News

The Department of Finance Canada has launched a wide-ranging consultation, seeking input on a range of topics that will be of interest to technology lawyers and their clients.

For more details, please click here

Materials gathered from internet improperly admitted in contested family law case

In J.N. v. C.G., the Ontario Court of Appeal heard an appeal from a lower court judge’s decision awarding the mother of two children decision-making authority regarding whether the children should receive the COVID vaccine. The father (from whom the mother was divorced), who wanted the children vaccinated, had applied for decision-making authority but was opposed by the mother, who did not want the children vaccinated. In support of her argument the mother filed numerous unsworn “reports,” excerpts from publications that purported to be medical journals, and opinions given by people whose professional qualifications (if any) were not established or verifiable. The trial judge relied on these as essentially providing expert evidence, at least to the effect that the efficacy and safety of the COVID vaccines was not established and that suggestions that they were had been authoritatively disputed. On the father’s appeal, the Court of Appeal ruled that the judge had erred in so doing, in reasons that are worth quoting at some length:

For more details, please click here

Decision, in a de novo hearing, turned on lack of evidence related to “inadequate consent”

On April 13, 2023, the Federal Court of Canada released an important decision as part of the still ongoing saga related to the “Cambridge Analytica” incident involving Facebook. The decision by Justice Manson follows the Privacy Commissioner of Canada’s application for a determination that Facebook had violated the Personal Information Protection and Electronic Documents Act. 

For more details, please click here

Motion judge rules that hyperlink to list of plaintiffs sufficiently connects defamatory statements to a selection of the plaintiffs

In Environmental Defence Canada Inc. et al v. Kenney et al, Justice Avril Inglis of the Alberta Court of Kings Bench heard a motion for summary judgment in a defamation action brought by a number of environmental organizations against former Alberta Premier Jason Kenney and the Provincial Crown. The plaintiff organizations were named in the Report of the Public Inquiry into Anti-Alberta Energy Campaigns as having been “participants in anti-Alberta energy campaigns.” Facebook and Twitter posts by Kenney spoke to “foreign-funded misinformation campaigns” that caused hardship for Alberta energy workers; these posts connected to the Inquiry’s webpage, which made similarly defamatory statements, and in turn linked to a document called “Key Findings” (of the Inquiry Report) that listed the plaintiff organizations, among others, as having been involved in a “campaign of misinformation” etc. (and also linked to the Inquiry Report itself).

For more details, please click here

Facial recognition technology is not “appropriate” in the retail context

The Information and Privacy Commissioner has issued an investigation report under the Personal Information Protection Act of B.C. that essentially shuts down the widespread use of biometric facial recognition in the retail context, at least for identifying “persons of interest.” 

The Commissioner undertook this investigation on his own accord after seeking information on how prevalent the use of biometrics is in the retail sector. The OIPC surveyed 13 of the province’s largest retailers on their use of facial recognition technology, or “FRT”; 12 responded that they did not use FRT. The remaining retailer, Canadian Tire Corporation, requested that the OIPC contact their 55 independently owned Associate Dealer stores in the province. Twelve of the independent dealers reported using FRT. The Commissioner then commenced an investigation under s. 36(1)(a) of the Personal Information Protection Act of four of the locations, scattered across the province. 

For more details, please click here

Sign up by August 1 to save 50% off 2023 membership fees!

Just some of the benefits of membership:

• Discounts on CAN-TECH conferences, accredited for CPD
• Free attendance to most CAN-TECH roundtables, accredited for CPD
• Access to members-only content and resources that include articles, conference content and video
• Networking opportunities with members of the IT bar nationwide
• Member directory
• Volunteer opportunities with our active committees

CAN-TECH provides you with opportunities to sharpen your practice, network and grow professionally, as well as access exclusive content to stay on top of the latest developments in national and global technology law.

CAN-TECH is the only national legal association that is dedicated to all aspects of technology law and includes members from all areas of practice – large firms, small and solo practices, corporate counsel, government, academia and students.

Sign up by August 1 to take advantage of 50% membership fees for the remainder of 2023!

Enroll now to take advantage of your best opportunity to join an enthusiastic and specialized community of technology law professionals.

Click Here to Enroll

If you were unable to attend the CAN-TECH Law 2023 Spring Conference, we have great news! The conference recordings are now available for purchase, offering valuable insights and discussions from industry experts.

This was a first-of-its-kind CAN-TECH conference. The event was held from coast-to-coast – starting in Vancouver and ending in Halifax – with five offices (Vancouver, Regina, Toronto, Montreal, and Halifax) each hosting one live panel and participating in the other panels via Zoom. This let the attendees participate in a cost-effective and time-efficient manner, while still getting all the benefits of the breadth and depth of experience that CAN-TECH’s members have to offer.

Highlights include a conversation about limitations of liability and indemnity between Dana Siddle, a partner at McCarthy Tetrault LLP, and Rahim Esmail, Senior Counsel at TELUS, before moving on to Regina where Joseph Gill, a partner at McKercher LLP and Azure-Dee Ashton, Counsel at Saskatchewan Power Corporation discussed service levels.

• "The conference provided a great overview of key concepts and takeaways."

Andrew Alleyne, partner at Fasken Martineau DuMoulin LLP, Mark Bowman, Senior Legal Counsel at Interac Corp. and Justice Agyemang, Senior Legal Counsel, HSBC Bank Canada broke down clauses that are often overlooked, and by colour-coding parts of clauses that are pertinent to the buy- and sell-side the attendees developed a better understanding of the positions they should be advancing on behalf of their clients. 

• "This is the exact kind of conference that newer lawyers need. They really got the nuts and bolts of tech contracts. I think it should be a staple..."

Montreal had Eugen Miscoi, associate at McCarthy Tetrault LLP, and Patrice Labonte, General Counsel North America, Valtech share their knowledge about privacy and cybersecurity issues in a contract. This panel dissected LinkedIn’s Data Processing Agreement, a DPA that probably has the biggest impact on the attendees.

• "The analysis and discussion of different contractual clauses. This provided a great overview of vendor/customer positions and expectations, and went further than just legal theory/case law. Practitioners want this kind of practical knowledge."

Finally, Jennifer Davidson, CAN-TECH’s president and partner at Deeth Williams Wall LLP, moderated a panel of David Fraser, a partner at McInnes Cooper, and Harj Gill, who most recently was Corporate Counsel for NTT Data Services, in an open and honest conversation about what lawyers new to the profession can do to ensure their success, the importance of mentorship, and how we can learn from our mistakes. (This was not recorded in order to allow for open and honest dialogue from our panel and audience).

• "Well done! Superb all around."

The hope was that the attendees would leave the conference feeling more confident and comfortable in their understanding of technology transactions, the contracts, and the issues that often come up in them. Based on the expertise the panelists shared, and the accompanying materials, mission accomplished.

Fees:
Students: $40 plus tax

Members: $100 plus tax

Non-Members: $125 plus tax

In British Columbia, Ontario, and Saskatchewan, the conference offers 4-hours of substantive CPD, while Nova Scotia and Quebec are encouraged to incorporate this learning activity into their mandatory CPD plans.

To learn more about our speakers, Click Here.

Access the Recordings Here

Jennifer Davidson, President of CAN-TECH Law and Partner at DWW has been nominated in the Business category for 2023.

Jennifer Davidson is a partner at Deeth Williams Wall LLP in Toronto, practicing in Technology and Cybersecurity law. Jennifer’s technology practice encompasses a wide range of technology-related transactional matters involving emerging tech, while Jennifer’s cybersecurity practice focuses on all aspects of the digital risk lifecycle, including critical incident response.

Jennifer’s the President of the Canadian Technology Law Association, past Chair of the OBA’s IP & IT Law Section and a faculty member at Osgoode Hall Law School’s Drafting & Negotiation IT Agreements.

Jennifer was recently recognized with the Precedent Setter Award and listed in Best LawyersTM Canada: Ones to Watch.

Arun Krishnamurti, Vice President of CAN-TECH Law and Senior Counsel with Google has been nominated in the In House category for 2023.

I’m an experienced technology lawyer with a solid record of giving practical, business-oriented legal advice. I love tackling complicated legal and regulatory issues and building consensus toward an approach. I have a tough time leaving a problem unsolved once I’ve found it.

After having worked at a major law firm, and now here at Google Canada, I’m great at analyzing and responding to complex (and frequently cross-border) legal issues, including product launches, cloud services and outsourcing agreements, commercial transactions, consumer protection, privacy and lots more. In recognition for my work, I was previously named to Lexpert Rising Stars: Leading Lawyers Under 40.

I’m also an active board member; I’m a VP of CanTech, a Director at the South Asian Bar Association of Toronto, and I am a co-chair of the Corporate Counsel Section of SABA North America. It’s important to me to remain active involved in my communities, with a particular focus on supporting diversity and equity seeking groups in whatever ways I can.

Congratulations Jennifer and Arun!

SPECIAL OFFER FOR STUDENTS: Sign up to attend and get 2023 membership, all for one low price!

CAN-TECH Law is extending a special invitation to students to save on conference and student membership fees for 2023. Students can attend the sessions and get membership for $100. Read more about all the benefits of CAN-TECH membership below. 

This year, CAN-TECH is taking a fresh approach to Spring Conference. Remote work has left knowledge gaps in practice fundamentals necessary for success as a junior practitioner in Technology Law. This program will focus on closing those gaps by providing core literacy on key transactional issues for technology lawyers.

We will be hosting a one-day program with hybrid in-person and webcast sessions from five satellite locations across the country. Join us at one of our five locations to get insight beyond the classroom from our panels of leaders in the technology law field while getting to know your local colleagues.

Please note that there will not be an option to attend this conference remotely.

Conference Co-chairs:

• Danielle Graff, Partner, MLT Aikens LLP
• Jacob Kojfman, Senior Legal Counsel, The Co-operators Group Ltd.

This program contains 1 hour(s) and 0 minutes of Professionalism Content.

This program will provide 4 substantive hours of CPD.

Vancouver: 9 am to 2 pm PT
Hosted by McCarthy Tétrault LLP (MAP)

Damage and Recovery: Liability and Indemnities
We are starting the day with what are often the last clauses to be negotiated: limitations of liability and indemnities. Our panel has spent years building, buying and selling software, services and software-as-a-service. They will share their experience, insights and interests when it comes to negotiating limitations of liability and indemnities. Topics will include:

• What is “market” on limitations of liability (lump sum? fee multiples?)
• Understanding what risks you are trying to allocate;
• Alternatives to contractual risk allocation, such as insurance; and
• Explaining all of this “lawyer stuff” to business teams.

Moderator: Jacob Kojfman, Senior Legal Counsel, The Co-operators Group Limited
Speakers: 

• Rahim Esmail, Senior Counsel, Legal Services, TELUS
• Dana Siddle, Partner, McCarthy Tétrault LLP

Regina: 11 am to 4 pm CT
Hosted by MLT Aikins LLP (MAP)

You Can’t always Get What You Want: Service Levels
Moderator: Danielle Graff, Partner, MLT Aikins LLP

Toronto: 12 to 5 pm ET
Hosted by Fasken (MAP)

Everything is Awesome: Don’t Sleep on Everything Other Than Liability/SLAs and Cyber
This session will provide an overview of three areas of a technology contract that are often overlooked, but remain essential to setting out clear expectations between the vendor and customer (i.e., termination, transition of services, and governance). Attendees can expect to come away with an understanding of the following:

• Key considerations for termination provisions;
• Language essential to transition of services provisions upon termination, including portability of data and unique considerations for certain types of agreements, such as transition-out provisions in "x-as-a-service" agreements; and
• The importance of governance, including the interplay between governance and acceptance criteria and assessing whether there is capacity to meet governance processes.

Moderator: Andrew Alleyne, Partner, Fasken
Speakers:

• Mark Bowman, Senior Legal Counsel, Interac Corp.
• Justice Agyemang, Senior Legal Counsel, HSBC Bank Canada

Montreal: 12 to 5 pm ET
Hosted by McCarthy Tétrault LLP (MAP)

Every Breath You Take: Privacy and Cybersecurity
Fittingly coming from Quebec – the home of Canada’s most dramatic privacy law changes – this panel will look at how privacy compliance and cybersecurity risk management work their way into commercial technology agreements. Topics will include:

• Meeting statutory, industry and organizational requirements for privacy clauses;
• Understanding the controller / processor relationship (if such a thing exists in Canada); and
• Knowing what to look for, ask for and insist on for cybersecurity, including security provisions and incident notification.

Moderator: 
Speakers: 

• Eugen Miscoi, Associate, McCarthy Tétrault LLP
• Patrice Labonté, General Counsel North America, Valtech

Halifax: 1 to 6 pm AT
Hosted by McInnes Cooper (MAP)

Bridge over Troubled Water: Achieving Success and Managing Expectation as a Junior Lawyer
This program is designed to assist junior lawyers understand the skills necessary to achieve success and manage expectations within the legal profession. Topics to be covered in this interactive program include time management; goal setting; responsive communication; mentorship; and work-life balance. Panelled by seasoned technology lawyers with a broad array of in firm and in house experience, attendees will learn how to:

• manage competing priorities;
• identify and communicate areas of interest;
• find a mentor and maximize value in the relationship; and
• understand various legal environments (in firm, in house, etc.) and their growth opportunities.

Moderator: Jennifer Davidson, Partner, Deeth Williams Wall LLP
Speakers:

• Sarah Dykema, Partner, McInnes Cooper
• Harj Gill, Corporate Counsel, NTT DATA Services

The program will centre around issues in drafting and revising agreements; our team of experts in the field will take you through all the necessary steps in drafting and reviewing contracts. 

Each location will host a live session, with the remaining four sessions live broadcast from cities coast to coast.

Fees:

• $125: CAN-TECH members
• $150: Non-members
• $50: CAN-TECH student members
• $100: Student non-members (this includes registration for the event plus CAN-TECH membership for the remainder of 2023)

Interested in registering small groups?

• 3-4 registrants save 10%
• 5 or more save 15%

Email contact@cantechlaw.ca for details on group savings.

Come out to learn, network and grow.

Space is limited, be sure to register early!

REGISTER HERE

Why join CAN-TECH Law?

Benefits of membership include:

• Members only access to our Mentorship program
  • Partner with an expert for career advice and create lasting connections
• Discounts on CAN-TECH conferences
  • Our Spring Conference program is built for junior lawyers and students specifically in mind. Learn the basics from our expert panels and make lasting connections
  • Our Fall Conference program brings together professionals from all career stages for learning, teaching and networking opportunities
• Free attendance to most CAN-TECH roundtables
• Access to members-only content and resources that include articles, conference content and videos
• Networking opportunities with members of the IT bar nationwide
• Get listed on our Member directory 
• Volunteer opportunities with our active committees
  • Student members are encouraged to volunteer on our committees; have a voice in building programming for our membership, through roundtable events and conferences

CAN-TECH provides you with opportunities to sharpen your practice, network and grow professionally, as well as access exclusive content to stay on top of the latest developments in national and global technology law.

CAN-TECH is the only national legal association that is dedicated to all aspects of technology law and includes members from all areas of practice – large firms, small and solo practices, corporate counsel, government, academia and students.

JOIN HERE

British Columbia privacy commissioner releases tool for assessing and addressing privacy breaches

Though British Columbia remains the last province with a private sector privacy law that does not mandate notification and reporting of serious privacy incidents, the Information and Privacy Commissioner of British Columbia has recently released a very user-friendly resource for the private sector on evaluating and responding to privacy incidents.

For more details, please click here