Practising outside the technology box

Lisa R. Lifshitz
Technology lawyers often think of themselves as area experts, with a deep appreciation and understanding of the specific intricacies of their craft and its sub-specialties, which may include outsourcing, e/m commerce, licensing, CASL-compliance, cloud computing, etc. However, good technology lawyers can sometimes add value to their clients simply by thinking outside the technology box by raising practical issues that go beyond our immediate practice areas. The following discussion points may be worthy of a few minutes of time with your clients.

1)    Accessibility for Ontarians with Disabilities Act compliance: Are your clients fully aware of their AODA responsibilities, including technology-related ones? As many of you probably already know, in 2005 the Ontario government enacted the Accessibility for Ontarians with Disabilities Act, which set out a clear goal and timeframe to make Ontario accessible by 2025. Various requirements under this Act are now being phased in and Ontario currently has accessibility standards in five areas: 1) customer service; 2) employment; 3) information and communication; 4) transportation; and 5) design of public spaces. These requirements apply over myriad industries and cannot be ignored. For example, private sector or non-profit organizations with more than 20 employees or more were obligated to file their accessibility compliance reports by Dec. 31, 2014. The Accessibility Standard for Information and Communications, designed for Ontario businesses and organizations to make their information accessible for people with disabilities, requires organizations with 50 or more employees to make their web sites and web content accessible according to the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0. Any organization that meets this threshold and that undertakes web site development must now keep these requirements in mind and add them to their RFP documentation or other contract documents to ensure that their vendors meet these requirements as failure to meet AODA requirements can ultimately result in costly penalties.  

For example, it is an offence to fail to comply with an order made under the AODA, block or fail to co-operate with an inspection, intimidate, coerce, penalize, or discriminate against someone for seeking enforcement of the AODA, co-operating with an inspection or providing information as part of an inspection. Fines for persons or organizations convicted of an offence under the AODA include up to $50,000 for each and every day or part day that an offence happens for a corporation, up to $100,000 for each and every day or part day that an offence happens. All directors and/or officers of an Ontario corporation must take all reasonable care to prevent the corporation from committing an offence and the failure to do so is an offence. The directors and/or officers of a corporation are liable to a fine of up to $50,000 for each and every day or part day that the offence happens.  Given these potential penalties, technology lawyers should ascertain that their clients (particularly smaller ones with less robust human resource departments) are at least minimally aware of their AODA compliance requirements so that they can take any required steps to pro-actively ameliorate non-compliance before the proverbial knock on the door.

2) The duty of good faith:  It is worth reminding Canadian clients that under a recent case of the Supreme Court of Canada, Bhasin v. Hrynew, the courts recognized the existence of a duty of honest contractual performance. In other words, parties to a contract must act honestly in the performance of their contractual obligations, not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. This might sound simple, but could be a timely reminder for clients that are looking to cut corners or “break a few eggs” in their haste to achieve the best financial or other results for themselves.  Interestingly, the Supreme Court determined that the duty of honest contractual performance to be a general doctrine of contract law that imposes a contractual duty, regardless of the parties’ intentions. Significantly, the court also found that any alteration to this duty of “honest performance” has to be made by express terms in the contract; for example, generically-drafted “entire agreement clauses” do not apparently satisfy this requirement. (For a more detailed analysis of this case, please read the article written by my colleague, Marco P. Falco.

3) Insurance: Does your client have appropriate and sufficient coverage in place, given the nature of their business? Emerging companies sometimes overlook the value of obtaining Errors & Omissions in appropriate jurisdictions and of course, Directors & Officers insurance is critical at all stages of the corporate life-cycle. As well, many companies are not aware of gaps in “traditional” insurance products that more specialty liability insurance products (i.e. media and Internet liability, cyber liability) are intended to catch, including breach of fiduciary duty to protect privacy of client information, content exposure (defamation, intellectual property), damages caused by virus, third party financial losses due to system downtime, costs associated with data breach notification following a cyber attack/hack, etc. The obtainment of cyber-liability insurance may also prove useful for certain clients if they have been compelled to give robust indemnities in these areas to third parties in their customer agreements.

4) Winter cleanups: After the frenzy of year-end deals has passed, the new year is a great time to speak to clients about remedying any gaps in their standard customer documentation (including incorporating any key “lessons learned” during the course of negotiating these contracts during the past year), updating privacy policies to account for changes in practices or new or changed uses of personal information, and otherwise taking stock to determine whether there any corporate, employment, or regulatory issues that should be addressed.  

For example, how is that CASL compliance policy coming along? When was the last time you looked at your standard employment policies to ensure that they properly address the fact that all of your employees are using their own iPhones at work and are using them to interact with the company’s e-mail systems? Does the company have a technical way to erase their confidential information from their employees’ own devices? Do your standard employment and consultant agreements contain sufficient IT ownership provisions and detailed descriptions of what should happen following termination to ensure an orderly exit, taking into account increasing concerns about the protection of a company’s intellectual property and confidential information? Taking it back a step, has everyone that is presently working (or has worked) for your company actually signed such employment/consulting agreements? And yes, I have to throw in a few technology ones: Did your organization recently use third party service providers to help you manage your IT systems and third party software and did you bother checking to see if that practice breaches any of your key software licences? Is everyone in the office using authorized enterprise software or did someone accidently download the student version of a product and is still using it? Now is the time to clean up those legal skeletons in the closet before they come back to haunt you.

While I don’t plan to try to replace my firm’s employment or insurance lawyers, I do not believe technology lawyers can take refuge in narrow silos in today’s fast paced legal environments. The more meaningful way to practice is to ensure that we add value to our clients through judicious “issue spotting” even if it means thinking a bit outside our established practice areas and “practising outside the technology box.”

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