Last week, the Supreme Court of Canada (“SCC”) dismissed leave to appeal the Alberta Court of Appeal (“ABCA”) decision in Imperial Oil Limited v Alberta., thereby endorsing the ABCA’s approach to settlement privilege in the context of applications under the Freedom of Information and Protection of Privacy Act (“FOIPP”). Settlement privilege is alive, well, and strongly protected in Alberta, even in the more public regulatory context, as long as parties fall within the exceptions set out in ss. 16 and 27 of FOIPP. Continue Reading
On December 9, 2014, Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Act) – also known as the Protecting Canadians from Online Crime Act –, received the royal assent. The Act will come into force on March 9, 2015.
The Act deals with the serious issues of online bullying, harassment and non-consensual circulation of intimate images and aims the protection of Canadians from cyber-bullying and other forms of Internet exploitation.
Significant amendment to the Criminal Code
The Act notably brought two significant amendments to the Criminal Code:
- The creation of a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet, the recovery of expenses incurred to obtain their removal and the forfeiture of property used in the commission of the offence;
- New investigative powers (preservation demands, preservation orders and production orders) for law enforcement officers for the conduct of their investigation.
‘‘With the click of a mouse, personal health records can be accessed by those who have a legitimate interest in properly treating a patient – or they can be accessed for an improper purpose.’’
These were the opening words of the Ontario Superior Court in the case of Hopkins v. Kay where Representative Plaintiffs sought to bring a class action suit against a hospital and other defendants, alleging that approximately 280 patient records of the Peterborough Regional Health Centre (the ‘‘Hospital’’) were intentionally and wrongfully accessed by the Hospital’s staff and others.
The Plaintiffs based their claim on the tort of intrusion upon seclusion or breach of privacy based on Jones v. Tsige, 2012 ONCA 32. The Hospital in turn sought an order from the Superior Court to strike the Plaintiff’s statement of claim, taking the position that the essential character of the Plaintiff’s claim falls squarely within the scope of the Personal Health Information Act (‘‘PHIPA’’), contending that it constitutes a comprehensive legislative scheme dealing specifically with personal information in the health care context. Fundamentally, the Hospital takes the position that PHIPA has ‘‘occupied the field’’ and, as such, the claims by the Plaintiffs based on a common law tort are precluded by PHIPA. The Plaintiffs take the position that their claim for breach of privacy has been recently recognized by the Ontario Court of Appeal in Jones v. Tsige and that PHIPA does not oust the jurisdiction of the common law courts on this matter.
The motion judge refused to strike the claim and held that it was not plain and obvious that the claim based on Jones v. Tsige could not succeed. The Hospital appealed the decision. Continue Reading
The Office of the Privacy Commissioner of Canada (‘‘OPC’’) recently published a research paper entitled ‘‘Privacy and Cyber Security: Emphasizing privacy protection in cyber security activities’’ in which are outlined the common interests and tensions between privacy and cyber security. The report sets out key policy indications with a view to generating dialogue on cyber security as an important element of online protection, while acknowledging that cyberspace governance is a global issue.
The OPC bases its report on the following factual premises. As technologies facilitating access to the Internet have become increasingly entrenched in everyday life, we increasingly depend on the cyberspace for a whole range of critical social and economic interactions. This ever-increasing reliance on cyberspace creates new and significant vulnerabilities which have in turn set the stage for increasingly sophisticated and targeted threats. This risk is magnified, in part, by the storing and processing of electronic data on a massive scale. Continue Reading
Earlier this month, the U.S. Securities and Exchange Commission (“SEC”) and the Financial Industry Regulatory Authority (“FINRA”) each released reports addressing cybersecurity. FINRA’s report targeted its broker-dealer members, and the SEC’s report targeted broker-dealers and investment advisers, but the twin reports provide a roadmap to cybersecurity for financial market participants generally, both in the US and Canada.
There can be no doubt that cybersecurity is top-of-mind for those regulating the Canadian financial market. For example, the Canadian Securities Administrators recently published CSA Staff Notice 11-326 – Cyber Security in which it stated “[s]trong and tailored cyber security measures are an important element of issuers’, registrants’ and regulated entities’ controls in promoting the reliability of their operations and the protection of confidential information.” Late last year, the Office of the Superintendent of Financial Institutions published the OSFI Cyber Security Self-Assessment Guidance on cyber security to assist federally regulated financial institutions in assessing the adequacy of their cyber-security practices. Similarly, in December 2014, the Bank of Canada published its Financial System Review report in which it noted it required systemically important domestic financial market infrastructure to complete a self-assessment of their cyber-security practices against standards that promote a risk-based approach to managing cyber-security risk.
The American documents mirror Canadian concern with cybersecurity, and shed additional light on the practices, procedures and processes on which regulators will increasingly focus their attention.
“Asking a court to prohibit a notice of compliance after it has issued is like asking someone to close the barn door after the horses have escaped.”
With this analogy, the Federal Court of Appeal in Janssen Inc. v. Teva Canada Limited, 2015 FCA 36 has confirmed that an appeal from an order dismissing a prohibition application under the PM(NOC) Regulations becomes moot once the generic notice of compliance is issued. The Court dismissed Janssen’s appeal noting that it does not serve judicial economy to hear moot appeals.
In fact, the FCA has only exercised its discretion to hear such a moot PM(NOC) appeal once before, in Abbott Laboratories v. Apotex, 2007 FCA 153.
In the present case, Janssen argued that a specific appeal provision in the Comprehensive Economic and Trade Agreement between Canada and the EU creates unusual circumstances that should prompt the FCA to exercise its discretion to hear an otherwise moot appeal. The FCA rejected this argument, noting that a decision-maker cannot exercise its discretion in accordance with a law that has not yet come into force. The FCA also rejected Janssen’s assertion that a subsequent regulatory submission filed by Teva created an adversarial context that should prompt the exercise of discretion. The FCA reasoned that no adversarial context could arise in the absence of a corresponding prohibition application by Janssen, and even if such an adversarial context were to arise, it would be unrelated to the present proceeding.
The Ontario Court of Appeal has put to rest any notion that the practice of consultation between counsel and expert witnesses to review draft reports is improper. In its decision in Moore v. Getahun, 2015 ONCA 55 rendered on January 29, 2015, the Court explained that “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority”.
The Court observed that consultations between counsel and expert witnesses are essential to ensure that reports comply with the Rules of Civil Procedure and the rules of evidence, address relevant legal issues and are written in an accessible manner. Without engaging in communications with the expert, lawyers would be prevented from fulfilling their mediating role of explaining legal issues to witnesses and presenting complex evidence to the court.
On January 14, 2015, the Federal Court of Appeal released its reasons and judgment in Philip Morris Products S.A. v. Marlboro Canada Limited, 2015 FCA 9. The Court dismissed the appeal, finding that Justice de Montigny of the Federal Court made no reviewable error in awarding the respondents over $1 million in legal costs and disbursements. The award amounted to nearly half of the respondents’ actual costs.
It is rumoured that Bill 12 that amended the Alberta Health Information Act (“HIA”), passed on May 14, 2014, will come into force this year. Bill 12 made 3 significant changes to the HIA:
- adds mandatory breach notification provisions;
- authorizes the Office of the Information and Privacy Commissioner (“OIPC”) to disclose information about a breach in certain situations; and
- creates new offences and penalties.
We will discuss these 3 amendments in turn.
On January 20, 2015, the US Supreme Court rendered its precedent-setting decision in Teva that reversed the Federal Circuit’s practice of reviewing all District Court claim constructions de novo on appeal. Instead the Supreme Court found that some decisions are entitled to deference as a consequence of certain factual findings that require Courts of Appeal to apply a “clear error” standard of review, and consequently, bringing the review of US claims constructions methodology more in line with the Canadian approach.