News

Men charged with obstruction of justice for posting recordings of court proceedings on Instagram

It was recently reported that Toronto police charged four men with obstruction of justice, failing to comply with a publication ban and intimidation of a justice system after they allegedly posted recordings of court proceedings on Instagram. A statement by the Toronto Police Department advised that two Instagram accounts had posted pictures of a witness testifying at a preliminary hearing held on Zoom, and later posted audio recordings from a related hearing.

Recent amendments relax cross-border restrictions 

In October and November, the government of British Columbia introduced and passed Bill 22, the Freedom of Information and Protection of Privacy Amendment Act, 2021 that significantly alters the public sector privacy and access law for the province. Most notably for technology law practitioners, the Bill repealed the data sovereignty limitations found in sections 30.1 and 33.1 of the Freedom of Information and Protection of Privacy Act. In their place, a replacement section 33.1 has been added:

Disclosure outside of Canada

33.1 A public body may disclose personal information outside of Canada only if the disclosure is in accordance with the regulations, if any, made by the minister responsible for this Act. 

Another amendment permits the temporary disclosure of information for machine processing outside of Canada and specific rules for metadata: 

33 (2) A public body may disclose personal information in any of the following circumstances: …

(u) if the disclosure is necessary for the processing of information and the following apply:

(i) the processing does not involve the intentional accessing of the information by an individual;

(ii) any processing done outside of Canada is temporary;

(v) if the information is metadata and the following apply:

(i) the metadata is generated by an electronic system;

(ii) the metadata describes an individual's interaction with the electronic system;

(iii) if practicable, information in individually identifiable form has been removed from the metadata or destroyed;

(iv) in the case of disclosure to a service provider, the public body has prohibited subsequent use or disclosure of information in individually identifiable form without the express authorization of the public body;

So far, there has been no indication when (or whether) the government intends to introduce regulations related to the disclosures outside of Canada as contemplated under the replacement section 33.1.

Witness obscures, conceals text messages during Zoom trial, held to have fabricated evidence

The leap to doing hearings and even trials via online platforms such as Zoom has been a significant one, but many matters have proceeded in this way throughout Canada and generally seem to produce solid and uncontroversial results. This was not the case in a recently reported family law matters, which demonstrated some of the problems that can arise when doing “virtual” trials while at the same time showing that witness credibility issues can be dealt with nonetheless in that setting. In Oremush v. Hickey, Justice Audet of the Ontario Superior Court of Justice presided over an application by a father to vary custody conditions regarding his child, which had been imposed in a previous court decision. The three main witnesses in the trial, which proceeded on Zoom, were the father, the child’s paternal grandmother, and the mother; the trial judge held that none of them “had much credibility.”

A week before the trial, the mother had reviewed a series of text messages between the father and mother that had been disclosed by the father, and proceeded to upload “her own version” of the text exchange. That version included a number of very damaging admissions made by the father as to the parents’ comparative parenting ability, his motivations, etc. The father vehemently denied that he had sent the damaging texts and stated that they had been fabricated by the mother. The mother in turn denied this, stating that she had taken screenshots of the texts directly and emailed them directly to her lawyer. “Therefore,” Justice Audet observed, “the authenticity of the mother’s text messages became a key issue in this trial.”

During cross-examination of the mother by the father’s counsel she was asked to show the court the text messages. She first denied that she still had them and stated that she had deleted them some time ago, and continued to refuse to admit she still had them. Her testimony became increasingly suspect:

[45] … When asked to show her cell phone to the camera and scroll down slowly so we could see how far the text message exchanges between her and the father went, it became obvious that the mother was keeping her finger on the screen of her phone to make sure it could not scroll down past a certain date. 

[46] It took a lot of direction (including eventually by myself) for the mother to finally remove her finger from the screen and to stop interfering with her phone to allow everyone to see the string of messages. It became clear that she did, in fact, still have all of her text messages going back years.

[47] The mother then became very defensive and agitated. She started to question the purpose for which she was required to do this, became belligerent with opposing counsel, and quite flustered by the process. When directed to go to a specific date in July 2020, the date at which one of the very damaging messages had purportedly been sent to her by the father, she started to give all sorts of explanation as to why it “might” not be there anymore (while searching for the particular date on her phone), including that she had also exchanged many text messages with the father using her iPad (which, conveniently, was now in the possession of her parents in Nova Scotia).

Things went from bad to worse when the mother insisted on a break to feed her child, at which point the court granted a request that her camera be kept pointed at the phone during the entirety of the break, during which time the father’s counsel’s associate was to pick up the phone. When the trial resumed it was noted that the mother’s camera had been disconnected for 4-5 minutes during the break, and that when the phone was examined at the father’s counsel’s office, “all text messages between the parties that the phone ever contained had been entirely wiped out.” The judge held that the mother’s evidence (like that of the father and grandmother) was completely lacking credibility, in part based on the following:

[53] From the above, I come to the following factual findings:

• The mother’s version of the text messages exchanged between her and the father is not authentic. Those messages were fabricated by the mother or someone else at her behest;
  
  
• The mother lied to the court when counsel was trying to get her to access the text messages on her phone. She deliberately tried to conceal the history of messages and, when she failed, she lied by saying that she could not access them before;
  
  
• During the lunch break, the mother intentionally disconnected from the Zoom call just long enough for her to delete all the text exchanges between her and the father that her cell phone contained. I find that she (or someone for her) erased all those messages, in clear breach of my specific order.

2021 CAN TECH Fall Conference recordings are now AVAILABLE.

Originally recorded on October 20 & 21, 2021.

2021 CAN-TECH LAW Annual Conference to stay on top of the most recent and significant developments in Canadian and international technology law, gain an analysis of critical changes from over 45 leading experts from across Canada and the globe and to connect with our faculty and your peers via our interactive online experience. Get the answers you need to the latest and most critical technology law questions including:

• The latest legal developments related to privacy, cybersecurity and artificial intelligence
• Managing risks arising from the expanding use of digital identification technologies
• Changes in all areas of intellectual property and the implications for technology transactions
• Comprehending evolving legal issues related to blockchain and non-fungible tokens
• Drafting and negotiating digital interaction agreements and risk allocation
• Keeping up with new standard contractual clauses for transferring personal data

VIEW AGENDA
VIEW ACCREDITATION

Fees:

Full conference:

• Member: $450 + HST
• In-House Counsel: $350 + HST
• Non-member: $650 + HST
• Student: $75 + HST

One day only (choose either Day 1 or Day 2):

• Member: $225 + HST
• In-House Counsel:$125 + HST
• Non-member: $325 + HST
• Student: $40 + HST

SPECIAL INSTRUCTIONS:

A link to access the webcast recording will be included in your registration confirmation. Be sure to check your spam/promotions folder.

There are no refunds.

Register here

November 24, 2021 12 to 1 PM ET

Please join us for our Women Telling Stories event. Our excellent panel of female lawyers from different practice areas and levels of experience will share stories from their professional journey to provide insight on seizing opportunities and navigating challenges in the legal world. Our panel will impart their most impactful professional advice, followed by a fireside chat with questions. No doubt will you find inspiration from these amazing mentors and learn best practices for career and profile management as a legal professional; mentoring best practices; and work/life balance and wellness principles for lawyers and paralegals. 

Agenda: 

• Our panel of experts share their professional stories
• Fireside chat with the questions

Moderated by:

• Lisa Danay Wallace, WeirFoulds LLP
• Maya Madeiros, Norton Rose Fulbright

Our panel of experts: 

• Nancy Cleman - Lapointe Rosenstein Marchand Melancon 
• Catherine Lovrics – Marks & Clerk 
• Nadine Letson – Microsoft 

REGISTER HERE 

Unhappy plastic surgery patient held to have defamed surgeon in web reviews

In Peterson v. Deck, Justice G.P. Weatherill of the British Columbia Supreme Court presided over a summary trial in a defamation case brought by a plastic surgeon against a patient who was dissatisfied with the result of her breast augmentation surgery. The defendant had posted comments about the surgeon’s work on both her own website and in Google Reviews, in which she suggested he had made fundamental errors in his consultation with her and the surgical work, and generally imputing that he was incompetent. She defended on the basis of justification, fair comment and qualified privilege.

Justice Weatherill first dealt with the defendant’s argument that the claim was barred by the B.C. Protection of Public Participation Act, the province’s “anti-SLAPP” legislation which is designed to ensure valid commentary on issues of public interest is not suppressed by well-resourced defendants bringing legal proceedings. He accepted the defendant’s argument that “a consumer review of a plastic surgeon’s skills is within the ambit of public interest,” citing earlier authority for the proposition that:

Online reviews of goods or services offered to members of the public… are commonplace on Google or other web sites. While much of the general public may not be interested in [such] reviews…, it is enough that some segment of the community would have a genuine interest in receiving information on the subject.

However, the claim was not sufficiently in the public interest to meet the requirements under the Act, because the claim had merit and the harm to the doctor’s interests outweighed the value of protecting the expression:

This action was not brought to stifle or frustrate the defendant’s freedom of expression or prevent her from making reviews or participating in matters of public debate. Consumer reviews, as a general principle, ought to be encouraged and there is a very real danger of a chilling effect if they are curtailed. However, such reviews should not be left unbridled. Online review platforms are not a carte blanche to say whatever one wishes without potential consequences. This case was brought to vindicate the plaintiff’s reputation as a plastic surgeon in light of the Posts.

On the main claim, the court easily found that the posts were defamatory, given that they would tend to lower the reputation of the plaintiff in the eyes of the public. Justice Weatherill found that the posts had been “published” in spite of little evidence being led on whether anyone had read the reviews; however, they had been read by the surgeon’s administrative assistant, and the defendant herself had received responses to them and stated publicly that they had “gone viral,” which the court held to be sufficient.

Moving on to defences, Weatherill J. held that justification/truth was not available to the defendant, since the evidence indicated that she had made factual statements that were demonstrably false, regarding what had been discussed with her by the surgeon and what had taken place during the surgery. Nor was fair comment available, since the subjective opinions the defendant expressed in the posts were based on untrue facts. The court held for the plaintiff on liability.

As to damages, Weatherill J. noted that “the defendant published the Posts using the internet, a medium with tremendous power to harm a person’s reputation by spreading falsehoods far and wide,” and imposed damages of $30,000.00. He also imposed a mandatory injunction requiring the defendant to take down the posts and not place them anywhere else.

Methodology problems result in exclusion of survey results in trademark dispute

At issue in Tokai of Canada Ltd. v. Kingsford Products Company, LLC, was the admissibility of evidence that was generated by a consumer survey, which was designed to test consumer reaction to the use of the word “KING.” The plaintiff was trying to register this as a trademark for barbeques and butane lighters, but the defendant objected based on its numerous trademarks with the word “KINGSFORD” used with similar products. As fresh evidence on judicial review the plaintiffs had sought to lead expert evidence of an internet survey that comprised 707 interviews with consumers who had purchased, or planned to purchase, a butane lighter. Justice Fuhrer noted that as a survey evidence is a species of expert opinion evidence it must meet the usual requirements for admissibility, and:

Further, to be considered relevant, the survey must be both reliable (in that if it were repeated it would produce the same results) and valid (in that the right questions were put to the right pool of survey participants in the right way and in the right circumstances to produce the evidence sought)[.]

Here, there were both validity and reliability problems with the survey evidence proffered, which “highlights the challenges in attempting to simulate a consumer’s imperfect recollection at the time when they encounter the products and trademark in issue in the marketplace.” There were four particular deficiencies. First, the survey referred only to “butane lighters” but it might not have been clear to the average consumer, who was in a hurry, whether this referred to cigarette lighters or utility lighters, which could have skewed results. Second, some completed surveys were pulled from the results evaluated because the market researcher conducting the survey judged they had been “completed too quickly,” yet quick completion was likely to be a feature of a survey which was meant to capture the first impressions of the average, hurried, consumer.

Third, some survey participants were permitted to take many hours to complete the survey, which again was incorrect methodology for a survey meant to obtain first impressions. Finally there were contextual and other gaps in some survey questions. For example, “[t]he manner in which the survey participant was shown the brand name KING online [was] not reflective of the manner in which the trademark would be encountered in the marketplace in the applicable circumstances (i.e. on packaging or the goods themselves, potentially along side other similar products, such as on a store shelf).” In particular, an online survey, Justice Fuhrer felt, was not a good means by which to emulate how consumers would encounter the goods in a store, as opposed to a commercial website. Due to all of these flaws, the evidence was not sufficiently reliable or valid, and thus was excluded.

Ontario College of Physicians and Surgeons issues guidelines for physician use of social media

The College of Physicians and Surgeons of Ontario recently released a document entitled Social Media—Appropriate Use by Physicians, the stated goal of which was to provide “guidance to physicians about how to engage in social media while continuing to meet relevant legal and professional obligations.” The document notes that it is not itself a policy or formal means of establishing rules for conduct, but rather is intended to help physicians comply with existing professional expectations “in the social media sphere.”

The guidelines recommend that physicians:

1. Assume that all content on the Internet is public and accessible to all.
2. Exercise caution when posting information online that relates to an actual patient, in order to ensure compliance with legal and professional obligations to maintain privacy and confidentiality. Bear in mind that an unnamed patient may still be identified through a range of other information, such as a description of their clinical condition, or area of residence.
3. Refrain from providing clinical advice to specific patients through social media. It is acceptable, however, to use social media to disseminate generic medical or health information for educational or information sharing purposes.
4. Protect their own reputation, the reputation of the profession, and the public trust by not posting content that could be viewed as unprofessional.
5. Be mindful of their Internet presence, and be proactive in removing content posted by themselves or others which may be viewed as unprofessional.
6. Refrain from establishing personal connections with patients or persons closely associated with them online, as this may not allow physicians to maintain appropriate professional boundaries and may compromise physicians’ objectivity. It is acceptable to create an online connection with patients for professional purposes only.
7. Refrain from seeking out patient information that may be available online without prior consent.
8. Read, understand, and apply the strictest privacy settings necessary to maintain control over access to their personal information, and social media presence undertaken for personal purposes only.
9. Remember that social media platforms are constantly evolving, and be proactive in considering how professional expectations apply in any given set of circumstances.

New statutory tort for intimate images was determined to not cover all the harms alleged by the plaintiff

Madam Justice Inglis of the Alberta Court of Queen’s Bench has recognized, for the first time, the tort of “public disclosure of private facts” in the province of Alberta. In ES v Shillington, the plaintiff had previously obtained default judgement against the defendant for a number of recognized claims, including assault, battery, sexual assault and intentional infliction of emotional distress. A separate hearing was held for an assessment of damages and to determine whether judgement would be granted for the novel tort and for breach of confidence.

The case flowed from a very unpleasant marital break-up in which the plaintiff fled her husband from New Brunswick, where he as posted with the military, to her home in Alberta. In addition to a number of assaults, the plaintiff alleged that he had posted images of her online:

[11] While he was deployed, near the end of their relationship, the Defendant confessed to the Plaintiff that he had posted her images online. Through accessing the Defendant’s social media accounts the Plaintiff was able to track some of these postings and was disturbed to find many of those private, explicit images available on the internet at pornography sites. At no time did the Defendant have the Plaintiff’s consent to publish these images. The Defendant admitted that he had posted photos as early as 2006, and the Plaintiff has located images posted as late as 2018. As recently as early 2021 the Plaintiff was able to find some of these images online.

[12] The availability of these photos, including the fact that the Plaintiff is identifiable in some images, resulted in the Plaintiff being recognized in them by a neighbour that spoke to her sexually, having seen her likeness on a website. She has experienced significant mental distress and embarrassment as a result of the postings. She suffers nervous shock, psychological and emotional suffering, depression, anxiety, sleep disturbances, embarrassment, humiliation, and other impacts to her wellbeing.

The Court carried out a fulsome review of whether the novel tort should be recognized in Alberta, considering the criteria set by the Supreme Court of Canada in Nevsun Resources Ltd v Araya:

Three clear rules for when the courts will not recognize a new nominate tort have emerged: (1) The courts will not recognize a new tort where there are adequate alternative remedies (see, for example, Scalera); (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another (Saskatchewan Wheat Pool, at pp 224-25); and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial (Wallace v United Grain Growers Ltd, [1997] 3 SCR 701 (SCC), at paras 76-77). Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration.

Since the publication of the images, Alberta has created a statutory tort for the non-consensual distribution of intimate images (the Protecting Victims of Non-Consensual Distribution of Intimate Images Act), but it could not be applied retrospectively to provide the plaintiff with a remedy. Even if it would, the statutory tort is narrowly circumscribed and does not address all the harms she has experienced. In the circumstances, without recognizing the new tort, there would be no alternative remedies available for her.

The Court found that this tort was necessary to address an act of deliberate wrongdoing carried out by the defendant, and was one that is appropriate for adjudication:

[62] The conduct complained of by the Plaintiff clearly meets this third test; it is appropriate for judicial adjudication. The change sought of this court is a determinate and substantial change that recognizes the inherent harm done by dissemination of private content. When conduct attracts legislative and parliamentary attention, its wrongfulness is apparent. From Jane Doe #2 at para 88: “…Failing to develop the legal tools to guard against the intentional, unauthorized distribution of intimate images and recordings on the internet would have a profound negative significance for public order as well as the personal wellbeing and freedom of individuals.”

Conclusion re cause of action for Public Disclosure of Private Facts

[63] The existence of a right of action for Public Disclosure of Private Facts is thus confirmed in Alberta. To do so recognizes these particular facts where a wrong exists for which there are no other adequate remedies. The tort reflects wrongdoing that the court should address. Finally, declaring the existence of this tort in Alberta is a determinate incremental change that identifies action that is appropriate for judicial adjudication.

Following a review of the relevant caselaw from outside of Alberta, the Court stated the elements of the tort in the province:

[68] Therefore, in Alberta, to establish liability for the tort of Public Disclosure of Private Facts, the Plaintiff must prove that:

(a) the defendant publicized an aspect of the plaintiff’s private life;

(b) the plaintiff did not consent to the publication;

(c) the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and,

(d) the publication was not of legitimate concern to the public.

Given the overlap of damages among the intentional torts claimed, the damage award was not divided among them. Under those heads, the plaintiff sought and the court awarded general damages of $80,000, punitive damages of $50,000 and aggravated damages in the amount of $25,000.

Government is seeking input on framework to make internet companies responsible for policing content available in Canada

Almost immediately before the 2021 general election was called, the federal Department of Heritage launched a consultation on a proposed framework to address “online harms” by the imposition of obligations on online communications service providers, creation of a new regulator in Ottawa and enormous penalties. The announcement was accompanied by a discussion guide and a technical paper, the latter of which fulsomely describes the proposed framework put forward by the government. In the subsequent campaign, the Liberal Party has indicated their intention of passing “online harms” legislation in their first 100 days if re-elected.

The framework is intended to address five categories of content that is largely illegal, but the proposed definitions go beyond what the courts have determined to be unlawful: (a) terrorist content; (b) content that incites violence; (c) hate speech; (d) non-consensual sharing of intimate images; and (e) child sexual exploitation content.

Highlights of the proposed framework include requiring online communications service providers to have a flagging mechanism for harmful content, with review and removal within 24 hours. It specifically calls for making the content inaccessible in Canada. The new regulator, the Digital Safety Commissioner, would have very broad powers of supervision and significant transparency obligations would be placed on the providers. An appeal mechanism would rest in a new Digital Recourse Council of Canada, with further appeals going to a new Personal Information and Data Protection Tribunal.

The proposal anticipates massive penalties for non-compliance in an amount up to 3% of a provider’s gross global revenue or up to ten million dollars ($10,000,000), whichever is higher.

While the framework is detailed, it anticipates significant provisions would be left to regulation either by the Digital Safety Commissioner or the Governor-in-Council, or both.

A number of experts, including Professors Michael Geist and Emily Laidlaw have been critical of the approach taken by the Department, and Daphne Keller of Stanford has said the proposal “disregard(s) international experience with past laws and similar proposals around the world, as well as recommendations from legal and human rights experts inside and outside of Canada.”

The consultation is open for comments until September 25, 2021.