News

Information, misinformation and disinformation about COVID-19 has been ebbing and flowing along with the pandemic in 2020 and 2021. Many have been engaged in sharing their opinions about the virus, possible treatments and vaccinations, but the regulators of healthcare professionals have taken a keen interest in social media posts that may, in their view, harm public health.

The Ontario College of Physicians and Surgeons of Ontario’s Inquiries, Complaints and Reports Committee (ICRC) has in three cases found that public social media commentary it considered to be inaccurate and misleading presented a potential risk to public health and imposed discipline on the offending physician.

One physician in particular was the subject of multiple complains from the public related to her activities on Twitter, which included posts such as ““There is absolutely no medical or scientific reason for this prolonged, harmful and illogical lockdown” and “If you have not yet figured out that we don’t need a vaccine, you are not paying attention” and “Contact tracing, testing and isolation.. is ineffective, naïve & counter-productive against COVID-19.. and by definition, against any pandemic.” Other posts that gave rise to other complaints, including a tweeted a message that strongly implied that hydroxychloroquine (HCQ) could “prevent, cure and treat early COVID-19” but that the federal government was withholding this treatment from the Canadian public for vague but sinister reasons.

In three separate decisions, all of which are currently under judicial review, the College cautioned the physician for her lack of professionalism and failure to exercise caution in her postings, which was considered to be irresponsible and a possible risk to public health. The ICRC concluded:

The Committee did not accept the Respondent’s position that her tweets come from a personal Twitter account that has no affiliation with her practice. The Respondent’s Twitter biography makes it very clear that she is a physician and also identifies her as the leader of a group of physicians, Concerned Ontario Doctors. The Respondent’s tweets are accessible by the public. Moreover, members of the public who are not healthcare professionals are likely to attribute significant weight and authority to the Respondent’s tweets, given her profession. Non-medically trained members of the public would likely have difficulty determining the scientific and medical validity of the Respondent’s tweets.

On the basis of the above, the Committee decided that it would be appropriate to caution the Respondent in this matter.

The ICRC stated that this was particularly problematic, and “irresponsible and careless in the current context and climate”.

Though some may perceive otherwise, regulated professionals – including healthcare professionals – continue to have professionalism obligations when using social media, particularly when their comments are connected to their holding of credentials and are on a controversial matter related to their profession.

The Ontario Court of Justice asks: “In the age of Zoom, is any forum more non conveniens than another?”

In a motion brought to stay proceedings in the Ontario court in favour of an arbitration in Chicago, the Ontario Superior Court of Justice had to grapple with time-worn arbitration and conflicts of laws questions, but through a completely novel lens. Justice Mogan commenced the reasons in Kore Meals LLC v. Freshii Development LLC:

[1] In the age of Zoom, is any forum more non conveniens than another? Has a venerable doctrine now gone the way of the VCR player or the action in assumpsit?

The plaintiff, Kore Meals LLC, and defendant, Freshii Development LLC, were parties to a Development Agent Agreement that contained an arbitration clause that called for arbitration in the city of the defendant's head office, which was named as Chicago. The plaintiff wanted to litigate in the courts in Ontario, named as a co-defendant the parent company of Freshii Development that was based in Ontario, and pointed to the fact that the defendant’s only presence in Chicago was a mailbox. The defendant had no office or personnel in Chicago.

In the usual course, an arbitrator would be called upon to determine whether the case was arbitrable. Because that arbitration necessarily “sit” in Chicago, the plaintiff said that would be unfair and impractical, as it is that venue that is being challenged. When asked where the American Arbitration Association is located, both parties counsel indicated they were unsure as all submissions would be made online. When asked if the proceeding would similarly be online, counsel advised the court that would likely be the case in light of the pandemic. With this information, the court wrote:

[29] All of which undermines the majority of forum non conveniens factors. If hearings are held by videoconference, documents filed in digital form, and witnesses examined from remote locations, what is left of any challenge based on the unfairness or impracticality of any given forum? To ask the question is to answer it. Freshii Developments may have a miniature post office box or an entire office tower in Chicago, and witnesses or documents may be located in Canada’s Northwest Territories or in the deep south of the United States, and no location would be any more or less convenient than another.

Following consideration of the fact that there would likely be no issue of enforcement of any arbitral award issued by an American arbitrator, the court concluded that location is currently largely irrelevant:

[31] It is by now an obvious point, but it bears repeating that a digital-based adjudicative system with a videoconference hearing is as distant and as nearby as the World Wide Web. With this in mind, the considerable legal learning that has gone into contests of competing forums over the years is now all but obsolete. Judges cannot say forum non conveniens we hardly knew you, but they can now say farewell to what was until recently a familiar doctrinal presence in the courthouse.

[32] And what is true for forum non conveniens is equally true for the access to justice approach to the arbitration question. Chicago and Toronto are all on the same cyber street. They are accessed in the identical way with a voice command or the click of a finger. No one venue is more or less unfair or impractical than another.

The defendant’s motion for a stay was granted in favour of arbitration as contemplated in the agreement.

The CAN-TECH LAW Association offers a variety of ways for our members to get involved via our various committees. Volunteers are at the heart of what we do, and it is only because of the time and knowledge our volunteers contribute that we are able to fulfill our mission.

Our committees in particular help shape key organizational decisions, provide strategic direction, and move the field of legal technology forward.

Committee volunteer benefits include building a strong professional network, learning about key legal technology issues, and participating in professional development opportunities. Committee members are expected to actively participate in their committee; however members will have the opportunity to work with Committee co-chairs to discuss how much or how little time they can contribute to various initiatives. 

Below are current CAN-TECH LAW committee opportunities for 2021. However, we are open to creating new committees based on membership interest.

• Women in Tech Law - This is a standing committee which supports female identifying members of the legal bar by providing tools to success including a variety of leadership development, education, networking and mentoring opportunities for women at all levels of their careers. Committee participation and events are open to all members and all are encouraged to participate.
• Diversity - This is a standing committee whose principal project for 2021 includes implementing the suggestions outlined in the organization’s diversity and inclusion report from 2020. The committee also supports the planning of D&I events as appropriate.
• Mentorship - The Mentorship Program will be launched in 2021 with a goal of creating meaningful mentorship relationships between junior, intermediate and senior Can-Tech members to help junior members achieve success in their career. This program will be supported by both WIT and D&I. 
• Spring Conference Planning Committee - This is an annually constituted committee which is currently actively planning our spring series conference which will occur in late May/June. 
• Fall Conference Planning Committee - This is an annually constituted committee which is responsible for planning our fall conference. Volunteers are currently welcomed.
• Privacy, Artificial Intelligence, Digital Identity, Cybersecurity, FinTech - These are ad hoc committees whose goals will be to discuss and comment on developments in the applicable fields and organize round-tables for members on key topics as appropriate. 

*Co-chair position(s) open; please indicate to us if interested.

While you can volunteer at any time, we invite you to volunteer by Thursday, April 22, 2021.

Committee participation is open to all CAN-TECH LAW members.

Should you have any questions or would like to participate kindly send a note to mohammad.ali@cantechlaw.ca

The ADR Institute of Canada (ADRIC) has adopted Med-Arb Rules and announced a new Chartered Mediator-Arbitrator (C.Med-Arb) professional designation in recognition that med-arb is a distinct process that is different from either mediation or arbitration on their own.

Med-arb is widely used in areas such as employment and family disputes and is now gaining acceptance in the commercial disputes. It promises both flexibility and finality, saving time and money by having a single mediator-arbitrator conduct the entire process. This makes it an attractive option for resolving many technology disputes.

But there are traps for the unwary. There must be clear procedures to ensure fairness and an enforceable agreement or award at the end of the day. The Med-Arb Rules, which incorporate ADRIC’s existing Mediation Rules and Arbitration Rules, provide a complete procedure for both the mediation and arbitration phases of the med-ab process.

The Rules can be incorporated in a contract or stand-alone dispute resolution agreement. They can be modified by agreement of the parties, providing a high degree of flexibility.

The Rules require that the mediator-arbitrator remain independent and impartial at all times. There must be full initial and ongoing disclosure of any potential conflicts. But the Rules also make it clear that merely acting as a mediator, meeting separately with parties or questioning the merits of a party’s position during the mediation phase, will not amount to procedural unfairness.

Those seeking the Chartered Mediator-Arbitrator designation must have training and practical experience to avoid the potential traps that can lead to unfairness and bias claims. The goal is to ensure that there is a valid and enforceable agreement or award at the end of the med-arb.

The transition from the mediation phase – when everyone is at least trying to get along and come up with a settlement – to the arbitration phase – when everyone suits up to fight over the remaining issues – is the most difficult part of any med-arb.

The Rules deals with these crucial transition issues:

• The mediation phase ends when an agreed time limit expires, the parties have settled all issues in dispute, the parties agree in writing, or the mediator decides to end it.
• When the mediation phase ends, the parties must confirm which issues have been resolved (to be documented in a settlement or consent award).
• The parties must also identify the unresolved issues to go to arbitration. If they can’t agree, the mediator-arbitrator will identify those issues.
• At the beginning of the arbitration phase, the mediator-arbitrator will decide any challenge arising from the mediation before continuing with the arbitration. Any party that does not object is deemed to have waived any such challenge.
• Any other objection to the mediator-arbitrator, such as impartiality or qualifications, must be resolved under the ADRIC Arbitration Rules.
• During the arbitration phase the mediator-arbitrator must not use information from the mediation phase unless it becomes evidence in the arbitration or the parties consent to its use.

These points expressly address many common concerns about the med-arb process.

With technology or project disputes, when time is critical, there may be a temptation to move quickly to a final settlement or award, but the Rules recognize that there are dangers in moving too fast.

There must be a clear, bright-line transition from mediation to arbitration.

The parties and the mediator-arbitrator must document the issues that have been resolved and those that have not. This may be tricky in some cases. For example, agreement on one issue may be dependent on resolution of another.

If a party has an objection to the mediator continuing as arbitrator for any reason, they must raise it right away. They can’t wait to see how things go and object later, if the award goes against them.

The rule against using information from the mediation unless it becomes evidence in the arbitration puts a responsibility firmly on the arbitrator, and on each of the parties, to be very clear about what information is in evidence and what is not.

As noted in McClintock v. Karam, 2015 ONSC 1024 (CanLII), an often-cited family med-arb case, the mediator-arbitrator “cannot be expected [to] entirely cleanse the mind of everything learned during the mediation phase, and of every tentative conclusion considered, or even reached, during the mediation phase. However, at a bare minimum the parties are entitled to expect that the mediator/arbitrator will be open to persuasion, and will not have reached firm views or conclusions.”

The ADRIC Med-Arb Rules and evolving best practices should help meet that goal.

See Michael Erdle’s Slaw.ca column for more commentary on med-arb and the ADRIC Med- Arb Rules.

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.

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.

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.

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.

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).

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.