Limitation period does not toll with continued online publication – Ont CA

16 Jul

On July 7th the Court of Appeal for Ontario held that a limitation period for an online publication runs from the date of discovery despite continued online publication. It explained:

The appellant seeks to rely on an incorrect interpretation of the “multiple publication rule”. That concept provides that when an alleged libel is republished across different mediums, including the Internet, those republications are treated as distinct libels. In Shtaif, the court rejected the notion that the limitation period for a suit about an online magazine article starts to run when the plaintiff becomes aware of the printed version. This was the basis for the conflicting evidence on discoverability in Shtaif. This decision does not mean that each day of online publication grounds a new cause of action. The court in Vachon v. Canada Revenue Agency, 2015 ONSC 6096 (CanLII), expressly rejected this interpretation of Shtaif. I concur with Hackland J., who said, at para. 22:

The plaintiff argues that the alleged defamation should be taken as having been republished every day [while it] remained accessible on the internet … Shtaif does not support that proposition … any limitation period based on discoverability will run from the point where the internet defamation is discovered.

The time by which the plaintiff must give notice under s. 5(1) and bring his action under s. 6 begins to run when the libel has come to the knowledge of the person defamed. There is no dispute here that, on December 5, 2013, when the appellant submitted the “factual error” message, he was aware of the facts on which his cause of action might be founded. He was aware of the statements, took exception to them as inaccurate, and demanded a correction. The clock began to run on December 5, 2013, when the appellant knew that statements were made that might be considered libellous.

John v. Ballingall, 2017 ONCA 579 (CanLII).

Man CA gives broad protection to lawyers’ reporting letters

10 Jul

On June 29th, the Court of Appeal of Manitoba held that the law has evolved such that reporting letters in real estate transactions (though often primarily summarizing facts) should be presumptively subject to solicitor-client privilege. It said, “Such correspondence is the direct result of a lawyer providing legal advice or otherwise acting as a lawyer, is descriptive of the services provided by the lawyer and arises as a result of the solicitor-client relationship.” This represents a change in Manitoba law, though is consistent with case law in other jurisdictions, including Ontario. 

R v Douglas, 2017 MBCA 63 (CanLII).

Alberta CA demands greater scrutiny of privilege claim re internal investigation

8 Jul

On July 4th the Court of Appeal of Alberta held that a chambers judge erred by accepting a claim that all documents created or collected in the course of an internal investigation were privilege without conducting a record-by-record analysis.

Legal counsel for the company initiated the investigation after a workplace fatality and directed the investigation team to segregate the investigation documents and to endorse all material as privileged and confidential. Legal counsel later swore that the dominant purpose of the investigation was the contemplation of litigation, which the chambers judge said, “invariably and logically leads to the collateral finding that, within the context of Suncor’s internal investigation that was carried out in anticipation of litigation, the information and documents created and/or collected during the internal investigation with the dominant purpose that they would assist in the contemplated litigation, are integrally covered by litigation privilege.”

The Court of Appeal held that the chambers judge erred by not conducting an analysis about the reason for the creation of each record (or bundle of records). It explained that statements may have been taken, for example, under a standing workplace protocol or that surveillance video or business records may have been collected – and that neither kind of record would be the subject of a proper privilege claim.

Alberta v Suncor Inc, 2017 ABCA 221 (CanLII).

Court affirms IPC decision on doctor payments

6 Jul

On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.

The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.

Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.

Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).

FCA speaks on impact of a consent to disclose third-party information under the ATIA

5 Jul

On June 22nd, the Federal Court of Appeal ordered Public Works and Government Services Canada to re-determine an access request because it decided that a third-party’s consent to disclose its commercial information ruled out an exemption claim. 

The request was for personnel rates offered to government by a staffing company. The company agreed to a contract clause that the Court held constituted a consent to disclose the information to the public at large. 

The Court held that PWGSC erred by treating the clause as an “outright bar” to the company’s reliance on the third-party information exemptions in the Access to Information Act. It held that PWGSC ought to have first determined if any of the third-party exemptions applied and then considered whether or not to disclose the information because of the consent [thereby exercising the discretion granted in section 20(5)]. 

The decision also includes helpful dicta on the kind of evidence that third-parties must adduce to establish probable economic harm – dicta that supports an argument that the likelihood of harm can oftentimes be inferred from rather basic facts about the competitive context. (Rate or unit price information, in particular, is associated with some rather obvious potential harms.)

Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135 (CanLII).

Equustek – Score one for rule of law and internet harm reduction

1 Jul

We all know that, on Wednesday, a 7-2 majority of the Supreme Court of Canada affirmed an order that required Google to de-index the websites of a company who was using the internet to sell the intellectual property of another company – an order against a non-party with global effect. The case – Google v Equustek –  is about rule of law in internet days and about doing what can be done about internet-based harm and not throwing hands up or letting romantic ideas about the internet and expression interfere.

After reading the case I tweeted these words and promised follow up. In keeping with my custom I’ll keep it short, in part by giving reference to an editorial by Neil Turkewitz in The Hill in which he applauds the Equustek decision. Mr. Turkewitz explains that the majority decision is a sensible response to arguments based on the “theory of cyber-libertarian ideology” that has been embraced by internet companies and freedom of expression advocates alike:

The decision in Equustek doesn’t answer all questions, and courts and policy makers globally will need to continue to closely examine the proper scope of national jurisdiction with respect to conduct that impacts multiple jurisdictions. Indeed, as I’ve written before, “I’m not unsympathetic to Google’s concerns. As a player with a global footprint, Google is legitimately concerned that it could be forced to comply with the sometimes-oppressive and often contradictory laws of countries around the world. But that doesn’t make it — or any other Internet company — unique. Global businesses have always had to comply with the rules of the territories in which they do business … There will be (and have been) cases in which taking action to comply with the laws of one country would place a company in violation of the laws of another. But principles of comity exist to address the problem of competing demands from sovereign governments.”

Mr. Turkewitz is saying that we cannot relax our laws for internet players like Google – especially given its role in an “internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content.” The majority of the Court did agree, with Justice Abella stating “The answer turns on classic interlocutory injunction jurisprudence” as if to say, “What’s the problem here?”

The only other point I’ll raise is about the dialogue between majority and minority about necessity and efficacy. The majority believed the order to be necessary and effective and the minority did not, neither side spending any time explaining the divergence. Here is the statement that encapsulates the minority view:

The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order.

Given our courts are charged with protecting rule of law and given the impossibility of totally controlling the internet, this statement is downright depressing. Very simply, we must have resort to harm reduction because it is all we will ever have. Without harm reduction, we have no rule of law.

Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (CanLII).

 

SCC makes a modest point in favouring local court’s jurisdiction over privacy claim

25 Jun

On Friday the Supreme Court of Canada issued its decision in Douez v Facebook. A majority of the Court held that a forum selection clause in Facebook’s terms of use should not be enforced.

Douez is the plaintiff in a proposed class action that alleges Facebook breached the British Columbia Privacy Act by administering its “sponsored stories” advertising program – a program by which Facebook used the name and picture of Facebook members (allegedly without their knowledge) to advertise companies and products to other members on the site and externally. Facebook sought to stay the action based on a clause in its terms of use that stipulated disputes would be resolved in California.

A four judge majority of the Court held that the clause should not be enforced. Three judges in this majority (Karakatsanis, Wagner and Gascon JJ) held that the clause was valid according to contract law principles but, as a matter of policy, should not be enforced. They explained that the two dispostive factors were (1) the “gross inequality in bargaining power” between Douez (a consumer of online services) and Facebook and (2) the interest in local adjudication of privacy disputes – disputes that rest on “quasi-constitutional” rights. Justice Abella joined this group against enforcement of the clause, but held that the clause should not be enforced because it was unconscionable – issuing a broader critique of the means of contracting used by Facebook and most other online service providers.

While the Court did not enforce the contract, the plurality’s view is balanced – making a narrow point about where these types of privacy claims should be heard rather than a more disruptive and general point about the enforceability of online service terms of use.

Douez v. Facebook, Inc., 2017 SCC 33 (CanLII).