Legal Feeds Blog
Patrick Brazeau to be sentenced on assault, cocaine charges, Canadian Press
Verdict expected for Calgary man who stabbed neighbour to death, Canadian Press
ICBC blames highway bike death on cyclist negligence, Canadian Press
An online poll suggests 54 per cent of Canadians would consider taking legal action for violations of Canada’s anti-spam legislation.
|Martin Kratz predicts there will be “opportunistic litigation” around the anti-spam act.|
Although the Canadian Radio-television and Telecommunications Commission has issued fines to a number of companies for violations, Canadians will be able to file lawsuits against businesses for violations when the transition period ends on July 1, 2017.
Conducted by Google Consumer Surveys in August for Toronto-based itracMARKET, a software company that provides compliance tools for businesses, the poll is based on 1,000 responses from across the country.
“We clearly do expect there will be opportunistic litigation and we expect it will be in the form of class action lawsuits,” says Martin Kratz, a partner at Bennett Jones LLP in Calgary.
Kratz says part of the problem for companies is the “considerable ambiguity” about how the law works because of the complex interaction between the exemptions in place, the regulations, and the act itself.
“The law itself is horribly complex to operate within,” he says.
In the CRTC enforcement actions so far, where there was no consent to the messages and where large volumes of messages were blasted out and unsubscribe requests were ignored, Compu-Finder faced a $1.1-million fine. The CRTC has also gone after technical violations by Porter Airlines, which faced a fine of $150,000 for failing to have an unsubscribe mechanism in place. In addition, online dating site Plenty of Fish faced a $48,000 fine for failing for the lack of prominence of its unsubscribe mechanism.
“It’s going to take some litigation to explore what all the boundaries are,” says Kratz.
Having a solid compliance program is important to help combat legal action, he says. Before pressing send, prudent marketers should make sure their systems are checking outgoing message recipients against their permissions list.
“Behind your mechanism for collecting permissions, you need to have a robust customer relationship management system,” he says.
Companies that may have taken an expedited compliance approach might want to take a harder look at their electronic communications activities as due diligence is a defence, Kratz adds.
“It’s important to address technical compliance requirements as well as the business elements of a compliance program.”
When it comes to why Canadian continue to see so much spam, it could be some people are confusing international and U.S.-based spam as many American companies may still be unaware that Canada has a strict regime. In the United States, the law is that the first message is allowed but the company has to identify itself and honour an unsubscribe action from a consumer. In Canada, the first improper message is a violation.
When asked what legitimate industries are the worst spam e-mail offenders, most survey participants said retailers were at the top at 38.1 per cent, followed by group-buy sites at 34.1 per cent, and travel sites at 30.3 per cent. Restaurants were the lowest at 8.9 per cent.
Kratz says his impression is that retailers are “highly aware of the law” and want to be fully compliant.
In some cases, however, retailers may not know what those administering their e-mail campaigns are doing.
“I have a sense a lot of companies are still doing nothing or they’re doing things wrong,” says Steve Szentesi of Steve Szentesi Law PC, a competition and advertising lawyer in Toronto.
He says some clients he has spoken to still want to take the chance on not being compliant or he sees that retailers are outsourcing their e-mail marketing to agencies that aren’t producing compliant programs.
“From a lawyer’s perspective, it’s surprising,” he says.
Advertising agencies that work with many brands are in some cases drafting terms and conditions for promotions and the compliance they came up with was “completely wrong.”
“The message is that companies are aware of it but in some cases don’t want to do anything or they are aware but are doing things wrong,” says Szentesi. “A lot of [ad] agencies field the legal advice for their clients.”
Once the private action regime is in force in July 2017, it could be open season on companies that have failed to comply.
“I think plaintiff’s counsel are essentially building cases against companies that are clearly doing it wrong,” says Szentesi.
Szentesi predicts there will be a significant amount of private enforcement.
“The damages are $200 per infraction, so $200 per e-mail up to $1 million a day. It’s just too easy to bring the cases after 2017. They may have a sense it’s theoretically severe, but we haven’t seen the CRTC do a lot in the first year and a half. I think the plaintiff’s counsel are going to be much more aggressive.”
Dispute over residential school records in court today, Canadian Press
Officer's lawyer to question streetcar driver in Sammy Yatim trial, Canadian Press
While the Ontario government is promising to fix errors on the juror questionnaire, the Ministry of the Attorney General has confirmed it’s too late to do it for next year.
|‘You can still ask them questions about their criminal record, I would think, to ensure that they still qualify,’ says Scott Bergman.|
While most people with a criminal record wouldn’t be eligible to sit on a jury, the forms provide for 20 exceptions. However, three of those listed acceptable offences do in fact bar potential candidates from serving, so people who have been correctly filling out the form since 2010 amendments to the Juries Act may have incorrectly served as jurors. Those amendments prohibited those convicted of hybrid offences from serving but in the meantime, at least three of the offences that don’t automatically disqualify someone have become hybrid offences: impersonating a police officer, committing an indecent act, and making indecent or repeated phone calls.
“The ministry will be taking steps to amend the questionnaire to remove these three offences,” said Crawley.
“It’s not surprising they can’t change the form. I think it just went out this month,” says Scott Bergman, a criminal defence lawyer at Cooper Sandler Shime & Bergman LLP.
The error means some people who have been filling out the form correctly since the 2010 amendments to the Juries Act may have wrongfully served as jurors.
“If I didn’t realize that I wasn’t properly allowed to be part of a jury pool, I could end up on a jury [and] I never should have been on a jury,” says Bergman.
The Ontario government, however, has noted that the jury roll form is only one of the steps taken in the jury selection process. Once a jury is selected, an officer is authorized to randomly conduct criminal record checks on jury panel members and remove those who are ineligible.
As a result, Bergman says the process limits the potential for problems. “You can still ask them questions about their criminal record, I would think, to ensure that they still qualify,” he says.
While the government is unable to amend the forms right away, Crawley noted it’s working on notifying prospective jurors.
“So for as long as this issue or that wording in the questionnaire remains, I think what they would have to do is alert each of the actual individuals who are brought into the courthouse that there are certain offences that they may have answered one way [but] in fact it wasn’t accurate or was incorrect,” says Bergman.
“They need to find a way to do that in a fair and also a discreet way.”
Valeant director to head review of allegations of wrongdoing, Canadian Press
B.C. pimp who lured teens in court today for sentencing hearing, Canadian Press
From heated dinnertime debates with her dad as a youth to appearances in essentially every level of court in the country, Patricia Jackson has long been carving her reputation as a fierce advocate and litigator.
|Veteran litigator Patricia Jackson received the Ontario Bar Association’s award for excellence in civil litigator at an event in Toronto last night.|
And this is from someone who says she always had an “aversion to conflict.”
On Oct. 22, the senior trial and appellate litigator at Torys LLP joined friends, family, and colleagues at Toronto’s Ritz-Carlton Hotel as she received the Ontario Bar Association’s award for excellence in civil litigation. While it was a night to honour her work and contributions, she also took some gentle ribbing as she thanked the OBA for recognizing her, her predecessors for inspiring her and her younger colleagues for continuing to teach her the finer points of civil litigation each day.
Jackson said that when she first began her career, civil litigation was something she thought she’d do for a couple of years at most because she dislikes repetition and the drudgery of routine. But civil litigation proved anything but routine, she said, noting she finds herself “in the richest part of my career.”
Guest speaker Louise Arbour, a Canadian Walk of Fame member, a former judge of the Supreme Court of Canada, and a long-time colleague of Jackson’s, said that when they first met and worked together, Jackson’s prowess and potential were obvious. Arbour, who led the commission of inquiry dealing with the Kingston prison for women in the mid-1990s, chose Jackson as commission counsel due to her reputation as a “fierce” litigator.
Arbour joked that when they met face to face for the first time, she looked up at the relatively much-taller Jackson and told her she’d have to wear flats for the next year.
“She looked at me and she said, ‘Low heels.’ But there we were — we were launched,” said Arbour, noting it turned into a friendship that lasts today. Arbour said Jackson represents the best example of a civil litigator in Canada, particularly for younger women following in her footsteps.
As for meeting Arbour, Jackson said she at first sought to put her at ease.
“I decided to do a few stupid things so she could talk about them endlessly,” said Jackson. “And I must say I did, in fact, wear flats for a year.”
Intellectual property lawyers are bracing for change as the federal courts move forward with an effort that could see much higher cost awards as a way of discouraging unnecessary and vexatious litigation.
Earlier this month, the rules committee for the Federal Court and Federal Court of Appeal issued a discussion paper that weighs the pros and cons of various approaches to cost awards.
As it stands, Canada’s federal courts rely on a tariff-based scheme where legal services are assigned a category from which a dollar amount is derived. These costs, which often amount to mere thousands, are insignificant for corporations spending millions on patent wars. That, in turn, has led to abuses by litigants dragging out proceedings for strategic purposes.
Alan Macek, an intellectual property lawyer at Dimock Stratton LLP, points out that the federal courts also hear immigration and citizenship cases where the tariff-based system offers predictable costs for individual litigants and improves access to justice.
“Different incentives are at work here, whether you’re trying to provide access to justice, where an individual trying to advance their case is not going to get hit with extremely onerous costs for advancing what they think is a legitimate case,” says Macek.
“And then on the other hand, the court wants tools to guide behaviour of well-heeled litigants who may be bringing motions that are not needed . . . and wants a tool to curb some of that behaviour, which they may see as being abusive, through a cost mechanism.”
One question posed by the discussion paper asks: “Do you think the Courts’ approach to costs should be applied uniformly or be adapted based on litigation type or whether the unsuccessful party is a self-represented litigant?”
The question alludes to a “principle of proportionality” that will likely figure into whatever reform the courts decide to implement. “A single set of tariffs that may apply to an individual trying to advance their case may not apply to a Fortune 500 company that’s spending millions on their legal,” says Macek in explaining the issue.
That being said, anything that stops at merely rewriting the rules or defining the characteristics of unnecessary litigation will be counterproductive, says Macek. He thinks the courts need to be able to exercise stronger discretion on a case-by-case basis when it comes to cost awards.
“A certain motion being brought in one type of proceeding may be seen as entirely proper, and the same type of motion being brought elsewhere is going to be seen as abusive. It really depends on the context,” he says.
For his part, Macek thinks the court needs to combine a more dynamic use of discretionary power with clearer lines of communication through guidelines and practice notices for counsel.
The rules committee will be accepting feedback on research from the discussion paper until Nov. 23, 2015.
Halifax man left with life-threatening injuries after assault, Canadian Press
Trial of Toronto officer charged with fatal shooting continues, Canadian Press
The new tort of intrusion upon seclusion has been “implicitly” recognized in Nova Scotia, according to a ruling in a medical records privacy breach class action that challenged its existence in that province.
|It’s ‘just a matter of time’ before the Nova Scotia courts make a finding of liability based on the tort of intrusion upon seclusion, says David Fraser.|
But in a recent ruling, Supreme Court of Nova Scotia Justice Arthur Pickup said while the tort was never explicitly recognized in the province, it has been referred to in jurisprudence from the courts.
“While not explicitly recognizing the tort in Trout Point Ltd. v. Handshoe, Hood J. cited Jones . . . and held that ‘in an appropriate case in Nova Scotia there can be an award for invasion of privacy or as the Ontario Court of Appeal called it, the ‘intrusion upon seclusion,’” wrote Pickup.
Pickup added that another case, Murray v. Capital District Health Authority (cob East Coast Forensic Hospital) , also held that while “the tort of intrusion upon seclusion is novel . . . s. 7(1) of the [Class Proceedings Act] does not exclude novel claims; it means to exclude claims that have absolutely no chance of success, or frivolous claims.’”
The ruling is “another example of the tort of intrusion upon seclusion evolving in terms of being recognized in different common law provinces across the country,” says privacy lawyer Ted Charney. “The motions judge in this case reviews the historical evolution of the new tort and concludes that it’s been implicitly, if not expressly, been recognized in Nova Scotia.”
McInnes Cooper privacy lawyer David Fraser says that, to date, there have been no findings of liability based on the tort of intrusion upon seclusion in Nova Scotia but he suggests “that’s just a matter of time.”
“I don’t think there’s any reason to suspect that the Nova Scotia courts would do anything differently or follow a different path,” says Fraser.
In Hemeon, the defendant argued that if the tort is recognized in Nova Scotia, it should require the plaintiff to prove that the privacy breach caused them “anguish and suffering.” The defendant therefore asked the court to order the disclosure of the plaintiffs’ medical records in order to prove that the breach had caused them distress.
While mental distress is a requisite for the tort of intrusion upon seclusion in Australia, Pickup said there has been such no obligation in the Canadian jurisprudence.
“This element has not been required by Canadian courts that have recognized the tort, including, implicitly, this one,” wrote Pickup.
Charney says once a plaintiff has established that there has been a breach of confidential information that would be considered offensive, anguish and suffering are presumed.
“You have to establish that someone has invaded your privacy by looking at confidential records and that the nature of the records that were disclosed to this person would be, on an objective basis, be highly offensive,” he notes.
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