Canada

N.B. woman testifies against alleged kidnapper, CBC News

Man who killed wife won't get her life insurance, Toronto Star

Appeal court stays marijuana ruling, CTV News

United States

Winklevoss twins won't appeal Facebook settlement, Reuters

U.S. court has no say in loan sale: Anglo Irish bank, Reuters

International

Dutch populist politician cleared of hate speech, Reuters

Bangladesh ex-PM's son sentenced for graft, Reuters

As a big user of social media, both personally and particularly for work, I am always concerned about privacy. My privacy settings are set on the highest options on Facebook, I’m still loathe to do online banking via my smartphone. Our publications — Canadian Lawyer, Law Times, InHouse, and 4Students — are all represented in various social media be it Twitter, LinkedIn, Facebook, or blogs like Legal Feeds. What I say and do is everywhere online and controlling it is important.

Beyond that, practically every adult Canadian at some point banks online, checks their credit card statements online, uses a debit card, takes advantage of online e-mail services like Gmail or Hotmail, has bills or statements sent to them electronically, files their taxes online. And if you’re not doing it yourself, your credit card company, bank, online music or video service, and more are maintaining and/or transmitting your personal information electronically. Even the pictures and signatures on our driver’s licences or passports are now transmitted across the country electronically.

I want to believe my information is safe, but I cannot. I’m not alone and this is probably not news not anyone. So I am big supporter of Canada’s Privacy Commissioner Jennifer Stoddart, who is at the forefront of identifying online privacy issues.

Yesterday, she released her annual report to Parliament that focuses heavily on online privacy. Stoddart and her office are making a difference on this front internationally, not just within our own borders, which is absolutely necessary as the Internet is borderless. In the last year, the privacy commissioner’s office has stepped in and been instrumental in changes at Google Buzz and Wi-Fi, eHarmony, and Facebook.

In a bit of a bombshell in the report, Stoddart reported that consumers’ social insurance numbers, banking information, and tax records were discovered on used electronics being resold by Staples Business Depot. It chastised the office supplies chain for not fully deleting data on returned devices such as laptops and USB hard drives, leaving customers at risk of identity theft or fraud.

However, as privacy expert Michael Geist points out on his blog today, why do consumers have to wait for the annual report to find out about these things?

While these are important privacy developments, the release of this information weeks or months after the investigation or audit was concluded points to a significant flaw in the current reporting approach. I recognize that that is how the system currently functions - the OPC reports to Parliament on audit findings and only occasionally publicly reports on PIPEDA investigations - yet there is something fundamentally flawed with a system that keeps consumers in the dark for months about privacy risks. This is particularly ironic given the OPC’s emphasis on data breaches and the need for the private sector to disclose breaches as quickly as possible. The same should be true for audits and investigations to allow the public to react to newly identified privacy risks.

In 2006, Law Times reported that the privacy commissioner was seeking more power to force organizations to make changes if they’re found to have breaches of the Personal Information Protection and Electronic Documents Act. The role of the commissioner was and still is much more of an ombudsman than an enforcer. Just last month, she commented at the Canada 3.0 conference — citing the case of Sony and its PlayStation Network — that her office should have the power to fine large companies over their ever-increasing privacy breaches. Even the latest updates of PIPEDA, which died when the federal election was called, did not include such powers.

The privacy commissioners role is increasingly important in today’s wired (or rather wireless) society. She should have more flexibility and power in order to position that role at the level is should be.

Canada

Ecojustice seeking court action to protect caribou, Calgary Herald

Toronto considers parking ticket court fee, CBC News

Psychiatrist accused of sexual assault, Calgary Herald

United States

Lawsuit over World Trade Centre collapse can proceed, Reuters

Judge approves $1.375B bid for TerreStar, Reuters

International

Indian auto group to challenge gov't decision to reclaim land, Reuters

Danish court stiffens sentence for cartoonist attacker, Reuters

Two Canadian law firms representing a pension fund have filed a $6.5-billion class action in the Ontario Superior Court of Justice against Sino-Forest Corp., a Hong Kong-based forestry company traded on the Toronto Stock Exchange. Sino’s senior officers and directors are also named in the proposed class action.

Sino-Forest’s logo at the entrance of its office in Hong Kong. Photo: Reuters/Xavier Ng

Koskie Minsky LLP and Siskinds LLP said yesterday the proposed class action was filed on behalf of the Labourers’ Pension Fund of Central and Eastern Canada, which is seeking to be the representative plaintiff on behalf of all persons and entities that purchased Sino-Forest securities from May 14, 2007 to June 2, 2011.

Sino-Forest has had a pretty rough ride since June 2, losing about 90 per cent of its value on the Toronto Stock Exchange following allegations about the company’s governance and business model. The stock’s fall started following the release of a report by Muddy Waters Research, which accused the company of fraud and exaggerating the size of its forestry assets.

The lawsuit alleges that during that period the company “materially misstated Sino’s assets and results of operations, and thereby misrepresented that Sino’s financial statements had been compiled in accordance with generally accepted accounting principles.”

In a statement following the filing, Dimitri Lascaris, a partner at Siskinds who co-represents the pension fund, said the case “raises some hard and troubling questions about the quality of diligence being performed by some well-compensated fiduciaries upon whom Sino’s shareholders relied, and we look forward to establishing in a court of law whether those fiduciaries fell woefully short of the standards that the investing public rightly demands of them.”

Today, Sino-Forest lost half of its already-decimated value, plunging to an eight-year low after billionaire hedge fund manager John Paulson dumped his entire stake in the company. Paulson had been Sino-Forest’s largest shareholder, with a 14.1-per-cent stake.

It was the latest in a series of set backs. Credit rating agency Fitch also cut its debt rating on the firm to junk status and Canadian brokerage RBC Capital Markets suspended its coverage, pending the outcome of an internal company review.

An in-depth report in The Globe and Mail Saturday reinforced some of the Muddy Water charges, raising more questions about a Sino-Forest business model that the company says centres on buying and selling trees in China.

Sino-Forest said Monday the Globe report was an “incorrect portrayal” of its business. It has set up an internal committee to look into the charges and report back, probably within three months.

Sino-Forest has shed nearly $4.5 billion in market capitalization since the June 2 Muddy Waters report.

With files from Reuters.

Canada

3 of 4 charged in N.S. spending scandal back in court, CTV News

N.S. to hold onto accused drug dealer's cash until hearing, CBC News

Inuit group withdraws request for narwhal judicial review, CTV News

United States

Wis. same-sex registry constitutional, judge rules, Reuters

Bank of America to face 2 mortgage lawsuits, Reuters

International

Hong Kong court won't rule on Tiger Asia trading case, Reuters

Shell to pay $2M for 2008 U.K. gas fire, Reuters

The Ontario Court of Appeal is set to deliver long-awaited guidance on judges’ authority to use the summary judgment rule.

The matter is a key one for lawyers in the province, who have been eager to see just how the courts will deal with changes to the wording related to summary judgment under the revised Rules of Civil Procedure. The new Rule 20 allows summary judgment if there’s “no genuine issue requiring a trial.” The old provisions referred to “no genuine issue for trial.”

As Law Times reported last week, the issue came up in a case involving a slip-and-fall by a Canada Post worker. In that matter, the federal government sued the owners of the home where the worker fell. But Superior Court Justice Denis Power found the plaintiff had failed to provide evidence that the homeowners hadn’t met the standard of care and dismissed the case. In doing so, he said he felt comfortable falling in line with one judicial line of thought that says judges can make findings of fact in order to grant summary judgment.

In one of the cases before the appeal court, businessman Robert Hryniak is challenging Superior Court Justice Duncan Grace’s summary judgment ruling ordering him to pay investors $2 million in a civil fraud case. The plaintiffs also sought summary judgment against Cassels Brock & Blackwell LLP and its former managing partner, Gregory Jack Peebles. Grace dismissed motions for summary judgment against Cassels Brock and Peebles. Instead, he ruled a trial would be necessary in those cases. But Hryniak is now alleging the judge went too far in his use of the rule, the Financial Post reported.

The cases dealing with summary judgment, including Bruno Appliance v. Cassels Brock & Blackwell LLP, are before the appeal court this week. The Bruno Appliance matter is set for Wednesday.

Canada

Mountie to testify in N.B. abduction trial, The Vancouver Sun

Group seeking water-protection legislation, Ottawa Citizen

OPP detectives review judge's murder case, Ottawa Citizen

United States

Supreme Court rejects global warming lawsuit, Reuters

Lawsuit against Wal-Mart dismissed, Bloomberg

International

Court suspends order to remove Mubarak name, Reuters

British police officer in court over G20 death, Reuters

Kim Baryluk, pictured outside court in 2005. Photo:Toronto Star/GetStock.com

Kimberly Townley-Smith’s disciplinary hearing has taken another twist, with the lawyer launching a lawsuit over the Law Society of Upper Canada’s handling of her case.

The Toronto lawyer was suspended on an interlocutory basis in June 2010 amid claims she repeatedly sought to litigate allegations of conspiracy and corruption among Superior Court judges, despite an earlier attempt to resign from practice.

Hearing dates had been set down earlier this year, but Townley-Smith won an adjournment on medical grounds. At a proceedings management conference on June 13 for scheduling of her matter, she said she had launched the suit because the law society was engaging in an “abuse of power” by threatening her with the prospect of a hearing, “without there being any realistic chance of those hearing dates proceeding.”

As well as her own health issues, she said the fact the law society is still providing her with disclosure showed the society was not ready to proceed. Townley-Smith also said that what she had received so far raised concerns about “altered documents” and “insufficient disclosure.”

“The law society continues to pretend we’re going to have a hearing date as if that’s some sort of motivator for me to give in to whatever they want,” said Townley-Smith, who was participating in the conference by phone.

The announcement was a bit of a bombshell to presiding bencher Paul Schabas, who was informed that he was among those named in her statement of claim, which has been filed with the Ontario Superior Court in Hamilton.

Townley-Smith said Schabas had shown a pattern of “giving the law society what it wants” in previous PMCs. She added, “I don’t know why you would want to continue to do the same thing that got you sued and increase the damages. That appears to be what the law society is doing.”

Townley-Smith said her medical condition had improved somewhat after surgery, but that she was still experiencing symptoms and is scheduled to discuss her options with her surgeon next week, so she won’t have any idea on her prognosis until at least then. The case returns to PMC on June 27 after the meeting with the doctor.

The judicial corruption allegations at the heart of Townley-Smith’s disciplinary proceeding all stemmed from a failed attempt to stop the release of the fourth installment of the Harry Potter film franchise in Canada on behalf of her client Kim Baryluk, whose band shared their name with a fictional band featured in the film.

After a costs award against Baryluk of $140,000, a suit was launched against three judges involved in the proceeding. In a separate lawsuit, Baryluk has claimed Townley-Smith acted alone on the judges’ suit, although Townley-Smith countered that Baryluk was fully informed at every stage. None of the allegations have been proven in court.   

When reached by phone, Townley-Smith said she didn’t want to discuss the issue any further.

“I’m going to decline to speak to you given the history of the Law Times reporting on this matter, which I don’t think has been unbiased,” she said.

A blog supporting Townley-Smith’s views has been set up with occasional updates on her case. It can be found at http://ktsandthelawsociety.blogspot.com/.

Canada

SCC won't hear appeal over B.C. parish properties, The Vancouver Sun

Former senator sentenced to jail for fraud, The Gazette

Top court won't review Hells Angels bail case, The Gazette

United States

Alabama man executed for murder of woman, 70, Reuters

Prosecutors seek jail time for ex-Credit Suisse broker, Reuters

International

Kenya sets up first supreme court, AFP

School's ban on hairstyles racist: British court, Reuters

The Supreme Court of Canada announced today it has granted a leave to appeal application in a case involving a British Columbia woman who suffered a severe traumatic brain injury during a motorcycle accident.

As is customary, the country’s highest court did not disclose its reasons for agreeing to hear arguments in the case of Clements (Litigation Guardian of) v. Clements.

The matter involves Joan Clements, who suffered her injuries while riding in rainy conditions on a Harley-Davidson motorcycle driven by her husband, Joseph Clements. The trial judge at the Supreme Court of British Columbia, Justice Christopher Grauer, ruled the husband was negligent in two ways: first, he was driving at an excessive speed — at least 120 km/h in a 100 km/h zone — and, second, his 1998 Harley-Davidson Road Glide touring bike was overloaded by 100 lbs. more than the gross vehicle weight rating in the owner’s manual.

Grauer applied the material-contribution test after finding that the wife had failed to meet the generally applicable but-for test for causation, and ruled that causation had been established, making the husband liable for the wife’s injuries.

The B.C. Court of Appeal overturned that decision in December 2010 and dismissed the action.

Justice David Frankel, writing for the unanimous appeal court panel, noted Grauer found that the wife’s counsel had failed to show that the motorcycle wouldn’t have capsized but for the husband’s negligence.

Once that determination was made, said Frankel, the trial judge should have ruled that causation was not proven.

“This is not a case involving either circular or dependency causation,” wrote Frankel, referring to considerations applicable to the material contribution test. “Rather, it is a case like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm. I do not consider it either unfair or unjust . . . not to fix Mr. Clements with liability when Mrs. Clements has been unable to show factually that his negligence was a cause of her damages.”