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  • 27 Aug 2020 2:53 PM | CAN-TECH Law (Administrator)

    In January of 2020, the CAN-TECH Board of Directors created a Diversity and Inclusion Working Group (“Working Group”) composed of Elena Iosef, Andrew Alleyne, and Lisa R. Lifshitz. The Working Group’s recommendations to CAN-TECH regarding diversity and inclusion as of July 2020 are outlined here.


  • 19 Jun 2020 2:54 PM | CAN-TECH Law (Administrator)

    Motions judge orders cross-examination on affidavits to proceed online

    In Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, the applicant in the underlying application was seeking to be reinstated as president of the respondent organization. He made a motion for a judge to direct that cross-examination on affidavits be permitted to proceed by way of some form of video-conference. The respondent objected, arguing that there was a substantial number of cross-examinations to be completed, where some of the affiants were old and some amount of translation was required; they sought an order that the cross-examinations would be completed within two weeks of the COVID-19 order being lifted (which was indeterminate at that point).

    The motions judge, Justice M.J. Lema, first turned to the question of whether the Alberta Rules of Court actually permitted cross-examination by video. The existing Rules provided only for electronic “hearings,” which were to be in the presence of the court and did not necessarily apply to “upstream” litigation activities like cross-examination at motion hearings. However, case law under the predecessor Rule had expansively interpreted that rule to allow discoveries, etc. by video, and the evidence around the formulation of the new rules did not indicate that this expansive interpretation was to be somehow repealed. It was clear that, particularly since the onset of COVID-19, the use of video was being viewed in a more friendly way by motions courts and moreover it was clear that the “foundational-rule imperatives” (i.e. those promoting the inexpensive and timely resolution of disputes) could favour the use of video in appropriate circumstances. On this basis, Justice Lema concluded that the court had authority to order direct remote questioning on affidavits.

    In granting the order this case, Justice Lema cited approvingly the decision of Justice Myers of the Ontario Superior Court of Justice in Arconti v. Smith (reported in a recent edition of this newsletter), where an in-depth analysis produced a conclusion that the benefits of cross-examination by video-conference outweighed the risks. Regarding the need for an interpreter, Justice Lema relied on previous case law to the effect that proceeding by video-conferencing was a beneficial route for “modern international litigation,” and had ordered that individuals be subjected to cross-examination with the use of an interpreter who was physically present with the affiant in his/her location. This solution would work well in the present case. He also noted with approval the May 2020 Alberta Protocol for Remote Questioning, which had been formulated by experienced litigators and stakeholder organizations, and which would likely prove useful.

  • 19 Jun 2020 2:51 PM | CAN-TECH Law (Administrator)

    The Court sought guidance from defamation and privacy precedents in evaluating appropriate general damages award

    The first assessment of damages under Nova Scotia’s revamped cyberbullying statute is reported at 2020 NSSC 177. The Court had previously found liability in favour of the complainant and requested further submissions on damages and costs.

    The decision is notable because the Supreme Court of Nova Scotia determined that the evaluation of damages under the Intimate Images and Cyber-protection Act“should be determined with guidance from caselaw in related areas of tort law, including defamation and breach of privacy.”

    The statute requires that the Court consider a list of factors at section 6(7):

    (a) the content of the intimate image or cyber-bullying;

    (b) the manner and repetition of the conduct;

    (c) the nature and extent of the harm caused;

    (d) the age and vulnerability of the person depicted in the intimate image distributed without consent or victim of cyber-bullying;

    (e) the purpose or intention of the person responsible for the distribution of the intimate image without consent or the cyberbullying;

    (f) the occasion, context and subject-matter of the conduct;

    (g) the extent of the distribution of the intimate image or cyber-bullying;

    (h) the truth or falsity of the communication;

    (i) the conduct of the person responsible for the distribution of the intimate image or cyber-bullying, including any effort to minimize harm;

    (j) the age and maturity of the person responsible for distribution of the intimate image without consent or cyber-bullying;

    (k) the technical and operational practicalities and costs of carrying out the order;

    (l) the Canadian Charter of Rights and Freedoms; and

    (m) any other relevant factor or circumstance.

    The Court determined that this must be evaluated in light of the purposes of the Act, set out in Section 2:

    Purpose of Act

    2 The purpose of this Act is to

    (a) create civil remedies to deter, prevent and respond to the harms of non-consensual sharing of intimate images and cyber-bullying;

    (b) uphold and protect the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication; and

    (c) provide assistance to Nova Scotians in responding to nonconsensual sharing of intimate images and cyber-bullying.

    In the absence of previous damage awards under the Act, the Court reviewed a range of cases related to defamation, intrusion upon seclusion and false light publicity, and applied the principles for defamation damages set out in Hill v. Church of Scientology:

    [19] The factors to be considered in determining general damages for defamation were considered in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, where Cory J. said, for the majority:

    182 The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8th ed.), supra, at pp. 592‑93, in these words:

    SECTION 1. ASSESSMENT OF DAMAGES

    1451. Province of the jury. In an action of libel "the assessment of damages does not depend on any legal rule." The amount of damages is "peculiarly the province of the jury," who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and "the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused." They should also take into account the evidence led in aggravation or mitigation of the damages..

    In the result, the Court ordered the respondents to pay, jointly and severally, general damages in the amount of $50,000, punitive damages in the amount of $15,000 and aggravated damages of $20,000.

  • 19 Jun 2020 2:45 PM | CAN-TECH Law (Administrator)

    Appeal court determines that CASL is intra vires federal jurisdiction and impact on expression is justified under the Charter

    A unanimous panel of the Federal Court of Appeal has upheld the constitutionality of Canada’s Anti-Spam Law (CASL), which was attacked on a number of fronts by CompuFinder. CompuFinder had been found to be in violation of CASL in 2017, and unsuccessfully challenged the legislation before the CRTC. On appeal to the Federal Court of Appeal, that challenge failed.

    The decision in 3510395 Canada Inc. v. Canada (Attorney General) addresses division of power objections and a range of Charter questions.

    With respect to constitutional division of powers, CompuFinder argued that CASL was ultra vires the parliament of Canada as an unlawful intrusion into provincial jurisdiction. The government countered that it was a legitimate exercise of the general trade and commerce power in the Constitution.

    CompuFinder’s attack was focused on the regulation of commercial electronic messages, which is one part of the regulated activity within CASL. The Federal Court of Appeal referred to the more general objects of CASL:

    [93] There is, of course, no purpose clause for CASL’s CEM scheme in particular. However, the purpose clause for CASL as a whole, found at section 3 of the Act, is useful in discerning the purpose of the impugned scheme. Section 3 states that CASL’s purpose is “to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that discourages reliance on electronic means of carrying out commercial activities”. The Act’s title echoes this purpose. The reasons why Parliament sought to regulate commercial conduct of this description through CASL are enumerated in paragraphs 3(a) to (d), which speak to the evils the legislation aims to address. More specifically, the commercial conduct regulated by CASL is targeted because that conduct:

    (a) impairs the availability, reliability, efficiency and optimal use of electronic means to carry out commercial activities;

    (b) imposes additional costs on businesses and consumers;

    (c) compromises privacy and the security of confidential information; and

    (d) undermines the confidence of Canadians in the use of electronic means of communication to carry out their commercial activities in Canada and abroad.

    It is because certain commercial activities can give rise to these undesirable consequences that impact the economy that Parliament undertook to regulate those activities through CASL.

    To determine its validity under this head of jurisdiction, the Court referred to the five indicia from the General Motors case, the first two of which were admitted by CompuFinder:

    [113] The five indicia of valid general trade and commerce legislation were set out by the Supreme Court in General Motors. They are as follows: (i) the impugned legislation must be part of a regulatory scheme; (ii) the scheme must be monitored by the continuing oversight of a regulatory agency; (iii) the legislation must be concerned with trade as a whole rather than with a particular industry; (iv) the legislation should be of a nature that provinces jointly or severally would be constitutionally incapable of enacting; and (v) the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country (Kirkbi at para. 17 citing General Motors at 662).

    The Court distinguished the regulation of commercial electronic messages from the trade in securities, as was the focus of the Securities Act reference:

    [122] The appellant’s analogy between the Securities Act and CASL’s CEM scheme is ill suited in this regard. In the first place, the impugned CEM scheme does not regulate all messaging, but only one specific type—commercial messaging. It furthermore targets only a narrow aspect of this type of messaging, leaving ample room for provincial regulation of CEMs, including in the areas of consumer protection, privacy and marketing mentioned by the appellant. Further still, “messaging”, or, more properly, “commercial messaging”, is not a discrete economic industry in the same way as the trade in securities. E-commerce transcends industries and permeates the economy, meaning that CASL’s CEM scheme regulates a specific aspect of many industries, rather than all aspects of a specific industry, as with the Securities Act. The current inquiry centers on whether that specific aspect falls within the federal domain. The appellant’s strained analogy with the scuttled Securities Act does not support, let alone compel, a negative finding on this question.

    The Court then found that the provinces can still regulate in this area (pointing to privacy and consumer protection), the other General Motors indicia were made out. The court particularly highlighted that a single province that failed to regulate in this area could become a haven for spammers, undermining the regulation in other provinces. As a result, the Court determined that CASL is intra vires the general trade and commerce power.

    CompuFinder also attacked the legislation as violating freedom of expression under section 2(b) of the Charter. The respondent conceded that section 2(b) was infringed, so the analysis focused on whether it could be upheld under section 1 as a reasonable limitation.

    CompuFinder’s first section 1 argument was that the law was too vague to be “prescribed by law”, particularly focusing on the definition of “commercial electronic message” and the other defined terms that are imported into its meaning. The Court dismissed this argument, holding that the “zone of risk” was sufficiently defined. At paragraph 151: “CASL is sufficiently precise to delineate an area or zone of risk, which is all that can be realistically expected and all that is constitutionally required of legislation.”

    The Court then found that the objectives of CASL are sufficiently pressing and substantial, noting that – at this stage of the analysis – one should not confuse the objectives with the means chosen to address those objectives.

    With respect to the rational connection branch of the analysis, CompuFinder argued that CASL went well beyond truly “harmful spam” and regulated a much larger universe of communications. As a result, there was no longer a rational connection between the objectives of the Act and the Act’s scheme. The Court rejected this argument:

    [168] If the Act’s objective were to prevent only “the most damaging and deceptive forms of spam”, it would be possible to argue that CASL’s central prohibition, even though partial and accompanied by numerous exceptions, is nevertheless overbroad and must fail the rational connection test. However, the Act’s objective is not so narrow. The Act’s objective is to promote the efficiency and adaptability of the Canadian economy by regulating commercial conduct that, inter alia, impairs the efficiency and optimal use of, or undermines Canadians’ confidence in, electronic means of carrying out commercial activities. A wide range of commercial messages, far beyond what could be considered “the most damaging and deceptive forms of spam”, could controvert these objectives and therefore be rationally and not arbitrarily captured by the prohibition in subsection 6(1).

    On the minimal impairment argument, much of the analysis involved a comparison between CASL and the Australian anti-spam law. Canada’s law is “opt-in” while Australia’s is “opt-out”. The Court determined that both statutes address essentially the same categories of messages and was ultimately persuaded that opt-out would permit harmful messages to land in inboxes. Ultimately, the Court found that the Canadian model was one of a reasonable range of options for Parliament to adopt.

    The final branch of the section 1 analysis was also found in favour of upholding the legislation. The Court rejected CompuFinder’s argument that CASL has substantial deleterious effects on forms of expression other than commercial expression and that the impact on commercial expression is mitigated by numerous exceptions and prescribed method of compliance. Expression was regulated, not prohibited. The Court noted, citing Irwin Toy that commercial expression “is not as jealously guarded” as other forms of expression. Regulation and restriction of commercial expression can be more easily justified than with other types of expression, such as political expression, which lies closer to the core of s. 2(b) values. In conclusion, the Court found that the benefits outweighed the deleterious effects on freedom of expression.

    CompuFinder also argued that CASL violates section 7 of the Charter which provides particular rights when one is “charged with an offence”. The Court dismissed this and concluded that CASL is regulatory and not penal in nature. Similarly, the scheme of “administrative monetary penalties” is regulatory and does not engage section 7. Arguments put forward by CompuFinder related to sections 8 and 11 of the Charter were dismissed.

    It is not known whether CompuFinder intends to appeal to the Supreme Court of Canada.

  • 19 Jun 2020 2:43 PM | CAN-TECH Law (Administrator)

    Victim entitled to give electronic conversation to police

    A problem point around text message conversations and state access to them - one which was identified by the Supreme Court as a problem point in R v Marakah and deliberately left unsettled in R v Reeves – has been addressed in the Ontario Court of Justice decision in R v Morgan, [2020] O.J. No. 2330 (no hyperlink currently available). Marakah determined that a person retains a reasonable expectation in a sent text message, and therefore that the accused in that case had standing to challenge the unlawful search of his co-conspirator’s cellphone, on the basis that viewing the electronic conversation (as opposed to searching the physical device) intruded on the accused’s privacy interest. Objecting to that conclusion, the dissenting judges had said:

    [181] Under the Chief Justice’s approach, where police search a cellphone or other device for an electronic communication, any participant to that communication would have standing to challenge the lawfulness of the search. The same may be true even where a witness voluntarily shares an electronic communication with the police…

    It was exactly that situation which arose in Morgan. The accused had encountered an extremely intoxicated young woman on the street: he tried to assist her in getting home, but ultimately took her to his parents’ house, where they had sexual intercourse. The next day she confronted him about this activity, on the basis that she had not and could not have consented, by means of a text message conversation (TMC). Parts of that conversation were inculpatory, and she took the devices on which it had taken place with her to the police when she eventually reported matters to them. The police downloaded that conversation from the devices: they did not seek a warrant before doing so, and despite talking to the accused beforehand did not seek his consent. The accused argued, based largely on Marakah, that downloading and relying on the text messages would violate his section 8 Charter rights.

    The application judge disagreed. First, the judge concluded that the downloading of the conversation from the device was not, in itself, a search at all, and so did not raise section 8 issues. He concluded that, to use his analogy, this was not the equivalent of a victim bringing the accused’s backpack to police to be searched: it was like a victim placing the accused’s handgun in a purse to transport it to the police station, and then handing it over: “The purse, like K.L.'s phone, is merely a way of transporting the item of interest to the police. The electronic nature of this communication and its method of storage does not change the quality of this item of evidence” (para 21). The application judge also concluded that, although unique issues could arise around searches of electronic devices, the relevant considerations making those situations unique did not arise here:

    22…Although cellphones are well known to be mini-computers, capable of acting as repositories of vast amounts of data and personal information, that reality is irrelevant on the facts of this case… [W]hether K.L. printed out the TMC herself, and handed it over to the police in a sheaf of paper, whether she simply copied, pasted, and emailed it to the investigator, or whether she consented to the contents of her phone being extracted, one ends up at the same place and with the same result. The fact that the police chose to take possession of the best evidence of these communications (enabling substantive proof and authentication of the transmission) should not determine the legal status of the TMC under Section 8 of the Charter.

    The real issue, the judge held, was whether the examination of that conversation could be distinguished from the similar examination in Marakah. It could, the judge held, essentially on the basis that there was no impropriety against anyone in the initial obtaining of the text message conversation. In Marakah, the co-conspirator’s cellphone had been unlawfully searched. In essence, if the conversation occurred in a “virtual space”, in Marakah and other cases the police had forced their way into that space, the judge held, but that was not the case here.

    Similarly, the judge held, section 8 concerned whether a person had a reasonable expectation of privacy against the state. A person would have a reasonable expectation that the state would not unilaterally be a party to a private conversation, but would have not such an expectation about the other party to the conversation, and “...the Charter is not meant to protect us from a poor choice of friends” (para 40, quoting R v Duarte). The judge concluded:

    42…The Applicant effectively equates the fact of Mr. Morgan's electronic conversation with K.L. being shared with the police as being of the same character as the privacy infringement that would have occurred had the state, at its sole discretion, intruded upon the Applicant's privacy by itself creating the permanent electronic recording of his words.

    Ultimately the application judge concluded that although Marakah was a “game changer”, it “does not stand for the proposition that anytime the police come into possession of a TMC, even if delivered to them by a complainant through the medium of an electronic device, they have necessarily conducted a search or seizure that requires an inquiry into standing” (para 47).

  • 8 May 2020 3:14 PM | CAN-TECH Law (Administrator)

    Motions judge orders discovery of defendant to proceed by videoconference, over plaintiff’s objections

    In Arconti v. Smith, Justice F.L. Myers of the Ontario Superior Court heard a motion by the plaintiffs in the underlying civil action to postpone a scheduled discovery of one of the defendants until the requirement for “social distancing” was lifted. The plaintiffs objected to the discovery proceeding by way of video conferencing on the following grounds:

    1. that they need to be with their counsel to assist with documents and facts during the examination;
    2.  it is more difficult to assess a witness’s demeanour remotely;
    3. the lack of physical presence in a neutral setting deprives the occasion of solemnity and a morally persuasive environment; and
    4. the plaintiffs do not trust the defendants not to engage in sleight of hand to abuse the process.

    In dismissing the motion, Justice Myers made a number of remarks on the use of technology as part of the civil litigation process, including these memorable opening observations:

    [19] In my view, the simplest answer to this issue is, “It’s 2020”. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.

    [20] That is not to say that there are not legitimate issues that deserve consideration. Technology is a tool, not an answer. In this case, the parties cannot attend in the same location due to health concerns and governmental orders. So, the question is whether the tool of videoconference ought to be required to keep this matter moving or if the mini-trial ought to be delayed further due to the plaintiffs’ desire to conduct an examination for discovery in person.

    Noting that Ontario’s civil procedure rules have allowed for videoconferencing for more than 20 years, Myers J. opined that the usual rule that evidence should be provided “in court” did not apply to motions; nor was demeanour a factor in this case, since only the transcript of the discovery would be available for use at trial by the plaintiffs in any event. He then opined:

    [25] I do not dismiss the concern for abuse of the technology by a party who might be so inclined. It would not be difficult, for example, to put a person or another computer screen outside the field of view of the camera that could enable improper prompting of the witness. I suppose with current Bluetooth technology, even where parties are in the same room, a witness can wear a hearing device and readily receive improper prompting. People can also send hand signals to witnesses in court as well.

    [26] While it is important to remain vigilant against the risk of fraud and abuse, I do not believe that we have yet reached a point where we presume it either. This is especially the case where a lawyer is to be examined. While no one is immune from cheating, regulated professionals must maintain professional ethics and have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology.

    Justice Myers also took a dim view of arguments regarding the degrees of discomfort that might be introduced into the process by way of using new technology:

    [33] In my view, in 2020, use of readily available technology is part of the basic skillset required of civil litigators and courts. This is not new and, unlike the pandemic, did not arise on the sudden. However, the need for the court to operate during the pandemic has brought to the fore the availability of alternative processes and the imperative of technological competency. Efforts can and should be made to help people who remain uncomfortable to obtain any necessary training and education. Parties and counsel may require some delay to let one or both sides prepare to deal with unfamiliar surroundings….

    [….]

    [37] … just as all litigators have had to learn how to deal with juniors conveying information during an examination or argument in court, there are ways to do the same thing with technology. I note that the Zoom technology, that is currently among the brands being utilized in this court, includes “breakout rooms” in which counsel can meet privately with colleagues and clients. We are learning new ways to do things and they feel less “good” because we do not yet have the same comfort with the technology that we have with our tried and true processes.

    [….]

    [39] Two points are of note. First, the great fears expressed in case law by those who have never actually used the technology may not be as significant as feared. I agree with this view. However, I also agree with Perram J. and Mr. Bastien, that currently, it does appear that there is some loss of solemnity and personal chemistry in remote proceedings. What is not yet known however, is whether, over time, as familiarity with new processes grows, we will develop solutions to these perceived shortcomings.

    [40] As things stand at present, I do not doubt that there are perceived, and possibly very real shortcomings associated with proceeding remotely rather than in person. However, in this case at least, the benefits outweigh the risks. The most obvious benefit is that litigation will not be stopped in its tracks.

    [….]

    [43] … In my view, much of the hesitancy and concern that led to the conclusions that the process is “unsatisfactory” or raises “due process concerns” stems from our own unfamiliarity with the technology. As noted above, it is just a tool. It does not produce perfection. But neither is its use as horrible as it is uncomfortable.

    The discovery was ordered to proceed by way of videoconference on the scheduled dates.

  • 8 May 2020 3:09 PM | CAN-TECH Law (Administrator)

    Backpage.com a sufficiently precise location even post-Mills

    The Ontario Superior Court, with its decision in R v Sinnappillai, has looked at the potential impact of the Supreme Court of Canada decision about internet luring in R v Mills in an unexpected context: the defence of entrapment.

    The accused was charged with internet child luring and of communicating for the purpose of obtaining the sexual services of a person under the age of 18. He had seen an advertisement on Backpage.com from “Kathy” offering sexual services in exchange for money. He communicated by text with the telephone number given in the ad and was told by Kathy that she was only 15 years old, but arranged to meet with her nonetheless. In fact Kathy was a police officer posing as a 15 year old girl and the accused was arrested when he arrived at the appointed hotel room. As discussed in a previous Newsletter, the accused was unsuccessful in his arguments that the text messages which were used in evidence against him had been obtained in breach of his section 8 rights, and so the accused was convicted. However, he brought an application that that conviction should be stayed on the basis that he had been entrapped.

    The scheme by which the accused had been arrested was called “Project Raphael”, and a number of prior accused had tried and failed to persuade judges that it constituted entrapment. Briefly, entrapment has two branches, both of which are meant to prevent the police from engaging in what is usually called “random virtue testing”. The second branch of the test – the relevant one on the facts – says that it would be entrapment for police to offer a person about whom they have no individualised suspicion an opportunity to commit a crime, unless they do so as part of a bona fide investigation. An investigation will be bona fide within the meaning of this test if police limit their random offers to people who are in a location where it is reasonably suspected that criminal activity is occurring, provided that that location is defined with sufficient precision. Cases prior to Sinnappillai dealing with Project Raphael had concluded that Backpage.com was a sufficiently-precisely defined location, and that police had a reasonable suspicion that underaged prostitution was happening at that location, and therefore that it constituted a bona fide investigation: that is, that there was no entrapment. The only real issue in Sinnappillai was whether the Supreme Court decision in Mills, which post-dated the other Project Raphael cases, should change that conclusion. The trial judge concluded that it did not.

    The judge summarised the result in Mills:

    40 In Mills, a police officer posed as a 14 year old female named Leann in an undercover operation aimed at catching internet child lurers. The police created a Facebook account for Leann with a photograph of a young female and information that she resided in St. John's Newfoundland and attended a local high school. The accused, aged 32, contacted Leann through her Facebook page and subsequently exchanged messages with her over a two month period. He pretended to be 23 years old. Eventually, he arranged to meet Leann at a local park. He was arrested on arrival.

    Mills itself was about whether the accused had a reasonable expectation of privacy in his Facebook conversation with “Leeann”. It is a complex decision, with one cohort of three judges finding no reasonable expectation of privacy for one set of reasons, another cohort of two reaching the same conclusion for entirely different reasons, the sixth judge finding both of those sets of reasons persuasive, and the seventh judge finding a section 8 violation. Further, the trial judge here commented that “it is not entirely clear to me how any of the concurring reasons in Mills apply to Mr. Sinnappillai's argument that he was entrapped by the police through Project Raphael” (para 57).

    The central issue in the accused’s argument relate to Justice Brown’s decision in Mills, which is arguably the majority decision. Justice Brown relied on the fact that Mills was from the start communicating with what he understood to be a child who was a stranger to him: his reasoning was that an adult could not have a reasonable expectation of privacy with a child they did not know. In this case, defence counsel argued, that reasoning did not apply, since the Project Raphael advertisement on Backpage did not indicate that “Kathy” was 15: that information only came out later in the conversation. Relating this back to the test for a bona fide investigation, the argument would relate to whether the area is sufficiently-precisely defined: could it be said that Backpage.com was a location where the offence of seeking underaged sex workers in particular was taking place, so that it was not random virtue testing to offer any visitor to the site the opportunity to engage in that offence.

    The judge in Sinnappillai concluded that nothing about that point in Mills changed the entrapment analysis which had taken place in previous Project Raphael cases, which had looked at the issue of whether the advertisement targeted those interested in this particular offence. The judge also concluded that the timing of when an accused became aware that the person at the other end of the text conversation was a minor was not important:

    74 Clearly, the prior jurisprudence on Project Raphael has grappled with the argument that the police would not have known, from the outset, which visitor to the escorts section of Backpage.com was looking for an underage prostitute. And they have been alive to the fact that those parties texting "Kathy" would not have known, from the get-go, that she was underage. Uniformly, courts have rejected these factors as undermining the design of the operation.

    75 In the March 2016 iteration of Project Raphael, the police once again used a number of markers about the young age of the fictitious escort. They advertised her as "tight", "brand new", "sexy and young" and with a "young friend". Again, the police did everything they could to narrow the pool of targets to those interested in sex with young females.

    The judge concluded that nothing in Mills affected the reasoning from previous cases and so rejected the entrapment argument here as well.

  • 8 May 2020 3:06 PM | CAN-TECH Law (Administrator)

    100% guarantee too high a bar

    The Office of the Information and Privacy Commissioner for Ontario has considered the issue of blurring of faces in a video – or more importantly the possibility of reversing that blurring – with its decision in Humber River Hospital (Re). The applicant had fallen in a hallway of the hospital, and sought three pieces of video footage showing the events. Much of the decision relates to whether that footage constituted personal health information and so whether it was covered under the relevant legislation or not, and whether it could be severed from information not covered. However, one further issue was another aspect of the hospital’s stance with regard to the footage:

    [41] The hospital submits that blurring or blacking out images has traditionally been considered an appropriate method of severing video footage. It submits, however, that in this case, blurring out the images of the individuals other than the complainant is not sufficient to properly sever them out of the video. It submits that instructions on how to reverse or remove facial blurring or blacking out are readily available online.

     [42] The hospital further explains that in its initial response to the access request, it asked its lawyers to assist with the blurring of the video. The blurred video was then viewed by the complainant’s family, at no charge. The hospital submits that the complainant refused to see the video and refused to provide a confidentiality undertaking in exchange for a copy of the severed video. In the hospital’s submission, there is a real risk that he intends to re-identify the patients and other individuals in the video, and/or further disseminate the video to others who may do so.

    The hospital proposed that the video should be blurred further by a cybersecurity expert, which would take ten hours and would be at the applicant’s expense, and that the applicant should be subject to an undertaking not to attempt to de-blur the video or to disseminate it to anyone else.

    The Commissioner’s office ordered release of the video, and declined to impose any of the conditions sought by the hospital. The decision noted:

    [54] I understand the hospital’s concern for confidentiality and its desire to ensure that the privacy of its patients is not compromised. In my view, however, the risk that the obscuring technology the hospital chooses to apply to the video will be reversed is far too remote to justify withholding the entirety of the footage from the complainant. As the hospital itself acknowledges, this office routinely makes orders for the release of severed video footage. This has been ordered in cases where the information to be withheld is highly sensitive. The standard for severing cannot be perfection. In my view, it would be too high of a bar to require that severing be 100% foolproof.

    The adjudicator declined to order either that the applicant undertake not to attempt to de-blur the video or to disseminate it, holding that there was no basis beyond speculation to think that he might do so.

  • 2 Apr 2020 3:17 PM | CAN-TECH Law (Administrator)

    Landscaping contract gone bad results in eleven day Small Claims Trial and damages for privacy invasion

    In Cecchin v Lander, the Ontario Small Claims Court found that placing surveillance cameras on your own property but pointing at your neighbour’s property can be “intrusion upon seclusion” and nuisance. The case was the result of a residential landscaping arrangement between neighbors that went sideways, with the two parties winding up in an eleven day trial in the Ontario Small Claims Court.

    The plaintiffs, Dario and Elaine Cecchin, had initially hired their neighbor (or their neighbor’s company) to carry out landscaping work, which was cancelled by the plaintiffs about two weeks into the job. The plaintiffs alleged that the work was substandard, and the Small Claims Court agreed that the plaintiffs were justified in terminating it.

    Following the termination of the landscaping job, matters escalated. The replacement contractors were harassed by the defendant, as were the plaintiffs. (The Court concluded that the act of harassment did not create a civil cause of action.) The defendant also installed additional surveillance cameras on his property, pointing at the neighbor’s property. The Court noted how they were positioned:

    94. On the other hand I accept the evidence of the plaintiffs’ surveillance expert Mr. Jon Kuiper concerning these cameras and the extent of the areas they capture (Exhibit 3, Tab 9, last two pages). The defendants’ rear camera pointed at the plaintiffs’ property would capture essentially all of their backyard and the side of their house facing 920 [the defendant’s property]. The front camera would capture substantially all of the plaintiffs’ front yard and part of the front side of their house facing 920.

    95. Photographic evidence plainly shows both Mr. Bradbury and Ms. Lander pointing their mobile phones at the plaintiffs’ property on various occasions as if taking photographs or video. Their stance is aggressive. They are often right at the property line and essentially “in the faces” of the plaintiffs and/or TNT personnel as the case may be. On at least one occasion they enlisted the participation of a worker to join in their camera game (see Exhibit 2, Tabs 18-A, 18-F (lower)). I find that the defendants were using video recording devices, including the surveillance cameras, as weapons in their retaliation campaign against the plaintiffs.

    96. I accept that the surveillance cameras are pointed so that they capture the plaintiffs’ bedroom window and washroom window in addition to the entirety of the backyard including the patio area.

    The plaintiffs also had evidence of the positioning of motion activated floodlights that were pointed at the same bedroom and washroom windows, and that the defendant had parked vehicles in an obstructive manner.

    The court concluded that nuisance was made out and similarly found that the placement of the cameras constituted intrusion upon seclusion:

    90. Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsigesupra. At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

    One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

    91. A person’s residence represents a fundamentally important private and personal space. It is a home and a place of seclusion from the world at large. Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment. I conclude that the torts of invasion of privacy and nuisance are made out. The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.

    With respect to damages, the court awarded each of the plaintiffs $8,000 in general damages, just slightly below the middle of the range established in Jones v Tsige.

    The defendant counter-claimed, alleging breach of contract, nuisance and intrusion upon seclusion, all of which were dismissed.

  • 2 Apr 2020 3:04 PM | CAN-TECH Law (Administrator)

    Defendant attempted to strike claim for failing to particularize the specific confidential information at issue

    In an action alleging, among other things, misappropriation of confidential information, the defendants moved, in Evertz v. Lawo AG, 2020 ONSC 413, to strike the plaintiffs’ amended statement of claim. In a previous motion, reported at 2019 ONSC 1355, the plaintiffs’ statement of claim had been struck but with leave to file an amended claim within thirty days. It had been found to be defective due to the vagueness of the categories of confidential information and because the allegations of misuse of the confidential information was not sufficiently particular to inform each defendant of the acts alleged by the plaintiffs to constitute misuse of the confidential information at issue.

    The issue was whether the plaintiffs’ amended statement of claim had the same deficiencies. In the amended claim, the plaintiffs referred to categories of information:

    [10] In the amended statement of claim, at paragraph 92, the plaintiffs plead the confidential information that the defendants allegedly misappropriated and misused. This paragraph describes 23 categories of information such as “preliminary manuals”, “customer databases”, “parts and product databases”, “source code, binary files, and decompilable forms of confidential product software”, and “mechanical specifications and drawings”. Each such category, as pleaded, has a short description.

    [11] In paragraphs 94 through 99 of the amended statement of claim, the plaintiffs plead the confidential information that each defendant is alleged to have taken by listing specific categories of alleged confidential information.

    The defendants argued that this categorization was insufficient, but the court disagreed:

    [17] The defendants submit that by basing their claims on “categories” or “types” of information, rather than particular pieces of information, the amended statement of claim is defective for the same reason that the statement of claim was defective. The defendants submit that the plaintiffs have still failed to meet the minimum level of material fact disclosure that is sufficient to properly plead causes of action based upon alleged misappropriation and misuse of confidential information.

    [18] I disagree with the defendants’ submissions in this regard. In paragraph 91 of the amended statement of claim, the plaintiffs identified the particular products to which the confidential information they allege was stolen and misused related. In paragraph 92, the plaintiffs described with particularity the types of confidential information they allege the defendants stole and misused. The descriptions of the types of alleged confidential are much more specific than the descriptions in paragraph 91 of the original statement of claim. The plaintiffs are not required to plead the evidence by which they intend to prove their pleaded allegations, and they are entitled to plead facts they hope to be able to prove after discovery. The defendants would know from the amended statement of claim the information they are alleged to have misappropriated and misused.

    The court also found that the previous deficiencies regarding the manner of alleged misappropriation of confidential information was similarly remedied in the amended claim:

    [20] I disagree that the amended statement of claim is deficient in this respect. With respect to each defendant, the plaintiffs have pleaded the types of confidential information each defendant is alleged to have misappropriated and misused. These categories are repeated with respect to each defendant. The categories and types of confidential information which each defendants is alleged to have misappropriated and misused are particular. They not too vague or general that each defendant would not know what is alleged. The plaintiffs are not required to plead evidence upon which they rely. They are entitled to plead facts which they hope to be able to prove after discovery, provided the facts pleaded meet the minimum level of disclosure with respect to each defendant.

  

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