Legal Feeds Blog
Ontario tabled amendments this morning that will strengthen the privacy of health-care information across the province through measures such as mandatory reporting of breaches, loosened rules around prosecution, and a doubling of fines for health-care workers caught snooping.
Small private practices will be given the same consideration as hospitals and other large organizations, says Mary Jane Dykeman.
Small private practices will be given the same consideration as hospitals and other large organizations, says Mary Jane Dykeman.
Bill 119, which seeks to amend the 11-year-old Personal Health Information Protection Act, comes more than a year after the Rouge Valley scandal in which Toronto hospital workers were caught selling information about new parents to brokers of registered education savings plans.
“The Rouge Valley case was a tipping point,” says Mary Jane Dykeman, a lawyer at Toronto-based DDO Health Law. “It received a lot of media attention and it changed the issue in a somewhat sinister way to suggest that someone might profit from the information. This was beyond snooping for the sake of curiosity, which is also not acceptable.”
As it stands, health-care organizations that compile information about patients need to report privacy breaches to the patients themselves but not to the province or regulatory authorities.
The amended act will change that. Hospitals, long-term care facilities, and even doctors running their own offices will have to report privacy breaches to their respective medical colleges as well as to the information and privacy commissioner.
What qualifies as a reportable breach remains uncertain, but the amendments suggest that specific criteria will be spelled out in the regulations. There’s also a possibility that regulations may follow the lead of the federal Personal Information Protection and Electronic Documents Act that defines reportable breaches in a more general context.
In addition, the bill lifts a six-month statute of limitations on commencement of actions against privacy violations, a narrow window that left little time for Crown prosecutors to gather proper evidence. The new law removes that impediment entirely, giving regulators and prosecutors time to assess the breach before laying charges.
Finally, the new law will double fines for privacy violations. Individuals can be fined up to $100,000 for a violation, whereas information custodians such as health-care organizations and private medical practices can be fined $500,000.
Dykeman notes that under the amendments, small private practices will be given the same consideration as hospitals and other large organizations. As a result, it’s imperative that doctors and office managers train staff to understand their obligations under the act.
“If I'm a physician in private practice, I’m the custodian. I have all the same duties as the large hospital,” she says. “So I should be sure that I train the people for whom I'm responsible and have proof that I've done that. That's where the focus has to be.”
Secretary resumes testimony in Dennis Oland murder trial, Canadian Press
A Toronto man has been sentenced to 12.5 years in an American jail for running an international $13-million Internet fraud scheme.
Sualim operated what law enforcement officials refer to as a “sophisticated international fraud scheme” that crossed four continents and swindled millions of dollars from more than a dozen victims. In a statement, a U.S. Internal Revenue Service special agent said the sentence “reflects the severity of his egregious crimes.”
When he was running the e-mail scheme, Sualim lived in a multi-million dollar waterfront home in Toronto and had a fleet of luxury cars including a Porsche and a Tesla. Under his plea agreement, Sualim agreed to liquidate more than $2 million of his Canadian assets, to repay victims.
Between 2008 and 2013, Sualim helped operate a scheme in which he would create a web site for a Canadian company that claimed to manufacture semiconductor chips. He would then set up passports, e-mail accounts, and toll-free phone numbers for the Canadian company’s fake employees. He then sent millions of solicitation e-mails to Americans whose addresses he had purchased from a spam vendor.
The e-mails explained the Canadian company needed a product called “silicon germanium” to manufacture its semiconductor chips, and that it needed to enlist an American distributor to obtain the product from China, and the Canadian company would cover the entire upfront cost of the product.
Victims who expressed interest would be sent a series of e-mails with purchase orders, proposed contracts, and other documents created to make the transaction look legitimate. However, on the eve of the first shipment from China, the victim would be told the Canadian company’s financing had fallen through and the American distributor needed to supply some of the upfront cost.
If the victim agreed, the would be told how to wire his or her portion to an overseas bank account — usually in Cyprus, Greece, Hong Kong or China. Several other layers of communication and pleas for more money ensued. Victims who continued to send money ultimately received packages that were filled with worthless filler material.
Once victims discovered they were being scammed, their supposed Chinese and Canadian counterparts would stop responding to e-mails and phone calls.
The scheme Sualim created is similar to ones that have “been going on for decades” says Mark Hayes of Hayes eLaw LLP, first by mail, then fax, and now e-mail over the last decade or so.
“The interesting part about this one is that the scammer lived in Toronto — most of them live overseas somewhere and it’s much harder for authorities to identify and extradite them,” he says.
The FBI and IRS work together with the RCMP on the investigation over several years.
Last year, in Massa v. Sualim, Ontario Superior Court Justice Thomas Lederer looked at whether or not the RCMP was authorized to disclose information concerning Sualim to a lawyer at a private firm acting for Leon Massa.
“The defendant wrongly believed being outside the United States gave him the freedom to carry out his criminal activities. The FBI remains committed to pursue these criminals wherever they may hide. This case is a fine example of the partnership the FBI has with our international law enforcement partners through our legal attaches, as well as with domestic law enforcement agencies – all working together to bring justice on behalf of our citizens,” said FBI special agent in charge Douglas Price.
Federal government to appeal decision lifting niqab ban, Canadian Press
Body of missing Alberta two-year-old found: RCMP, Canadian Press
Murder trial of Dennis Oland begins in New Brunswick, Canadian Press
Following news that Barreau du Québec bâtonnière Lu Chan Khuong has stepped down, the Barreau says its board has unanimously elected former bâtonnière Caludia Prémont to serve a two-year term.
Prémont, a family lawyer at Brodeur Prémont Lavoie Avocats, starts her term today. She was bâtonnière of Quebec City in 2007-2008, and since June, she’s had the role of administrator for the Quebec City region on the board of directors.
Khuong made a joint statement with the Barreau today announcing she’d be stepping down. She had been suspended since July over allegations of shoplifting only weeks after taking office. She was not charged for the alleged incident.
In an announcement, the Barreau said Prémont is “an experienced administrator” who’s been involved in a number of committees, including serving as chair of the Barreau’s committee for women in the profession. A former lecturer of family law at Laval University, Prémont was also the president of the Canadian Bar Association’s family law section for Quebec, the Barreau said.
A Law Society of Upper Canada appeal panel has reduced a Toronto real estate lawyer’s disbarment to a two-year suspension in a split decision that centred on how much weight lengthy delays should be given in penalty considerations.
|A 2-3 split appeal decision noted a hearing panel did not put enough weight into the impact of a seven-year delay in the discpline process.|
In the years between 2007 and 2013, LSUC investigators made “requests that were needlessly repeated, apparently due to the succession of investigators who handled the file,” according to the majority’s finding on appeal.
In a 2-3 decision, the majority of the appeal panel found the hearing panel, in deciding to disbar Abbott for knowingly assisting in mortgage fraud based on willful blindness, failed to put sufficient weight on the “extraordinary delay that took place here.”
“While the hearing division took the law society’s delay into account, the panel did not give proper consideration to the multi-faceted impact of this delay on the public interest,” wrote Raj Anand on behalf of the majority.
“Together with other aspects of its reasons in support of revocation of the applicant’s licence, the hearing division erred in law by failing to give proper significance to the delay factor,” he added.
The hearing panel had found Abbott did not demonstrate “exceptional circumstances” that would mitigate his penalty. In its 30-page ruling, the majority suggests the exceptional circumstances requirement should be considered more broadly. The panel should have considered prejudice not just to the lawyer but the administration of self-regulation, the majority said.
Lawyer James Morton, who represented Abbott, calls the majority’s decision “remarkable.”
“I think the thing that was most striking was that they took delay standing alone and they raised it to a major consideration in terms of penalty,” Morton says. “There have been cases where delay has been taken into account but to move from revocation — which we said was not appropriate — to a suspension is a very major step.”
Morton adds if the majority’s decision stands, it will be significant “to more than just the law society. I think it has implications in other self-regulated bodies.”
In Abbott, the dissent was reluctant to disturb the hearing panel’s findings on appeal.
“We see no error in law in the hearing panel’s consideration of the issue of delay,” wrote Christopher Bredt on behalf of himself and Marion Boyd. “The panel correctly recognized that delay can be a mitigating factor in determining appropriate penalty, and considered the relevant factors. Its conclusion that the prejudice from delay was nor proper basis to turn revocation into a lengthy suspension in the circumstances of this case is reasonable.”
Assault trial to resume for Patrick Brazeau in Quebec, Canadian Press
Amber Alert continues for missing 2-year-old girl in Alberta, Canadian Press
Woman accused of using syringe in Newfoundland robbery, Canadian Press
|A web site, youbethejudge.ca, questions NDP candidate Carol Baird Ellan’s rulings while on the bench.|
“This is one of the risks of people who have held judicial office becoming involved in partisan politics,” says Emmett Macfarlane, a professor at the University of Waterloo, of the Conservative attacks on B.C. NDP candidate Carol Baird Ellan.
The comments follow the launch of a Conservative web site, youbethejudge.ca, suggesting Baird Ellan was soft on crime while on the B.C. Provincial Court bench. “For five years she was a member of the B.C. provincial court, time and time again, when serious criminals — including sex offenders — appeared before her court, she exercised her discretion to give them a lenient sentence,” the web site states.
“Now, Ellan is helping the NDP bring their soft-on-crime approach to all of Canada.”
The web site highlights three of Baird Ellan’s rulings that it deems “unfair.” In one case, it says she gave a two-year sentence to a man who sexually abused his two granddaughters for six years. In another, she sent a man to jail for one day for exposing his genitals to minors, according to the web site. Two of the cases date back to the 1990s, while the other is about five years old.
Baird Ellan has been off the bench for some time, having retired from the court in 2012. After winning the NDP nomination for Burnaby North-Seymour earlier this year, she said she wanted to try to bring about change as an elected politician and highlighted issues, such as the environment, that she feels strongly about. Macfarlane, who has written a book looking at some of the issues surrounding the judiciary, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, says the Conservatives have a right to question the rulings of judges who run for office. “It’s fair ball for the Conservatives to look at a candidate’s record,” he says, noting the situation raises questions about the line between politics and the judiciary. The perception matters, he adds, suggesting he has concerns as well about former cabinet ministers, such as Manitoba Court of Queen’s Bench Justice Vic Toews, who quickly joined the bench after leaving politics.
“I think there’s a real issue there that we have to do some hard thinking about,” says Macfarlane, adding there may be the need for rules such as a cooling-off period before those who leave the bench can enter politics.
“Perception is what kind of holds the thing together,” he says, noting that movement between the bench and politics can raise questions about a judge’s impartiality while on the court.
For her part, Baird Ellan says her party has lots to offer when it comes to dealing with crime and boosting public safety.
“The fact is the Conservatives are getting increasingly desperate with their misleading attacks," she says. "I was the first-ever female Provincial Court chief judge and when it comes to crime and policing, Canadians are looking for action but the Conservatives are just giving them a bunch of broken promises. Tom Mulcair has a plan to make streets safer by relaunching the police officer recruitment fund and put 2,500 new police officers on the streets. That’s the change Canadians want.”
Re-trial begins for Quebec man charged with killing his children, Canadian Press
Trial begins for former aide to PM, Canadian Press
As of Sept. 1, the Law Society of British Columbia’s has a new regulation that allows articling students to serve as commissioners and take affidavits in B.C. The move extends the work the LSBC started in 2011 giving students greater powers to act.
“This rule change was part of ongoing efforts by the Benchers to help make legal services more accessible and affordable for the public,” LSBC spokesman David Jordan said in an e-mail.
“In September 2011, new law society rules took effect that allow articled students to provide all legal services that a lawyer is permitted to provide, with some exceptions, with the supervising lawyer responsible for ensuring the student is competent and properly prepared.”
Jordan said the authority granted to lawyers to act as commissioners for affidavits happened to fall under the Evidence Act, and at the time that act did not extend the authority to act as a commissioner of affidavits to articled students.
“The law society requested that the act be changed, and it was. So as of Sept. 1, acting as a commissioner for affidavits is included in the services an articled student can provide.”
The new service will be a positive benefit to legal firms, said Bradley Morse, dean of Thompson Rivers University law school, especially for the smaller law firms that are common throughout B.C.
“It is often difficult to find enough work for students in one-, two-, or three-person law firms, so this is another thing that a student can now do,” he said.
At the same, he said, students often bring language skills into a law firm and that skill combined with the commissioner abilities can be valuable as the student can now assist in interpreting and dealing with documents where the client may have English as a second language.
It will also free up the time of a senior lawyer who can now delegate such duties to an articling student, said Morse.
“That’s a benefit to the public in terms of cost,” he said.
Allison Cowen, manager of student and associate programs Farris & Co., said it was another service that articling students can provide.
“When it occurs on a file, it saves having to bring someone in. And, it’s good experience for the student.”
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