A Toronto, Ont. woman will appear before the British Columbia Court of Appeal Feb. 14 in a long-running legal battle to overturn a law that stops her from accessing information about her biological father.

Olivia Pratten, a journalist in her 20s, began her legal battle with the B.C. government more than a decade ago after requests to preserve her donor records indefinitely were denied by the now-retired fertility specialist her biological mother saw.

Although she knows her biological father’s blood type, build, and status as a medical student at the time, according to court documents in the case Pratten still does not know her medical history or who exactly her biological father is.

“Like many donor offspring, Ms. Pratten knows almost nothing about the man who provided one-half of her genetic makeup,” wrote B.C. Supreme Court Justice Elaine Adair in Pratten v. British Columbia.

“She has long felt that a part of her identity is missing. She risks inadvertently forming a romantic relationship with a half-sibling. She worries her health, and the health of her future children, could be comprised by the lack of information.”

In B.C., sperm banks are only required to keep sperm donor records for six years, after which they can be shredded or incinerated.

Vancouver, B.C., fertility specialist Gerald Korn, who is now retired but treated Pratten’s biological mother, confirmed Pratten’s donor records had been destroyed in accordance with the practice, court documents show.

Currently, there are no North American jurisdictions that have legislation that forces donors to be identified, unlike in much of Europe, including Sweden.

But, in May 2011, the province came close to changing that, with Adair suspending her decision in favour of Pratten for 15 months in order to allow the B.C. legislature time to redraft the Adoption Act’s compliance with the Charter of Rights.

But, lawyers for the B.C. government are seeking to overturn Adair’s decision instead. This week, they will argue the anonymous sperm-donor law is constitutional. The appeal is scheduled for Feb. 14 and 15.

Adair had ruled previously that the law was unfair because it stopped the offspring of donors, like Pratten, from finding out who their parents are, but allowed adopted children to find out information about their biological parents.

“In my view, the evidence in this case provides strong support for the conclusion that the circumstances of adoptees and those of donor offspring with regard to the need to know and have connection with one’s roots, are closely comparable,” wrote Adair in Pratten.

Still, Tuesday’s appeal isn’t the first time such comparisons have been drawn.

The Supreme Court of Canada ruled in 2010 that federal laws on assisted human reproduction are outside Ottawa’s power to regulate under criminal law.

Although with a thin majority in Attorney General of Canada v. Attorney General of Quebec, the court ultimately sided with Quebec, which has passed extensive regulations on the matter. Those include allowing provinces to control the licensing of doctors and clinics and regulations regarding how they deal with donors and potential parents, eggs, sperm, and embryos, including whether or not they are used for research purposes like genetic therapy.

Still some reproductive technology specialists warn such advances could lead to significant physiological consequences in the meantime, particularly in cases like Pratten’s.

“While our society is becoming increasingly acclimated to the medical advances that have afforded new forms of conception with the aid of reproductive technology, medical studies are simultaneously discovering more and more ways that our physical and mental health are affected by heredity and genetic loadings,” said reproductive technology specialist Dr. Diane Ehrensaft in Pratten.

“For donor offspring with anonymous donors, to be denied access to half their genetic history can not only create medical risk but be a trigger for anxiety and depression, as the offspring suffer duly from barred access to vital medical information and from the awareness that someone is intentionally blocking them from receiving this information, a blockage that could have negative if not life threatening consequences.”

A 27-year-old Canadian man is seriously injured in a workplace accident that has left him unable to sit for more than 15 minutes a day, ended his social life, and left him without a job.

Adam Wagman (photo: Kendyl Sebesta)

The defence counsel in the case brings a motion forward requesting disclosure of all Facebook photos, videos, wall postings, and other relevant information to the man’s personal injury case, as well as access to his hard drive.

Because the injured plaintiff is claiming nearly $6 million in damages, defence counsel argues the motion is necessary to establish the extent to which the man is actually injured.

Should the motion be granted?

According to Superior Court Master Ronna Brott the answer could very well be yes.

Making the comments at an Ontario Bar Association Institute insurance law debate between Lawson LLP lawyer Barry Marta and Howie Sacks & Henry LLP lawyer Adam Wagman today, Brott handed down her ruling in the fictional case, saying while she would order the production of the Facebook profile files, she would not do the same for the hard drive.

“Many people I’m sure would be surprised to know that, where the information requested in the motion is relevant to the case, it may very well be granted without any infringement into the plaintiff’s privacy, particularly where that Facebook profile was publicly provided,” says Brott. “In this case, I would say Facebook profiles are producible documents and they must be preserved.”

In the mock hearing, Marta argued because the plaintiff had control of his Facebook profile and because the information contained in his profile would be relevant to his personal injury claim and corresponding disability claim, his motion for disclosure should be granted.

However, Wagman argued the request was no different that asking to snoop through the plaintiff’s home and rifle through his personal things, saying casting a wide net for the plaintiff’s entire personal information found in his Facebook profile would be nothing more than a “phishing scheme.”

Brott ultimately agreed with Wagman, adding plaintiff’s counsel must take care to ensure Facebook searches are done soon and quickly to ensure the client understands what can and cannot be produced and disclosed.

To help lawyers with this task, Wagman offered the following advice to plaintiff’s lawyers today at the OBA’s annual Institute held at the Westin Harbour Castle in Toronto:

1.    Explain to clients what they can and can’t do on Facebook, and more importantly what they should and shouldn’t be doing within the context of their case, particularly in terms of what personal information may and may not be produced in court.

2.    Tell clients to set every aspect of their Facebook profile to the highest possible privacy settings, and make sure they actually do so.

3.    Produce something in your documents that shows the master you have clearly made an effort to identify what is and is not relevant in the case when it comes to the client’s Facebook profile. If nothing is relevant, still produce at least something to prevent eyebrows from being raised.

4.    Keep pushing the issue of privacy and phishing in your case and really work to push back against the idea that your client’s profile should be public.

“Make sure you do your job and really investigate every aspect of your plaintiff’s digital profile and make sure you are educated about what could be producible in court,” says Wagman. “Not only is it smart, but you have an obligation to your client to do so.”

Marta added defence counsel can also take similar steps.

“Get as much information about the plaintiff as you can and make sure it is extremely detailed,” says Marta. “Get a copy of Facebook’s user agreement, and most of all, make sure you have enough evidence. The bottom line is you need to do your due diligence.”

Ontario Superior Court Justice George Strathy has sent a large class action lawsuit to trial after a charitable tax donation “scheme” cost a retired Ontario staff sergeant more than $20,000 in reassessed taxes and interest.

Michael Cannon, the representative plaintiff in Cannon v. Funds for Canada Foundation, brought the motion for certification of the action as a class proceeding in August 2011 after nearly 10,000 Canadians, including himself, contributed $144 million in total to the Donations for Canada Gift Program between 2005 and 2009.

Law firms would be well advised to carefully consider the role which their lawyers play in the marketing of their clients’ products, says Sam Marr.

The brainchild of financial software businessman Edward Furtak, the gift program enlisted a $2,500 donation from donors like Cannon, who would then become part of a private charitable trust he created in Bermuda. This would then lead to acquired units of the trust for $7,500, ultimately resulting in $10,000 remaining in the possession of a charity for a moment before donors received a tax receipt for $2,500 in cash and a $7,5000 donation-in-kind for the trust units.

When the Canada Revenue Agency reassessed the program donations in 2009, the donors were left with a hefty bill ordering them to pay the full deduction plus interest for expecting to receive financial gains from the tax credit.

“When Michael Cannon heard about the Donations for Canada Gift Program — an opportunity to obtain a $10,000 charitable tax credit in return for a $2,500 donation — he thought it was ‘too good to be true,’” writes Strathy in Cannon. “It was. A few years later, his tax returns were reassessed by Canada Revenue Agency and he had to repay his deductions, with interest. The only thing he received for his ‘donation’ was a tax bill.”

Other donors, including teachers, lawyers, and nurses, were required to repay the full deduction plus interest as well, with one person donating $4 million, according to court documents provided in Cannon.

Additional defendants in the case also included a sizable list of Furtak’s corporations and private trusts, directors and trustees of the Funds for Canada Foundation, and Patterson Palmer Law.

Strathy also pointed out the gift program likely had an extensive sales team and written legal opinions in Cannon, as well as a large network of companies, trusts, and significant cash flow provided by Furtak’s trust.

The program also involved legitimate charities, including Biathlon Canada, the Canadian Lacrosse Association and the New Brunswick Foundation for the Arts.

The charities are not facing allegations of wrongdoing in court.

Ultimately, the CRA revoked the charitable status of the program in 2009, declaring it a “scheme.” An audit by the agency revealed it had issued $176.5 million in receipts received through a tax shelter at that time.

“This was not just a victory on procedural grounds authorizing the certification of the class action,” says Samuel Marr, lead counsel for Cannon and partner at Landy Marr Kats LLP. “Faced with two defendants’ motions for summary judgment, Justice Strathy took a hard look at the merits of the case, and determined that it was a meritorious case that should proceed to trial.”

The result, Marr adds, will likely permeate the legal community for some time.

“Behaviour modification is an important goal of the class proceedings legislation,” says Marr. “Law firms, for the protection of themselves and the public would, in my view, be well advised to carefully consider the role which their lawyers play in the marketing of their clients’ products.”

A trial date has not yet been set.

Ontario’s Information and Privacy Commissioner says she has “serious concerns” about proposed federal “lawful access” legislation that would expand police surveillance powers and increase access to private information.

'We’re only seeing the tip of the iceberg with what’s to come,' says Ann Cavoukian.

In a public symposium held at Toronto’s MaRS Discovery District auditorium today, Ann Cavoukian repeated her concerns that lawful access legislation in its current form would raise “serious privacy implications” if not amended before its possible re-introduction to Parliament in the next month.

Previous lawful access bills were introduced during Parliament’s last session but died when the election was called, creating a “looming system” of underlying surveillance that should “concern us all,” Cavoukian warned during the symposium.

“We’re only seeing the tip of the iceberg with what’s to come,” said Cavoukian. “The goal is to prevent the harm before it actually happens and show that, in my opinion, you can have both privacy and connectivity.”

To do that, Cavoukian adds, current lawful access legislation must be amended to ensure police accountability is maintained when accessing private information for investigative purposes.

“The greatest threat to privacy is coming from within, from our federal government,” said Cavoukian. “What concerns me most is the data linkages that are created. Most people don’t realize those numbers, that data, is connected to people, they aren’t just ones and zeros, they connect to people with a keystroke, and it paints a very detailed picture about that individual, more than most understand.”

In addition to expanding police surveillance powers to allow access to private information without a warrant, the previous lawful access bills, if they were passed, would allow law enforcement agencies to obtain warrants to track the locations of individuals and their transactions, compel other parties to preserve electronic evidence, and require internet providers and other makers of technology to provide “back doors” to police seeking communication information; points that bother Cavoukian.

“My specific objection to the legislation is the lack of court authorization for access to private information,” she added. “The warrant is a critical and integral part of the process. It ensures accountability and oversight that is so critical to our democracy and freedom as a society.”

Since discussions of lawful access legislation began more than a decade ago, several privacy and consumer advocates, opposition politicians, and Canada’s privacy commissioner have spoken out against the legislative proposals, a significant point in future considerations for the legislation’s possible re-introduction in the upcoming month, Cavoukian added.

“Remember privacy is not only an individual right,” she said. “It’s a societal right. It’s absolutely integral to our rights, to our society, and to our democracy. I really want to shout from the rooftops about it. Data linkages create such a detailed picture of an individual and I would encourage everyone to stand up and fight to protect our rights and our privacy.”

Cavoukian said while she doesn’t expect lawful access legislation to be thrown out entirely in the future, she does hope amendments will be made to ensure court oversight and privacy is fully maintained.

“We have to work together to ensure our democratic freedoms are preserved, and when lawful access legislation is re-introduced, likely in February; I hope the legislation will be amended to ensure warrants are added,” said Cavoukian. “It may be a long shot, but it’s so important, and I hope more people tackle this issue head on.”

A controversial loophole in the Occupational Therapy Act has allowed the Ontario Superior Court to apply discretionary jurisdiction in the assessment of future care costs for the first time striking down a London, Ont. man’s argument for a stricter interpretation of the act.

Randall Scott Cook was ordered to undergo an in-home occupational therapy assessment within the next two weeks by Justice Dougald McDermid Jan. 16.

Cook had previously sought a “substantial” amount in future care costs in 2010, according to Cook v. Glanville and The City of London.

He also argued that an order by the City of London requiring him to complete an in-home therapy assessment to determine the future care costs he originally sought wasn’t necessary.

Cook also argued the city’s order couldn’t be granted by the Superior Court solely on the issue of trial fairness, particularly when there was no evidence that the assessment was necessary for the diagnosis of a health practitioner in determining his physical limitations. He also produced an affidavit from Dr. Michael Devlin, a Toronto doctor who specializes in physical rehabilitation, to help determine future care costs.

But, in an unusual move, McDermid ruled the assessment was in fact necessary, writing in Cook, that it was necessary “not for . . . any diagnosis that he [Devlin] might make but that taken with his diagnosis it is required to permit the preparation of a future care cost report. . . .

McDermid cited Superior Court Justice Thomas Granger’s comments from the 2010 Vanderidder v. Aviva Canada Inc. decision: “The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and r. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.”

But McDermid went on to note that because no decision existed from the Court of Appeal regarding non-medical expert assessment in cases specifically involving future care costs, he was required to refer to the Divisional Court for the first time, which leaned toward the latter stream.

“In the absence of any decision from the Court of Appeal, I am persuaded to follow the decision of the Divisional Court in Desbiens [v. Mordini] as enunciating the proper approach to this issue,” wrote McDermid.

As a result, the judge ruled Cook must attend the in-home assessment within the next two weeks, with submissions on costs to be filed in the next 30 days.

If the matter goes to trial, the health practitioner who conducted the assessment could be called as an expert witness, according to Cook.

The Law Society of Upper Canada has started disciplinary proceedings against John Nunziata, alleging the former Liberal MP and Toronto mayoral candidate lied under oath.

John Nunziata has been accused by the LSUC of conduct unbecoming a lawyer.

Trouble began for Nunziata in Oct. 2008 when he was arrested by Toronto police and charged with assault after he kicked his ex-wife’s boyfriend, Murray Milthorpe, during a hockey game. Milthorpe had apparently said something that upset Nunziata’s then 14-year-old daughter, prompting the boot, the former Liberal MP told the Ontario Court of Justice during his 2010 trial.

Nunziata later admitted to the assault before Ontario Court Justice Fern Weinper, and was sentenced to a year’s probation.

But, in a notice of application filed Jan. 3, the law society alleges Nunziata lied under oath during a Nov. 6, 2008 pretrial hearing before Justice of the Peace Rudy Skjarum, where Nunziata testified that he did not kick Milthorpe.

Nunziata admitted under oath during his trial in May that he did kick the man, according to the notice of application.

The law society alleges Nunziata contravened s. 33 of the Law Society Act that by engaging in conduct “unbecoming a licensee.” If convicted, he could face disbarment.

Law society spokesperson Susan Tonkin confirmed Wednesday a proceeding management conference is currently scheduled for Nunziata 9 a.m. Jan. 23 at the Osgoode Hall.

If Nunziata or his representative doesn’t attend, the LSUC panelist conducting the conference has the option of carrying on the proceedings in their absence, according to the notice.

Nunziata served as MP for York South-Weston from 1984 to 2000. He also ran against David Miller for mayor of Toronto in 2003, and is currently a non-practicing lawyer living in Toronto.

This is the first disciplinary proceeding against him, according to the regulator’s web site.

A Windsor, Ont., real estate lawyer convicted of tax evasion last year could be one step closer to disbarment after appearing before a Law Society of Upper Canada committee Jan. 9. Kevin Fanick pleaded guilty to more than $23,000 in evaded taxes before Ontario Court Justice Mitch Hoffman last June. He was fined $23,542 — the amount of taxes he owed through either GST rebates or taxes in 2004, 2005 and 2006, according to a Canada Revenue Agency report.

Seven months later, Fanick’s licence was suspended indefinitely by the LSUC. According to a notice of application filed by the LSUC in December, he was charged with professional misconduct after the regulatory agency learned of his tax evasion conviction.

Fanick is set to attend an LSUC practice management conference Monday, said LSUC spokesperson Susan Tonkin. A hearing date will be set and any adjournments could be filed with the LSUC practice management committee during that time.

At the hearing, Fanick will face allegations by the LSUC that he violated the Law Society Act by failing to report to the LSUC that he’d been charged with 17 offences under the Income Tax Act and the Excise Tax Act in Feb. 2009, and an additional five offences under the same acts in June of last year.

The law society also contends Fanick failed to serve the Royal Bank of Canada and RTC, his clients, by not communicating with them regarding several issues he was retained to litigate.

In the notice, the LSUC also alleges Fanick failed to respond to “at least 20 letters, six emails, seven faxes, and four voice messages” from the regulatory regarding two complaints by his client, Royal Bank of Canada, one complaint by RTC, one complaint by client KS, and three complaints by the LSUC between April 2010 and May 2011.

Fanick will also face allegations that he failed to produce books and records requested by the LSUC in five letters between January 2011 and May 2011 during the hearing. The date of that hearing will be set during the LSUC proceedings management conference Monday. The hearing will determine whether Fanick engaged in professional misconduct and “conduct unbecoming of a licensee.”

Update Jan. 9 with proper name of LSUC proceedings.

LawPRO has issued an alert to litigators advising them of a potential “tsunami” in administrative dismissals of undefended actions next month, saying failing to take “fresh steps” in stagnant cases by Jan. 1, 2012 (that’s MONDAY!) could spell trouble for litigators in the in the New Year.

Under Rule 48.14 of the Rules of Civil Procedure, unless a court orders otherwise, defended actions that aren’t placed on a trial list or terminated within two years after the first defence is filed, will be dismissed for delay by a registrar of the court starting Jan. 1, unless within 90 days of an issued notice, the action is set for trial or terminated. Actions that are placed on trial lists, but were subsequently struck off will also be dismissed, unless the action is put back on the trial list or terminated within 90 days of the notice, according to the rule.

A registrar can also dismiss actions that are abandoned if more than 180 days have passed since the date the originating process was issued or if the action remains largely undefended, according to Rule 48.15.

“As we have done in the past in similar circumstances, we sent the alert in an effort to prevent claims,” said Dan Pinnington, director of practicePRO. “Fifteen or so lawyers called LawPRO further to our blast. A few were perhaps facing dismissals but the majority were seeking direction on what a fresh step on the matter is.”

According to Pinnington, however, Rule 48 isn’t clear on exactly what those fresh steps may be, leaving litigators to wonder just exactly how the rule will effect them in the new year.

“Unfortunately the rule is not clear on this,” said Pinnington. “We won’t know the impact until we see actual claims reported to us and the interpretation of the rule will impact on how those claims are resolved.”

Pinnington added the Ontario Trial Lawyers Association has since lobbied for a notice to lawyers before a dismissal occurs.

Under Rule 48.14 and Rule 48.15, litigators are not currently given notice before a dismissal.

“If you read the whole rule, it appears that the deemed dismissals only applies to undefended actions, thus the number of matters impacted could be somewhat fewer,” Pinnington adds. “Time will tell.”

In the meantime, the legal profession has sent out warnings about the rules throughout the last several months, with Pinnington noting several county law associations had sent out notices similar to LawPRO earlier in the month and the Ontario Bar Association recently hosted a weeklong discussion about the topic in its LinkedIn group.