an OBA task force developing a comprehensive strategy to effect these changes.

Kennedy will assist in enhancing protections for vulnerable workers, including foreign domestic workers, migrant farm workers and temporary foreign workers.

(ii) The Law Commission has also invited the OBA to participate on the advisory panel that will, over the next year, develop a framework to make the law fairer, more accessible and more effective for older adults. (iii) The Insurance and Civil Litigation Sections continue to work on the Rules Committee’s review of interest and discount rates in personal injury cases.

(iv) The Environmental Law Section is commenting on proposed regulations for Municipal-Class Environmental Assessment. (v) To add an international flare, the Securities Law Subcommittee of the Business Law Section prepared the Canadian Bar Association’s commentary for the U.S. Securities and Exchange Commission regarding the scope of privaterights of action for securities fraud following the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

(b) Improving justice outcomes and efficiency through the formation of a Unified Family Court in Ontario.

Bundle Up—It’s Court out There!

The Professional Regulation Committee of the Law Society of Upper Canada has established an “Unbundling Working Group” to look at the issues surrounding limited-scope legal services. They have drafted some proposed amendments to the Rules of Professional Conduct to deal with this growing phenomenon. Further rule changes to deal with limited-scope representation in the court context are expected. The OBA provided its submission on the topic to the Law Society in January. Our submission addressed necessary protections for clients as well as professional integrity, discretion and privilege. John O’Sullivan, from the Civil Litigation and Estates & Trusts Section executives, co-chaired the OBA’s working group on limited-scope retainers and he provides more details on the topic in this issue of Briefly Speaking [see page 37].

Making a Difference

The OBA continues to play a leading role in important policydevelopment

(i) The Law Commission of Ontario selected the OBA to be the representatives of the legal profession for the Commission’s Vulnerable Workers and Precarious Work Project. As a member of the Advisory Panel, OBA Secretary Sean Briefly Speaking • En Bref | April 2011

37


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eye on privacy

Case Summary: Citi Cards Canada v. Pleasance, 2011 James Morton The Court of Appeal decision in Citi Cards Canada v. Pleasance, 2011 ONCA 3 deals with the narrow issue of whether a financial institution is allowed to disclose mortgage balances to a judgment creditor. In concluding that the Personal Information Protection and Electronic Documents Act (PIPEDA) bars such disclosure, the court made important observations about PIPEDA that have significance more broadly than in the narrow context of judgment debtor collection issues.

Nevertheless, the court sided with the individual; this suggests how seriously PIPEDA privacy rights will be taken by the courts. James Morton practises with Steinberg Morton Hope & Israel in North York. He is a past president of the Ontario Bar Association and is chair of the Briefly Speaking Editorial Board.

First, the court made clear that PIPEDA is a complete code and personal information (“information about an identifiable individual”) can be disclosed only in accordance with consent of the individual or a specific exemption under s 7 of PIPEDA. The Court emphasizes the exemptions to PIPEDA are exclusive holding: First, it is inconsistent with the plain wording of s. 7(3) of the Act. “An organization may disclose personal information ... only if the disclosure is [authorized by one of the exemptions]” (emphasis added). Clearly, the disclosure that is the subject of the listed exemptions is the disclosure of the organization and not that of the individual whose information is in play.

Second, the use of personal information is limited to intraorganizational purposes (absent an exemption). So, an organization collecting personal information can share that information widely within the organization­—provided the use is for purposes consistent with its collection—but no sharing outside the organization is proper. The court held: In short, PIPEDA seeks to balance the privacy rights of individuals in their own personal information with the needs of organizations to collect, use or disclose personal information for reasonable purposes. Generally speaking, in my view, those “reasonable purposes” will relate to the needs of the organization.

Finally, the court’s overall approach to PIPEDA was strictly to preserve the privacy rights of the individual. In the specific case, the individual was a debtor who owed money under a judgment. The individual was not especially sympathetic and appeared to have been uncooperative with collection efforts. Briefly Speaking • En Bref | April 2011

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Institute2011

Keynote Speaker, Steve Paikin, addresses Instititue 2011

Bee-lieve it! Another Institute has Come and Gone … and the Buzz Was All Positive Have you ever observed the humming and buzzing of bees as they leave and enter the hive? If you have, then you can envision Institute 2011!

From February 3-5, 2011, over 2,000 attendees from the legal profession hummed and buzzed in and out of The Fairmont Royal York Hotel and the Conference Centre at the OBA to: take in 23 outstanding continuing professional development (CPD) sessions; listen to a topical keynote address by renowned journalist and host of TVO’s The Agenda, Steve Paikin; unwind and network at a welcome reception which also featured a performance by The Second City comedy troupe; and visit over 20 sponsor and exhibitor booths which carried an array of law-related products and services. Of note, a number of Institute’s CPD programs received the Law Society’s Professionalism and/or New Member accreditation, in addition to the Sole, Small Firm and General Practice breakfast and the Young Lawyers’ Division luncheon, “Build Your Brand, Build Your Practice”, special events. In fact, the latter were specifically designed to assist members to get a jump start 40

to meeting the professionalism requirement at the beginning of the year. For members who took multiple programs, Institute 2011 was indeed one-stop-shopping for their annual CPD hours. What was also gratifying to see this year was that Institute attracted quite a few members from outside the GTA. One member said that attending Institute enabled him to, not only take in several programs of interests over the course of two days, but he was also able to fulfill some special shopping requests before heading back north on Sunday.

No conference can be a success without the tireless efforts of the worker bees, both at the staff and member volunteer level. The OBA’s Annual Institute is the largest professional development event this organization undertakes, and the commitment, enthusiasm and dedication shown by all those involved in its development and execution, is widely acknowledged and deeply appreciated. Thank you.

Abena Buahene, director, Continuing Professional Development

April 2011 | Briefly Speaking • En Bref


Institute2011

Briefly Speaking • En Bref | April 2011

41


Supreme Court of Canada Update

Summaries Eugene Meehan, Q.C.

T

he following is a summary of all appeals and all leaves to appeal (ones granted­—so you know what areas of law the S.C.C. will soon be dealing with). For leaves I’ve specifically included both the date the S.C.C. granted leave and the date of the C.A. judgment below. Supreme Court of Canada Update

APPEAL JUDGMENTS ADMINISTRATIVE LAW: STANDARD OF REVIEW; (SOLICITOR-CLIENT) COSTS Smith v. Alliance Pipeline Ltd (Federal Court of Appeal, April 8, 2009) (33203) Feb. 11, 2011

In the context of expropriation of a pipeline easement across a farmer’s land, and failure to perform agreed-upon reclamation work, the decision of a statutory arbitration committee was subject to intervention on judicial review only if found to be unreasonable. Solicitor-client costs (throughout) was justified for four reasons: • expropriation statutes authorize awards of “all legal, appraisal and other costs” [emphasis in original of SCC judgment]

• accords with the object and purpose of the applicable Act

• this was a case in which “justice can only be done by a complete indemnification for costs” 42

• a litigant should not be made to bear the costs of what was clearly made into a test case by the other side. CHARTER, LANGUAGES: PUBLIC INTEREST FUNDING

R. v. Caron (Alta. CA, April 13, 2010) (33092) Feb. 4, 2011

The S.C.C. reiterated the criteria for granting a public interest funding order:

• a party genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial - in short, the litigation would be unable to proceed if the order were not made • the claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means

• the issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases April 2011 | Briefly Speaking • En Bref


Supreme Court of Canada Update • the courts have a discretion to consider all relevant factors that arise on the facts.

PHARMACEUTICALS: PRICING; STANDARD OF REVIEW

R. v. Bruce (Alta. CA, April 22, 2010) (33735) Feb. 2, 2011

The Patented Medicine Prices Review Board had jurisdiction to request US pricing information from a drug company wishing to sell into Canada. The decision of the Board was “unassailable” under either the standard of correctness, or the standard of unreasonableness.

CRIMINAL LAW: ADEQUACY OF ID EVIDENCE

This appeal was a criminal appeal as of right. The S.C.C. dismissed the appeal in two paragraphs, the S.C.C. emphasising: • •

the trial judge’s decision was reasonable was supported by the evidence

• no error in the application of the relevant law to the facts. CRIMINAL LAW: NATIONAL SECURITY

R. v. Ahmad (Ont. Superior Court, March 18, 2010) (33066) Feb. 10, 2011

S. 38 of the Canada Evidence Act (whereby judges of the Federal Court have the responsibility to consider potentially injurious or sensitive information where national security is claimed, and to determine whether, and under what conditions, that information ought to be disclosed) is constitutionally valid. S. 38 confers on the Attorney General of Canada the power to withhold information from criminal courts even where a Federal Court judge has ordered disclosure be made. Courts have remedies including, but not limited to dismissal of specified counts, a finding against any party on any issue to which the undisclosed information relates, or a complete stay of proceedings. FREEDOM OF THE PRESS: CAMERAS IN COURT

Celgene Corp. v. Canada (Attorney General) (December 23, 2009) (33579) Jan. 20, 2011

LEAVE TO APPEALS GRANTED

ABORIGINAL LAW: MÉTIS; MOOTNESS; LIMITATIONS Manitoba Métis Federation Inc., et al v. Attorney General of Canada, Attorney General of Manitoba (Man. CA, July 7, 2010) (33880) Feb. 10, 2011

The S.C.C. will deal with, in the context of a Métis land claim, mootness, limitation periods, and fiduciary duties. CIVIL PROCEDURE: FORUM NON CONVENIENS

Les éditions Écosociété inc., Alain Deneault, Delphine Abadie and William Sacher v. Banro Corporation (Ont. CA, June 4, 2010) (33819) Jan. 13, 2011

Where is the most convenient forum in the context of a defamation action where a book is published in Quebec, subsequently released to bookstores in Quebec, Ontario and elsewhere in Canada, as well as available for purchase on the web, referenced on websites, as well as newspaper articles available and accessible in Ontario. CRIMINAL LAW: SENTENCING

Canadian Broadcasting Corp. v. Canada (Attorney General) (Que. CA, March 16, 2010) (32920) Jan. 28, 2011 Rules of Practice of the Quebec Superior Court, which: •

limit where journalists may film

• limit photographs and interviews in public areas of courthouses • prohibit broadcast of official audio recordings of court proceedings are constitutionally valid.

DWK v. Her Majesty the Queen; DAP v. Her Majesty the Queen (BCCA, August 26, 2010) (33911) Feb. 10, 2011

There’s a publication ban in this case, where issues include the following: whether s. 139(1) of the Corrections and Conditional Release Act merges sentences for the purpose of section 731(1) of the Criminal Code; whether s. 731(1) of the Criminal Code is capable of being interpreted as applying to more than one sentence of imprisonment; whether a ‘remnant analysis’ applies.

FREEDOM OF THE PRESS: BROADCASTING VIDEO EVIDENCE

Canadian Broadcasting Corp. v. Canada (32987) Jan. 28, 2011

The Quebec Superior Court can authorize journalists to view (in another room) a video recording that had been produced as an exhibit, to film the screen on which the statement was played back, but can prohibit journalists from broadcasting the recording. Briefly Speaking • En Bref | April 2011

Eugene Meehan, Q.C. is the chair of the Supreme Court Practice Group with Lang Michener LLP. emeehan@langmichener.ca.

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ion ssociat

lA Counse e t a e r Corpo erenc ess f n n a i o d a C c Can pring g Suc S ivin tional a ns, Dr N 11 io t lu 20 o ring S Delive to, Toron n o t il H

, are in u o y lp stry to he t indu d a h e n w ig in– atter is des your e in c s n No m e e them onfer he challeng ress d t this c d a y entif d to you id ractice an now! p ister g e house R . tively effec .org

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Events The Labour & Employment Section is hosting a fundraiser to support Lawyers International Food Enterprise (LIFE) on June 23rd – Wine Tasting Scotch Tasting Silent Auction.

Don’t Miss It!

OBA Notice Board

Dinners: Upcoming Sections Award Insurance - April 28 Trusts & Estates - May 31 Insolvency - May

Privacy - June

Real Property - June Charity & Not-For-Profit WCB - June June 15

ADR - June Family -June

Civil Litigation October 26

International - June Municipal - June Pensions & Beneits - June

44

April 2011 | Briefly Speaking • En Bref


ams! Note To Self… Attend These CPD Progr 6 Your First Judicial Review (YLD) - April Mental Health Law in Ontario - April 12

der Activism and Other Corporate Governance Update - Sharehol Developments - April 27 il 28 10th Annual Employment Law Issues - Apr

Advocacy-Winning Tactics Summary Judgment Motions: Persuasive May 2

Need to Know About Child Family Law Fundamentals: Everything You Support (YLD) - May 3 Strategic Legal Writing - May 6 10 (am) Will and Estate Planning Essentials - May

s - May 10 (pm) Beyond Will and Estate Planning Essential Environmental Law Issues - May 12

te Lawyers - May 16, 2011 Renewable Energy Projects for Real Esta

ts: Essential Updates on Key 9th Annual Pension and Benefits Hot Spo Legal Issues - May 17, 2011 Practice and Workplace Safety and Insurance Law: Professionalism - May 25

Section Executive Nominations – WE NEED YOU! Interested in contributing to the direction of one of the OBA’s 36 Sections? Complete a nomination form (yes, you can nominate yourself!) and join the Executive. More information will be available on your OBA Sectionwebpage. Check soon for forms and deadline dates!

www.oba.org/sections

Briefly Speaking • En Bref | April 2011

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April 2011  

The Ontario Bar Association is a branch of the Canadian Bar Association, an organization of lawyers formed to provide support by the profess...