An interesting decision came out in the twilight of 2011. The Vancouver Sun v. British Columbia,2011 BCSC 1736 is worth a look not only because it is the first of what is likely to be many cases adjudicating fallout from last year's Stanley Cup riot in Vancouver, but also for its utilization of production orders to get useful information from third parties unrelated to the criminal events under investigation. As upcoming lawful access legislation is expected to create a number of new production orders (largely focused on acquiring telecommunications data from third parties), this case may provide a window into what is to come.

Vancouver Sun involves a challenge issued by a number of news organizations regarding a set of ex parte production orders forcing a number of news organizations to hand over any footage taken on the day of the hockey riots and within a designated geographic area. The photos themselves were sought by police to aid them in their ongoing efforts to identify all miscreants involved in the sadly destructive and at times violent riot that followed the Vancouver Canuck's tragic exit from the Stanley Cup finals last summer.

The media groups challenged the production order on a number of grounds, claiming the order was too broad in scope and seeking an exemption from compliance with the order as issued or, in the alternative, that the order be quashed.

The production order provisions currently in the Criminal Code include a provision permitting third parties to apply for an exemption from the scope of the order production would be "unreasonable" (CC s. 487.015(b)). The media organizations sought an exemption on the grounds that the orders were "premature, overly broad and capture vast amounts of material not relevant to any crime; that they fail to account for the special position of journalists requiring proof of true necessity and absence of alternate sources" (para 21).

The court rejected these grounds, citing Tele-Mobile Co. v. Ontario, 2008 SCC 12 in its conclusion that the 'unreasonableness' referred to in the exemption clause is limited to considerations of practical impact, cost of compliance, etc. Substantive factors going to the validity of the order cannot contribute to 'unreasonableness' under s. 487.015(b).

This meant the substantive concerns with the ex parte order would be considered under the Garofoli standard: based on the record before the authorizing judge, could that justice, acting judiciously, have granted the order.

The standard employed in production orders at issue is one of 'reasonable grounds to believe the data sought will afford evidence respecting the commission of an offence'. This is higher than the 'reasonable ground to suspect information will assist an investigation' standard that will feature in a number of the new proposed lawful access orders.

The applicants in Vancouver Sun argued the production orders failed to meet this standard because much of the material sought will not disclose evidence of criminal activities. The footage was recorded "within a large area of downtown before and after the riot…the [production order] does not adequately connect the specific images recorded to the offences committed." While there are certainly images of offences being committed within the materials at issue, much of the footage relates to innocent activity. So untargeted an order is essentially a fishing expedition.

While the production orders were eventually rejected on a technicality, Justice Harris rejected the majority of these overbreadth arguments. The question is not whether all the material sought will provide evidence of individuals actually committing offences (para. 46). Rather, the test is one of whether there are grounds to believe:

"the material sought would, not just taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences." (para 48 quoting CBC v. British Columbia, [1994] 32 CR (4th) 256 (B.C. S.C.))

What this means is that photos that are not directly linked to any criminal incident, but rather show people in the general vicinity during the general time window of the riot (give or take) are within scope because it is "relevant to the issue of identification of those involved in committing offences, even where the image…is captured in a different place from where the offence was committed." (para. 39)

Presumably, the images collected will feed the VPD's growing image-fuelled riot investigation apparatus which currently includes a 'tag your friends' website and, apparently, the use of facial recognition techniques built in to ICBC's biometric-enabled drivers license database.

While section 8 of the Charter was not raised, this was a case of statutory interpretation alone. Given that the images were taken in public, one wonders whether a reasonable expectation of privacy could have been asserted by any of those included in the extensive footage covered by the production orders. Recent case law from the U.S. suggests that extensive public surveillance might trigger constitutional protections, even where this is not otherwise the case (see US v. Jones … ). The need to show no more than a tangential connection between the images (and the people in them) on the one hand, and any actual offences on the other might be a cause of concern.

Justice Harris recognizes this. He states in his judgement that he was initially "concerned by both the geographic and temporal scope of the production orders" (para 52) in light of the time and location of actual offences, and that the request "struck [him] as broad." Unfortunately, there was not enough to second guess the Justice of the Peace who initially issued the orders. As production orders are almost always ex parte, these types of deficiencies in breadth of review are likely to recur.

More troubling is the impending application of these types of production orders to a wide range of Internet and mobile data, including tracking (GPS) data and interaction (transmission) data. Not only do these new types of production orders afford access to vast and potentially very sensitive types of data, but they will be available, via production order, at a significantly lower standard than that employed above. Police need only demonstrate a 'reasonable suspicion' that the material sought "will assist" in an investigation. Working backwards "somewhat broad" orders approved on ex parte application in Vancouver Sun. We may be moving closer to those 'fishing expeditions' our system of constitutional and legislative safeguards are intended to avoid.

This morning in a brief decision Canada's top court ruled in a Reference that Internet service providers are not bound by the CRTC's broadcast regulations

The judgment is so brief we quote it in full:

APPEAL from a judgment of the Federal Court of Appeal (Noël, Nadon and Dawson JJ.A.), 2010 FCA 178, 322 D.L.R. (4th) 337, 404 N.R. 305, [2010] F.C.J. No. 849 (QL), 2010 CarswellNat 2092, in the matter of a reference brought by the Canadian Radio‑Television and Telecommunications Commission regarding the Broadcasting Act. Appeal dismissed.

The following is the judgment delivered by

The Court —

[1] In a 1999 report, the Canadian Radio-television and Telecommunications Commission (“CRTC”) concluded that the term “broadcasting” in s. 2(1) of the Broadcasting Act, S.C. 1991, c. 11, included programs transmitted to end-users over the Internet. At that time, the CRTC concluded that it was not necessary to regulate broadcasting undertakings that provided broadcasting services through the Internet. It exempted these “new media broadcasting undertakings” from the requirements of the Broadcasting Act. In 2008, after public hearings, the CRTC revisited this exemption. One of the issues raised was whether Internet service providers – ISPs – were subject to the Broadcasting Act when they provided end-users with access to broadcasting through the Internet. The CRTC opted to send this issue to the Federal Court of Appeal for determination on a reference (2010 FCA 178, 322 D.L.R. (4th) 339). The specific reference question was:

Do retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

[2] ISPs provide routers and other infrastructure that enable their subscribers to access content and services made available on the Internet. This includes access to audio and audiovisual programs developed by content providers. Content providers depend on the ISPs’ services for Internet delivery of their content to end-users. The ISPs, acting solely in that capacity, do not select or originate programming or package programming services. Noël J.A. held that ISPs, acting solely in that capacity, do not carry on “broadcasting undertakings”.

[3] We agree with Noël J.A., for the reasons he gave, that the terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act, are not meant to capture entities which merely provide the mode of transmission.

[4] Section 2 of the Broadcasting Act defines “broadcasting” as “any transmission of programs … by radio waves or other means of telecommunication for reception by the public”. The Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. Section 2(3) states that the Act “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings”. Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse.

[5] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Broadcasting Act’s policy objectives.

[6] This interpretation of “broadcasting undertaking” is consistent with Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 20 S.C.R. 83. In Electric Despatch, the Court had to interpret the term “transmit” in an exclusivity contract relating to messenger orders. Like the ISPs in this case, Bell Telephone had no knowledge or control over the nature of the communication being passed over its wires. This Court had to determine whether the term “transmit” implicated an entity who merely provided the mode of transmission. The Court concluded that only the actual sender of the message could be said to “transmit” it, at p. 91:

It is the person who breathes into the instrument the message which is transmitted along the wires who alone can be said to be the person who "transmits" the message. The owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said … to transmit a message of the purport of which they are ignorant. [Emphasis added]

[7] This Court relied on Electric Despatch in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427, a proceeding under the Copyright Act, R.S.C. 1985, c. C-42, to conclude that since ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information.

[8] The appellants in this case argued that we should instead follow Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141. In Capital Cities, decided under a 1968 version of the Broadcasting Act, the CRTC had amended Rogers Cable’s licence, allowing Rogers to delete and substitute the television advertisements in the American broadcasts it received before it distributed the broadcast to viewers. The American broadcasting stations argued that the Broadcasting Act was ultra vires Parliament since it purported to regulate systems situated wholly within provincial boundaries. As part of this argument, the American stations attempted to sever the function of receiving television signals from the distribution or retransmission of those signals within a particular province. The Court rejected this severance of reception and distribution, stating that it was a “single system” coming under federal jurisdiction. The appellants argue before this Court that ISPs similarly form part of a single broadcasting system that is subject to regulation under the Broadcasting Act.

[9] Like Noël J.A., we are not convinced that Capital Cities assists the appellants. The case concerned Rogers Cable’s ability to delete and substitute advertising from American television signals. There was no questioning in Capital Cities of the fact that the cable television companies had control over content. ISPs have no such ability to control the content of programming over the Internet.

[10] Contrary to the submissions of the appellants, we need not decide whether the fact that ISPs use “routers” prevents them from being characterized as telecommunications common carriers. Noël J.A. was not asked to decide whether ISPs are a “telecommunications common carrier” under the Telecommunications Act, S.C. 1993, c. 38. Nor, based on the record before us, do we feel it appropriate for us to do so.

[11] We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users. We would therefore dismiss the appeal with costs.

Here is what Justice Corbett of the Ontario Superior Court of Justice had to say recently in Sri Guru Nanak Sikh Centre Brampton v. Dhadda,

[1] It is not open to anyone involved in the plaintiff to dispense with the law because they think they are wise and know what is best. “Tradition” is not a basis for ignoring the law.

…

[4] The plaintiff has a long sad history of conflict. And this just has to stop. It is an embarrassment: the plaintiff is an important religious, social and cultural institution. The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

[5] Snowie J. stated, roughly ten years ago: a “more business-like approach” to managing the affairs of the plaintiff would be in everyone’s best interests. Methinks Her Honour spoke too softly. No doubt she was moved by the fact that this is a religious and charitable institution, and the members and directors are unpaid volunteers. Apparently her message did not get through to everyone.

…

[11] Some of the defendants have engaged in gross misconduct in the conduct of this litigation. For them apparently, the ends justify the means. It is offensive that some defendants should perjure themselves so blatantly in their evidence. The ends do notjustify the means. Through their misconduct, these defendants have, in the end, only discredited themselves.

[12] Litigation is not some childish game. It is serious process of conflict resolution. It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.

[13] I understand that these are emotional issues for the parties. Some of the defendants have played key roles in founding and building the plaintiff. Together with some of the plaintiffs, they have built a wonderful and vibrant institution. But they do not own it. And these defendants’ past good deeds and leadership do not justify their misconduct.

With an opening like that, you know the facts have to be juicy. And they are, if not also complex and convoluted, and filled with an emotion.

But there are also some general principles of advocacy worth gleaning from the judgement too,

[290] A factum is written argument. That does not leave it open to deliver a written polemic. There should be a “facts” section of the factum, that underpins the argument. It is currently popular to blend facts and arguments. In my view, when this is done properly, it makes it easier to grasp the argument and evaluate the arguments. Where, as here, the recitation of the facts is the argument, and is not referenced to the evidence, the factum fails in its task to persuade. It creates suspicion in the mind of the judge. And so every controversial statement of fact must be checked to ensure its accuracy.

[291] Conclusions, or inferences, are of no value when stated baldly.

[292] Good advocacy is not the presentation of conclusions of inferences in a patterned argument. That is necessary, of course, but that is the easy part. Good advocacy is the careful selection and organization of facts that lead to the conclusions or inferences that then feed to a particular conclusion. The absence of a clear recitation of facts from which inferences or conclusions might be drawn has left it to the court to review the evidence to determine if there is evidence in the record to support the broad assertions in the defendants’ factum.

And if that doesn't have you reading the case for more, I'm not really sure what will.

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34100.

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34100. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

On the other hand, the Continuing Legal Education Society of British Columbia's (CLE BC) first "Causation in Tort" conference was held in Vancouver in June 2008, about 1 year after Resurfice. "Causation in Tort II" was held in Vancouver in June 2011. It will probably be late 2012 or early 2013 before the Clements reasons are released, assuming that Supreme Court concludes that the case requires something more than a brief oral judgment. Assuming the Supreme Court does attempt, again, to clarify the jurisprudence, it will probably take a year or so before the Clements reasons will have been considered often enough by the provincial and territorial courts that clear trends will be apparent. So mid 2014 will be just about time for "Causation in Tort III" in Vancouver, in May or June. (If you've spotted a trend, you're right.)

For those who care about such things, the materials from both "Causation in Tort" conferences are very good* and reasonably priced. They are available through the CLE BC web site store. (No, I don't get direct kickbacks but if enough people by the material that'll probably hint at some reason for the next conference.)

(*Full disclosure – I was involved in the preparation of some of the materials in both conferences. The "Causation in Tort II"  material includes sample factums for a mock appeal to the British Columbia Court of Appeal that was part of the "Causation in Tort II" programme. The factums cover a wide range of issues. The unfortunate plaintiff – an otherwise successful British Columbia lawyer – somehow managed to develop both AIDS and mesothelioma, then be killed in a rather complicated motor vehicle accident while on his way to an appointment with one of his doctors. The appeal dealt only with liability.)

Library Boy told us last year about some tentative steps that courts were making to embrace – or to sniff around tentatively – the whole subject of social media. Today's announcement from the UK Supreme Court that it will start official tweets of judgments – this in anticipation of the Assange extradition decision – represents the first wholesale adoption by a final court of appeal.

It overshadows Chief Justice McLachlin's announcement within a speech at Carleton University on the Media and the Courts, that the Canadian judiciary should start to think seriously about social media.

See the Globe, the Star, CTV and the Halifax papers

You can see a brief video clip here.

I understand that the Australians may be thinking about the issues too.

What is the responsibility of a public body to notify a third-party when a request for information is made? The Supreme Court of Canada considered this question in Merck Frosst Canada Ltd. v. Canada (Health), on appeal from the Federal Court, and released this week. Although the appellant's appeal was dismissed by the court, they did highlight some areas of improvement for the drug application process.

A competitor of the appellant pharmaceutical company, Merck Frosst, requested information under the Access to Information Act about submissions Merck had made to Health Canada. The submissions were required under the Food and Drug Regulations to bring Merck's Singulair® to market. They consisted of a New Drug Submission (“NDS”) and a Supplementary New Drug Submission (“SNDS”) that contained full and frank disclosure of all knowledge and information that the appellant had about the asthma drug, including list of ingredients, details of manufacture, tests for potency, purity, stability and safety, and detailed safety tests. Some of this information is eventually contained in the Product Monograph when the product is approved, but the contents are subject to discussions and negotiations between Health Canada and the pharmaceutical company.

Background

At issue was the appropriate balance between access to information for accountability and strengthening democracy, and private interests necessary to foster research and innovation. Justice Cromwell referenced Justice La Forest's statement in Dagg v. Canada (Minister of Finance) to explain the purpose of the Access to Information Act,

On receiving the information request from the appellant's competitor, Health Canada identified 30 out of 550 NDS pages and 60 of 300 SNDS pages that could not be disclosed under s. 20(1) of the Act,

20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this Act that contains

 (a) trade secrets of a third party;

 (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party;

 (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; …

The court noted that this section must be read in conjunction with substantive protections in s. 25,

25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.

Health Canada notified the appellant of the request when it was made under s. 27(1), but Merck indicated that all of the NDS and SNDS information were confidential trade secrets subject to s. 20(1), with the exception of already published studies and the Product Monograph. Health Canada took this into consideration and made further redactions, but provided disclosure to the competitor. As a result, Merck filed for judicial review. Five decisions preceded the hearing before the Supreme Court.

On the initial application, Merck was successful in part. The Federal Court held that Health Canada could not disclose any part of the record without prior notice apart from a public document called a Notice of Compliance. A unanimous decision on appeal remitted the matter back to Federal Court over a misinterpretation of s. 20(1)(b).

The rehearing found that Health Canada should have conducted its own thorough review before putting the onus of refusing the disclosure on Merck. Health Canada agreed to conduct further redactions. Some trade secrets were found by the court in the submissions, and Merck successfully obtained a declaratory order over the lawfulness of the procedure followed.

The Federal Court of Appeals then concurrently heard two appeals and cross-appeals. A unanimous court upheld the appeals and dismissed the cross-appeals, and held that the notice obligation only arises where s. 20(1) information is contained, and disclosure without prior notice otherwise does not contravene the Act. The interpreted the trade secrets exemption narrowly and with a high threshold, and required direct and objective evidence to demonstrate confidential information. The court found that Merck did not provide sufficient evidence in this respect.

Decision

Justice Cromwell for the majority indicated that government institutions must make reasonable efforts to give third parties written notice of requests for disclosure except where a waiver has been made. He applied the "modern approach" of statutory interpretation, also referred to in the literature as the "informed interpretation approach" or "pragmatic dynamism,"

[64] …the words of a provision are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament…

He held that s. 27 created a low threshold to trigger the notice requirements, but rejected the appellant's position that there as an automatic right to notice,

[64] …The grammatical and ordinary sense of s. 27(1) makes plain that notice is required only if certain conditions are met in the particular circumstances. The section does not refer to particular categories of documents but rather to particular types of information that are or may be contained in records otherwise subject to disclosure. The subsection sets out specific conditions precedent for engaging the notice requirement. As the Federal Court Trial Division put it in words that were endorsed by the Federal Court of Appeal: “The essential condition precedent to the issuance of the notice is that the respondent has reason to believe the disclosure of the record might be contrary to his obligation under section 20 not to disclose records”

He concluded at para. 84,

(i) With respect to third party information, the institutional head has equally important duties to disclose and not to disclose and must take both duties equally seriously.

(ii) The institutional head:

- should disclose third party information without notice only where the information is clearly subject to disclosure, that is, there is no reason to believe that it is exempt;

- should refuse to disclose third party information without notice where the information is clearly exempt, that is, where there is no reason to believe that the information is subject to disclosure.

(iii) The institutional head must give notice if he or she:

- is in doubt about whether the information is exempt, in other words if the case does not fall under the situations set out in point (ii);

- intends to disclose exempted material to serve the public interest pursuant to s. 20(6); or

- intends to disclose severed material pursuant to s. 25.

He noted that both parties took extreme positions and hoped for a more cooperative and constructive approach in the future, because the Act only functions when the parties cooperate. The institutional head cannot shift their responsibility on the third party and the third party must provide assistance in helping them carry out their duties,

[90] From the third party’s perspective, it is, of course, prudent and in accordance with common sense to be as helpful as it can be in identifying precisely why disclosure is not permitted. Nonetheless, the head must make a serious attempt, with the available information and having regard to the practical constraints, to discharge the responsibility imposed by the Act to apply the requirements to disclose or not disclose…

Eileen Vanderburgh of Alexander Holburn Beaudin & Lang LLP summarizes the relevance of the decision on the Information and Privacy Blog,

This decision confirms the obligations of a public body in dealing with requests for third party information and the rights and obligations of a third party seeking to restrict access to information it has supplied to a public body. In some cases private sector organizations can address their rights to notice of access requests for their information by way of contract, or by clearly advising the public body that it considers the information it is supplying to be confidential and within the category of information that is excepted from disclosure under any applicable access legislation, thereby triggering the obligation of the pubic body to provide notice. However, neither contract language nor statements of confidentiality will determine whether or not the records at issue are in fact excepted from disclosure.

Steven Slevin had a lifelong history of mental illness. On August 24, 2005, Slevin was charged with driving while intoxicated and receiving or transferring a stolen vehicle, and checked into the Dona Ana County Detention Center.

He was placed in solitary confinement, and remained there for approximately 18 months. He was briefly released for 14 days to receive psychiatric care and was returned to solitary confinement, for a total of 22 months, before the charges were dismissed and he was released on June 25, 2007 due to incapacity of participating in his own defence.

Slevin files suit on December 23, 2008, and on January 24, 2012 a jury awarded him $22 million, $6.5 million in punitive damages, and $15.5 compensatory damages for deprivation of constitutional rights, including the right to humane conditions of confinement, the right to receive adequate medical attention, and depriving him of procedural due process.

The court documents, including the complaint, trial briefs, and jury verdict, are available here. The county is expected to appeal the decision.

The inability of prisons to deal with mental health problems has long been recognized. The World Health Organization (WHO) estimates there are 450 million people with mental illness, who are highly represented in prisons populations,

The disproportionately high rate of mental disorders in prisons is related to several factors:

• the widespread misconception that all people with mental disorders are a danger to the public;
• the general intolerance of many societies to difficult or disturbing behaviour;
• the failure to promote treatment, care and rehabilitation,
• and, above all, the lack of, or poor access to, mental health services in many countries.

Prisons are often used as a dumping ground for those with mental health, and conditions there usually exacerbate mental health disorders. Improper treatment of mental health also has a cost to prison operations, because such inmates require specialized care and often more attention than others who are incarcerated. The high cost of incarceration, rather than publicly-funded medical care, means that the costs of inappropriate treatment of the mentally ill are passed on to the public.

Although damages as high as those awarded to Slevin would not likely be found in Canada, it is a reminder of the public cost of the government's omnibus crime package, Bill C-10. Jerry Madden, a conservative Republican and head of the Texas House Committee on Corrections, responded to Bill C-10 last fall,

It's a very expensive thing to build new prisons and, if you build 'em, I guarantee you they will come. They'll be filled, OK? Because people will send them there.

Let's just remember who we will inevitably be filling these prisons with.

Globalization takes its toll. This time the toll is to be paid by Americans who want to use works that had, according to US law at the time, entered the public domain but that have been removed from that status and place back under copyright by a 1994 act of the US Congress in order to bring that country into line with the Berne Convention for the Protection of Literary and Artistic Works. As you might imagine, a number of disappointed users sued the US government, arguing that according to the intent of the Copyright and Patent Clause of the American constitution once a work was in the public domain it could not be withdrawn from it. Last week the case was ruled on by the US Supreme Court in a 6-2 decision, Golan v. Holder, No. 10-545 [PDF]. Justice Ginsburg, writing for the majority, ruled that the law in question:

does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit.

As always, the SCOTUSblog is an excellent source for material surrounding the decision. To learn more about the musician, Lawrence Golan, who challenged the law, take a look at a couple of articles on the issue in The Chronicle: 1, 2.

The works affected in 1994, judged to number in the millions, are largely works by non-Americans that, as foreign works, were not as protected by copyright as were native works. The "recaptured" works included music by Prokofiev, Shostakovich, and Stravinsky; and:

books by H.G. Wells, Virginia Woolf, and C.S. Lewis; films by Alfred Hitchcock, Federico Fellini, and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso.

Canada ratified the Berne Convention in 1931, signed it in 1948, and acceded to current forms in 1970 and 1998.

English news sources reported yesterday that a three-judge panel of the High Court found Theodora Dallas, until recently a university lecturer in psychology, guilty of contempt of court and sentenced her to six months imprisonment. She will serve the first three in jail and "be on license" for the second three.

Dallas was on a jury trying a case of grievous bodily harm. The trial judge had given jurors clear instructions not to look up matters connected to the trial. At home, she searched the term "grievous bodily harm" and then put it in conjunction with "Luton," producing a result that showed the defendant had once been charged with (and acquitted of) rape. Dallas told other jurors during their deliberation what she had found in this way, with the consequence that, when this breach was reported to the trial judge, the trial was stopped.

A written judgment is not yet available online, so far as I can find. However, lengthy excerpts are available in a story in the Guardian. The story is also carried by the BBC, and The Register, among others.

This is not the first time an English court has dispensed a stiff penalty for disobeying instructions to a jury to stay off the internet. In June of this year a juror who used the internet to contact a defendant who had been acquitted earlier in the large trial was sentenced to eight months in prison.

As might be imagined, this case has once again raised concern and comment about the difficulty of conducting jury trials in this day and age of ubiquitous internet access. It will be difficult if not impossible, I suspect, to persuade obstreperous or "Bolshy" jurors that they mustn't do what they can so easily do in fact — and with little fear of getting caught if they keep their mouths shut.

One year ago I wrote about Brian Coldin, a naturist and owner of a nudist resort in Barrie, Ontario, who was charged with three counts of being nude in a public place and two counts of being nude and exposed to public view while on private property. As part of his defence, Coldin launched a constitutional challenge to the Criminal Code provisions against public nudity. He states that the Code limits his freedom of expression and is too broad.

On Thursday January 12, 2012, Justice Jon-Jo Douglas convicted Coldin on the three counts of being nude in a public place. Douglas upheld the constitutional validity of Canada’s public nudity laws stating, "requiring people to wear some modicum of clothing when in public is a reasonable limit." The judge found the law prohibiting nudity in a public place doesn't infringe on freedom of expression or the right to practise naturism.

On the other hand, however, the judge did state that aspects of the legislation that restrict nakedness on private property have little to do with the preservation of order and decency:

It is difficult to conceive how public order and decency is preserved by preventing people from going unclothed on private property even when they are visible to others."

Thus, Coldin was found not guilty on two counts of being nude and exposed to public view while on private property, the clothing-optional resort he operates in the Bracebridge area.

Coldin was sentenced to two years probation and $3,000 in fines.

In my last post, I asked: Is the law so outdated and imperfect that it should be re-examined by Parliament? The answer, from the Court at least, is: not yet!

To this end, the judge added:

Coldin's actions expressed "not much more than his desire to be publicly nude."

Attending at the pickup of Tim Hortons, of A&W, without one's pants expresses little meaning about naturism to others, and it is certainly not perceived as having important meaning."

Coldin may appeal. He and other naturists may look for support to Judge Douglas's comments about being nude on private property but visible to the public. But that's only a small part of what Coldin is seeking, and the Supreme Court doesn't seem likely to open up a wider debate on the topic.

I guess we'll just have to keep our eyes open and perhaps Coldin and his case will get more exposure. Of course, I doubt Coldin is so brazen in his protest at this time of the year in Barrie.

Summary

Historically actions around privacy stemmed from concepts of trespass in the common law, and were only recognized as cearly actionable where stipulated by statute. An Ontario Court of Appeal decision today, Jones v. Tsige, changed that by recognizing the tort of invasion of privacy.

The action arose between two employees in a bank who did not know or work with each other. The plaintiff had a common law relationship with the former husband of the defendant, and the defendant acknowledged looking at the plaintiff's bank information without just cause or reason on multiple ocassions.

The plaintiff claimed $70,000 for invasion of privacy and breach of fiduciary duty, and punitive damages of $20,000. The plaintiff moved for summary judgment, but the action was dismissed when the defendant was successful on the motion in claiming that there was no tort for breach of privacy in Ontario.

The Court of Appeal reversed the decision in part and awarded $10,000, recognizing a right of action for intrusion upon seclusion to reflect the changing needs of society.

Analysis

Sharpe J.A. wrote for the court, and accepted the proposition by William L. Prosser in his 1960 article, “Privacy,” that the common law actually developed four different types of related torts for breach of privacy:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

Sharpe J.A. determined that this case fell into the first category and restricted commentary on this cause to avoid deciding on issues beyond the facts before the court. After reviewing the case law on the subject, he concluded that Ontario courts were not far from recognizing a common law right to privacy and had been moving in that direction for some time.

In particular, he considered Euteneier v. Lee, which was relied upon heavily by the motions judge. Any references to privacy interests by the plaintiff in Euteneier were particulars of other causes of actions or consequences of the actions by the defendant, and for that reason it was considered an error to treat those allegations as causes of action that could stand alone.

Sharpe J.A. also discussed s. 8 Charter rights and identified three distinct privacy interests:

1. personal privacy
2. territorial privacy
3. informational privacy

Although the Charter would not necessarily apply to actions between private parties, Sharpe J.A. referenced Heenan Blaikie's John Craig and stated that it was consistent to develop the common law to reflect Charter values.

Finally, the court reviewed privacy legislation such as the Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Health Information Protection Act (PHIPA), the Freedom of Information and Protection of Privacy Act (FIPPA),the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and the Consumer Reporting Act, as well as privacy law and legislation in other jurisdictions.

The discussion about the pace of technology and the needs of the law to keep up with change was worth noting,

[67] For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Elements of the New Tort

The court adopted the wording of the American Restatement § 652B to define intrusion of seclusion, which was itself imported from Prosser,

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.

The court also referenced the comments to the Restatement to emphasize that non-physical forms of investigation were also included,

Comments:
a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

The court lay out the elements of this cause of action:

1. the defendant’s conduct must be intentional, including recklessness;
2. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

To ensure that intrusion of seclusion was not applied to broadly, the court defined the type of privacy interests that would be affected:

• financial or health records
• sexual practices and orientation
• employment
• diary or private correspondence that could be reasonably considered highly offensive

The court also noted that protections of freedom of expression and freedom of the press could provide valid defences where communication of facts are in the public interest.

Damages

Proving harm to an economic interest would not be required for this cause of action, but the court noted that because of the intangible interest being protected here that any damages would be modest. The court provided a helpful table of damages related to privacy interests in Ontario.

Appendix A: Ontario damage awards

Appendix B: Damage awards under provincial privacy legislation

Pending legislation always makes good fodder for lawyers to comment on in annual predictions articles. The pending anti-spam legislation has resulted in several such comments.

In my predictions article scheduled for publication next week, I comment that:

The Federal anti-spam legislation that was expected to be in force in 2011 is still waiting for regulations to be passed before coming into force. The draft regulations received a lot of criticism, and may be revised prior to the Act coming into force. The Act will be a compliance headache for many organizations, unless the regulations effectively narrow the broad definition of Spam. The Act is intended to provide tools to stop what we all understand to be spam. But the Act defines spam to include e-mails that many businesses or charities routinely send that the recipients probably would not consider to be spam.

Michael Geist predicts that in July:

Nearly one year after proposing anti-spam regulations, the government unveils modified regulations and seeks further public comment before the law takes effect. The new regulations establish a series of new exceptions to the law consistent with the demands of several marketing groups.

Barry Sookman has written a detailed analysis entitled Will it be illegal to recommend a dentist under Canada's new anti-spam law (CASL)?  in which he suggests that the legislation may indeed be that overreaching. It is worth a read to get a flavour for how complex this can get, and what the unintended consequences may be.

This legislation and its pending regulations merit a close watch this year. While its intentions are good, I believe it has the potential to waste far more time, money and effort for businesses and charities attempting to comply, than it will save by the amount of real spam it might reduce. And I'm not sure whether appropriate regulations can temper it sufficiently.

Another wrinkle is that the Supreme Court of Canada's December decision that said the proposed Canadian Securities Act was not within the legislative authority of Parliament has some wondering if the same fate might be in store for parts of the anti-spam legislation.

When the Ontario Superior Court of Justice released the decision in Kusnierz v. The Economical Mutual, the Law Times described it as raising the "ire of plaintiffs’ bar." Justice Lauwers' holding directly contradicted the practice in place since Desbiens v. Mordini of allowing motor vehicle accident victims to combine physical and psychological ratings to get a Whole Person Impairment (WPI) rating of 55% or higher to achieve a catastrophic designation under s. 2(1.1)(f) of the Statutory Accidents Benefits Schedule (SABS).

Although some defence counsel were confident that the decision would be upheld on appeal, the Ontario Court of Appeal reversed the decision on Friday, which have some predicting shockwaves through the industry.

Both the trial judge and the Court of Appeal agreed that the heart of the issue was an exercise in statutory interpretation. Justice Lauwers employed a purposive analysis, relying on the Court of Appeal's holding in Bapoo v. Co-operators general insurance, which instructs courts to use a modern approach that looks at a legislative provision in its total context. He acknowledged that a legislative gap could result in unfairness in eligibility for catastrophic impairment benefits, but indicated a highly deferential approach that this was best addressed through the legislature.

However Justice MacPherson of the Court of Appeal took a different position,

[26] The trial judge noted that the SABS legislator could have, but did not, expressly provide for the combination of physical and psychiatric injuries. With respect, the opposite is also true. The legislator could have, but did not, expressly forbid the combination of physical and psychiatric injuries. Without qualification either way, the plain language of cl. 2(1.1)(f) seems to suggest that combination of both kinds of impairment is possible.

MacPherson J.A. rejected Justice Lauwers' use of the implied exclusion approach to statutory interpretation, or “expressio unius est exclusio alterius." Randal Graham in his book, Statutory Interpretation: Theory and Practice, explains some of the problems with this maxim,

…the phrase “expressio unius est exclusio alterius" finds its way into countless court decisions. Unfortunately, many judicial references to this particular legal gem come in the form of cryptic warnings counselling against the use of the maxim.

…where a statute fails to mention a specific case or item, we may have grounds to presume that hte case or item was excluded on purpose rather than through the drafter's inadvertence.

…A well-founded application of the expressio unis maxim calls for some additional indication that the excluded ase or item was omitted by the drafter on purpose.

Graham continues to explain in Theory and Practice why the expressio maxim is often flawed. It presumes that legislative drafters never use extraneous language, and presumes "consistent expression," namely that the same word in different parts of the statute necessarily expresses the same idea.

In his compendium text, Statutory Interpretation: Cases, Text and Materials, Graham explains some of the background behind the admissibility of parliamentary materials,

If "legislative intent" is truly the key to statutory interpretation, it seems sensible that any materials generated during the debating, and enacting process should be admissible for the purpose of establishing the meaning of a statute… Surprisingly, the "parliamentary history" of an enactment… has traditionally been considered inadmissible for the purpose of proving the lawmaker's intention… Regardless of the many policies weighing against the use of parliamentary history in statutory interpretation, the traditional rule (requiring the exclusion of such evidence) has now been abandoned in Canada.
[See Rizzo & Rizzo Shoes Ltd. (Re)]

And yet the Court of Appeal expressly refused to review fresh evidence of the appellants on the legislative purpose of the catastrophic definition. Justice MacPherson applied the test in Palmer v. The Queen,

(1) The evidence should generally not be admit­ted if, by due diligence, it could have been adduced at trial…

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result.

Although transcripts of the hearings of the Standing Committee Report and the Legislative Assembly debates on Bill 59 were deemed credible by Justice MacPherson, they were not considered relevant, would not have affected the results, and could have been properly submitted at trial. Instead, he reviewed the use of impairment throughout the SABS and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”) and rejected the use of expressio in this context by noting a number of exceptions where "consistent expression" could not be demonstrated,

[30] In my view, the Guides’ examples are illustrative, rather than exhaustive. In at least five places, the Guides recommend that physicians refer to Chapter 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments. These recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account. There is nothing in the text of the Guides to suggest that this principle should be limited to persons with mammary gland or disfigurement problems. Accordingly, it seems to me that combining physical and psychiatric impairments can be done “in accordance with” the Guides.

Given the significance of this decision we can expect to hear quite a bit more on it, and possibly see legislative changes clarifying some of the ambiguity in the SABS in the future. Here are some of the summaries and commentaries of the appellate decision to date:

• Oatley, Vigmond (interveners in the case, on behalf of the Ontario Trial Lawyers Association (OTLA))
• Smitiuch Injury Law
• Thomson Rogers
• Daniel Strigberger of Miller Thomson at the Ontario Insurance Litigation Blog
• Alexander Rozine of D'Angela, Fox, Vanounou LLP at Canadian Health Law (a new site I just launched)

The judgment of the Supreme Court of Canada in the Reference re Securities Act 2011 SCC 66 has just been released. The opinion of the Court—a single judgment—finds, in sum, that:

This is not a case of a valid federal scheme that incidentally intrudes on provincial powers. It is not the incidental effects of the scheme that are constitutionally suspect; it is rather the main thrust of the legislation that goes beyond the federal power. . . .

The Securities Act as presently drafted is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867.

In paragraph 132 (underlined in the online version at scc.lexum.org) the Court offers advice:

It is not for the Court to suggest to the governments of Canada and the provinces the way forward by, in effect, conferring in advance an opinion on the constitutionality on this or that alternative scheme. Yet we may appropriately note the growing practice of resolving the complex governance problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts.

This will be a serious blow to the federal government and, quite likely, to other legislation that walks close to the line of provincial powers, such as PIPEDA perhaps. It leaves Canada as one of the few countries in the world without a single, national act regulating securities.

This entry merely reports the fact of the release of the opinion and its conclusion. We'll do a follow-up soon, collecting the views of commentators from around the country.

Subjective top ten lists are great for starting arguments given the improbability of any two people sharing precisely the same worldview. It's a little tougher to engender heated debate over objectively measured top ten lists, but not impossible. After all, we can still dispute methodology and relevance! I invite Slaw readers to infer meaning and to offer analysis of the results.

So with that, I'm pleased to present for 2011 the top 10 most consulted cases on CanLII.

1. Bruni v. Bruni, 2010 ONSC 6568
2. Indalex Limited (Re), 2011 ONCA 265
3. Dunsmuir v. New Brunswick, 2008 SCC 9
4. Bedford v. Canada, 2010 ONSC 4264
5. R. v. Grant, 2009 SCC 32
6. Kerr v. Baranow, 2011 SCC 10
7. R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103
8. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
9. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817
10. Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217

Bruni rated 18,641 views and the Secession Reference came in at 5,105.

To get a sense of scale, compare these numbers with the 1000^th most consulted case – which still attracted nearly 500 views.

Graphically, the results of the top 1000 most consulted cases present as a "long tail" (or for the mathematically inclined, as an asymptote).

(Click on image to enlarge)

Among cases actually decided in 2011, the top 10 looks like this:

1. Indalex Limited (Re), 2011 ONCA 265
2. Kerr v. Baranow, 2011 SCC 10
3. JM (Re), 2011 CanLII 7955 (ON CCB)
4. Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196
5. United Food and Commercial Workers' International Union, Local 1518 v. British Columbia (Labour Relations Board), 2011 BCSC 455
6. Voltage Pictures LLC c. Untel, 2011 CF 1024
7. Ontario (Attorney General) v. Fraser, 2011 SCC 20
8. R. v. J.A., 2011 SCC 28
9. Ontario Korean Businessmen's Assoc. v. Seung Jin Oh, 2011 ONSC 6991
10. Withler v. Canada (Attorney General), 2011 SCC 12

Indalex amassed a remarkable 17,433 views and Withler a respectable 2,825.

The graphical representation of the top 1000 among cases decided in 2011 is indistinguishable from the above chart (save for the Bruni peak). The honour of 1000^th most consulted case falls to Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2011 ABCA 29 with 341 views.

Background and miscellanea: 

• CanLII's operations have been continuously funded by Canada's provincial and territorial law societies (and by extension, Canada's lawyers and notaries) since 2000 to allow legal professionals and the public to access primary legal information at no direct cost.
• CanLII's database contains over 1 million documents and is on track to a record year of receiving nearly 7 million visits and delivering over 80 million page views
• While most documents on CanLII are decisions of courts and tribunals, page views of legislation and regulation outstrip page views of cases by a sizeable margin. For example, monthly Criminal Code page views exceed 20,000 and monthly views of the Code civil du Québec exceed 15,000.
• CanLII is widely used by the legal profession (over 95% of lawyers responding to our fall mini-survey reported at least weekly use), but as a freely available tool its non-lawyer users are legion. Monthly unique visitors are routinely over 200,000. Consequently, the results might be considered a barometer of public interest, as well and possibly more so, than as one of legal significance.
• A "view" or "consultation" of a document is measured as the interaction of an individual with the case URL. Mere appearance of a case in a list of search results will not constitute a view, but opening it to inspect it will. Similarly, where a user subscribes to RSS feeds and a case appears in the list, the case view does not take place until it is opened.
• Results above aggregate views for a given decision across formats (PDF or HTML) and across French and English.
• No French language case cracked the overall top 10, but one, Voltage, ranked among decisions issued in 2011. Originally issued in French, and subsequently released in English as well, French language views alone would have placed this case at number 7
• Standings measured as of December 20^th. If it turns out that thousands of Canadians spend the holidays reviewing the December 22^nd SCC decision on the Securities Reference, I will gladly update the list accordingly so that historians might have an accurate record of the case law that most concerned Canadians in 2011.

Here's the scenario: you're retained to argue an appeal in the tough U.S. Court of Appeals for the 7th Circuit; there's a precedent from that very court that appears clearly to stand in your way; you're about to prepare your brief for filing. What do you do about the obstinate precedential obstacle?

I'd be willing to be that if you took a poll of appellate advocates, something on the order of 99.4 percent of them would say that, whatever you do, you don't just ignore it. But that's exactly what counsel did in Gonzalez-Servin, et al. v. Ford Motor Company, et al. (No. 11-1665, Decided November 23, 2011 [PDF]), decided together with another similar case. And, as luck would have it, the case drew Judge Posner, noted, among other things, for his willingness to speak out plainly about what he sees as mistakes.

And speak he did.

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. . . .

[M]aybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable. The ostrich is a noble animal, but not a proper model for an appellate advocate.

Whereupon he included in the opinion a pair of photographs that graphically reinforced his point — and, I'd say, revealed what in his view was the most obvious feature of the counsel involved.

Of course, Posner being Posner, hastened to inform us that ostriches don't really stick their heads in the sand. Then he singled out the counsel by name. Ouch.

[Hat tip: Joel Kohm]

The Supreme Court of Canada announced today that judgment in the National Securities Regulator Reference will be delivered at 9:45 a.m. EDT on Thursday, December 22, 2011. That's In the Matter of Section 53 of the Supreme Court Act, R.S.C. 1985, C. S-26 and in the Matter of a Reference by the Governor General in Council concerning the proposed Canadian Securities Act, as set out in Order in Council P.C. 2010-667, dated May 26, 2010 (33718)

We'll link to it and commentary when it comes down.

Perhaps the word "Judgment" implies that it will be the decision of the Court, as a whole. No individual judgments, like Chief Justice Dickson's in National City Leasing to cause uncertainty.

For those who missed them the hearing webcasts are here and here

We have discussed Arizona’s controversial new anti-immigration measures several times on Slaw (e.g., here, here and here). Besides appearing to discriminate against various groups, the measures conflict with federal immigration laws and policies. Well, the saga is not yet over. On December 12, 2011, the New York Times announced that the United States Supreme Court agreed to decide whether Arizona may impose such tough anti-immigration measures. The measures include:

• Requiring police officers to determine the immigration status of people they stop for a violation of any law if the officers think the persons are in the country illegally
• Requiring people to carry their identification papers at all times in public places
• Making a crime of failure to apply for valid immigration papers
• Requiring everyone who is arrested to have their immigration status checked with the federal government before release
• Allowing police officers to arrest anyone they believe has committed a crime that would make them removable from the country
• Making it a crime for illegal immigrants to apply for or perform any work

The US Ninth Circuit Court of Appeals in San Francisco previously stopped the above provisions from coming into force.

Paul D. Clement, representing Arizona, urged the Court to hear the case, Arizona v. United States, No. 11-182, by stating:

The law did not conflict with but, rather, complemented federal policies. The Ninth Circuit’s decision had completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a state with a 370-mile border with Mexico.

We shall see whether the Supreme Court agrees with Mr. Clement.

According to yesterday's news (see here for an article from the National Post), the government of New Brunswick will be asking the Supreme Court of Canada to look into the status of its language laws as it appeals the decision of its appellate court upholding the decision of a provincial judge who excluded breath-sample evidence of a suspected impaired driver pursuant to s. 24(2) of the Canadian Charter of Human Rights and Freedoms because his language rights had been violated (see R. v. Losier, 2011 NBCA 102 (CanLII)). Indeed, in that case, a police officer only offered the suspected impaired driver the right to be served in French thirty minutes into his detention, which was found to be contrary to the province's language laws. A similar defence has been raised in a number of New Brunswick cases already. The province seeks a decision on whether or not a Charter remedy can be used for the breach of a provincial law, in this case, New Brunswick's Official Languages Act.

Living and working in a province in which language rights are an extremely sensitive topic, this news is particularly interesting considering the impact any Supreme Court decision could have on language rights in Canada. Should the Supreme Court accept to hear this appeal, it looks like it will ultimately be asked to weigh in on the appropriate balance between the protection of language rights and the protection of the public.

We read from time to time that Internet defamation is worse than that in other media because of its global reach and persistence over time. Thus the Ontario Court of Appeal in Barrick v Lopehandia 2004 CanLII 12938 issued an injunction against further defamation, in part because of the Internet’s character as “potentially a medium of virtually limitless international defamation” (the Court quoted Matthew Collins, The Law of Defamation and the Internet.) The court (by majority) also increased fivefold the damages awarded at trial, for similar reasons.

Recently the British Columbia Supreme Court granted ex parte injunctions against publication of defamatory material. Nazerali v Mitchell 2011 BCSC 1581 (CanLII) (and against any transfer of domains or material that might facilitate the spread of the libel). See a comment on the case here.

On the other hand, the Ontario Superior Court recently held in Baglow v Smith 2011 ONSC 5131 (CanLII) that comments on a blog should not necessarily give rise to a claim in defamation, when the person alleging defamation has a right of reply in the same blog. The readers are expecting a reply, not a lawsuit, said the Court. It was not appropriate for a participant in a comment thread to go off to court, dropping out of the debate. One can ‘remove the sting’ by responding. The judgment quotes Justice Binnie in the SCC’s WIC Radio decision on fair comment, that public controversy can be a rough trade, and the law needs to accommodate its requirements.

Are the rules about what one can or should say online different from those that apply in print? Should one be compelled to defend oneself online? Are insults less defamatory there (here)?

Can a copyright owner enforce his rights in small claims court? The answer varies depending on which side of the 49th parallel you are on. In Canada, yes! In the U.S., no. Perhaps this is about to change. The U.S. Copyright Office is accepting submissions from the public until 16 January 2012 on remedies for copyright infringement suits in small claims courts. U.S. Congress has asked the Copyright Office to investigate and seek comment on how small copyright claims have been managed in the past and to outline recommendations for changes and alternatives to current procedures.

This is not the first time this issue has arisen in the U.S. A report was tabled by the Copyright Office to the U.S. House of Representatives, 109^th Congress, 2^nd session on March 29, 2006. As part of their investigation of orphan works, the question of alternative mechanisms for pursuing copyright infringement cases was brought forward by photographers who had no resources to sue in federal court. In this report, the U.S. Copyright Office agreed to study the issue and to report to Congress the findings as to whether and to what extent copyright holders have been hindered from pursuing legal action and if the current system is not effective, what changes in law would be necessary. The report also outlined seven topics for information collection and also indicated four alternatives which might be available.

The advantage of small claims court is that it is often speedier than other courts and costs can be minimized since plaintiffs often represent themselves without the aid of a lawyer. You are only eligible to sue in small claims court if the monetary compensation being claimed is within a certain limit. For example, this amount is $25,000 in Ontario.

Last April, David Canton noted an Alberta Court of Appeal decision that Leon's Furniture was justified in collecting licence plate information from people picking up furniture at the store. The AB CA held that the licence plate number was not personal information.

Recently the Supreme Court of Canada refused leave to appeal, a decision that disappointed some privacy authorities.

Are licence plate numbers like Internet Protocol addresses (at least in the eyes of the federal Minister of Justice), in that they point to a machine and not to a person, and a machine that may be used by more than one person? A licence number is also visible to anyone who looks at the car to which it is attached, so what expectation of privacy can one have about it?

Some debate is possible whether a licence plate number is personally identifiable information, in the term used by PIPEDA. Does it depend on how hard one must work at identification? While on the surface, in a one-step analysis, the number does not necessarily relate to a particular individual (though it might, if only the single owner ever drove the car), these days there are a lot of big data bases around, and it would not take too many analytic steps (or snooping) to find other references that might allow one to figure out the individual to whom the information relates.

Some people have figured out how to identify the real people behind even apparently anonymized data.

It may be helpful separating the question whether a licence number is personally identifiable information, on the one hand, from whether Leon's was justified in asking for it, on the other. I don't have a problem with the store's asking for that kind of identification from someone picking up goods, especially on behalf of someone else. How does one explain to the real purchaser that one has delivered his or her goods to a fraudster without keeping any means of tracing that person?

For whatever reason, the SCC has declined to set the law right, for the moment. Or is it right already?

The Supreme Court of Canada has agreed to hear the Indalex Limited case, which will determine if underfunded pension plans should be treated as a priority when it comes time to liquidate the assets of a bankrupt company.

Although the case deals first and foremost with duties and priorities under the Ontario Pension Benefits Act (PBA) and corporate insolvency under the Companies’ Creditors Arrangements Act (CCAA), the Supreme Court’s pending decision has ramifications for organizations, creditors (lenders) and pension plans across Canada.

This appeal stems from the decision of the Ontario Court of Appeal back in April 7, 2011, on a priority dispute over the proceeds from the sale of the assets of Indalex Limited. The asset sale was approved by the Ontario Superior Court of Justice under the CCAA. However, the United Steelworkers (USW), which represented Indalex’s unionized workforce and certain pension beneficiaries, and a group of former executives receiving pension benefits, argued that Indalex’s obligation to fund its pension wind-up deficiencies ranked higher in priority than Indalex’s obligation to repay its debtor-in-possession (DIP) financing. In holding for the USW and the former executives, and departing from earlier case law, the Ontario Court of Appeal gave priority for the entire wind-up deficiency of two pension plans over the secured DIP lender’s security.

The decision provides that in some cases pension funding obligations can rank ahead of DIP security and security on working capital assets of an organization, and that organizations have a duty to plan members to keep them informed of key steps in financial restructurings, to serve them with formal notice of proceedings in CCAA cases, and to defend the priority provided by the PBA to pension claims over other creditor claims. The decision also suggests that organizations should relinquish administration of a plan when insolvency is clearly in sight.

Madam Justice Gillese, writing on behalf of the Court of Appeal, held that:

The entire amount that an employer is required to contribute to fund a pension plan wind up deficiency under the Ontario Pension Benefits Act is subject to the deemed trust provisions of the PBA and, in the circumstances, the amount subject to the deemed trust should be paid in priority to outstanding secured creditor claims.

The Appeal Court decision notes, however, that there may be some situations where creditors must take precedence over the pension, but this should be decided case by case.

Since the Court of Appeal decision, many insolvency, pension and financial services professionals are debating the result. It has created considerable uncertainty over the priority status afforded to pension plan wind-up deficits, particularly in insolvency proceedings involving the plan sponsor, and the effects on availability of credit for all organizations that provide defined benefit pension plans for their employees. Lenders want certainty that their interest in the company’s property takes priority over other entities, including the pension funds.

Thus, the appeal to the Supreme Court of Canada for clarification.

Hopefully, the Supreme Court of Canada will clarify the scope and application of the PBA deemed trust and provide guidance to organizations and lenders in circumstances similar to Indalex. It is expected that the Supreme Court of Canada will hear the case sometime in late 2012.

As IPPractice.ca says, this is "Copyright Week at the Supreme Court of Canada":

The Supreme Court of Canada provides copies of the factums for the parties and interveners on its website. They also will be live broadcasting the oral arguments. The following table contains links to the factums and live webcast links for each proceeding.

 

Case	Likely Schedule	Webcast	Factums
33921 – online games	Tuesday AM	webcast	factums
33922 – communication to the public	Tuesday AM	webcast	factums
33800 – previewing music	Tuesday PM	webcast	factums
33888 – Access Copyright	Wednesday AM	webcast	factums; additional factums at Howard Knopf's blog
34210 – Re: Sound	Wednesday PM	webcast	factums

Howard Knopf has some excellent commentary at Intellectual Property Watch.

A Twitter search for "copyright" reveals that there is a who's who of copyright nerds (not my words) at the SCC today, but according to Colin Lachance, phones must be off. Unfortunately, Angelina Jolie was sued for copyright infingment according to yesterday's Hollywood Reporter so that is clouding the twitter stream. Tweets to watch come from @russellmcormond, @mgeist.

For Ontario lawyers a significant decision this morning of importance to civil litigators on the new rules concerning summary judgments.

Five cases decided together raise a number of issues concerning the interpretation of the new Rule 20, including the nature of the test for determining whether or not summary judgment should be granted, the scope and purpose of the new powers that have been given to judges hearing motions for summary judgment, and the types of cases that are amenable to summary judgment.

The grouped appeals are from decisions of the Superior Court of Justice under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which is the rule governing motions for summary judgment. Rule 20 was amended on January 1, 2010 by a package of amendments to the Rules of Civil Procedure. The amendments followed the release of the report of the former Associate Chief Justice of Ontario, the Honourable Coulter A. Osborne, Q.C., entitled Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007). The appeals raise various issues concerning the interpretation and application of the amended Rule 20. A five-judge panel of the Court of Appeal for Ontario, composed of Chief Justice Winkler and Justices Laskin, Sharpe, Armstrong and Rouleau, heard these five appeals on June 21, 22, and 23, 2011.

It is an example of a court taking a cluster of cases and deciding them together to arrive at common principles. The first 39 pages of the judgment are devoted to general analysis and conclusions, before the five cases are even discussed. The court refers to what it calls the full appreciation test:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?

The court's 111 page judgment will repay close reading. Its conclusions were summarized here:

Three types of cases where summary judgment may be granted.

The first is where the parties agree to submit their dispute to resolution by way of summary judgment.

The second class of case is where the claim or defence has no chance of success. A… judge may use the powers provided by rules 20.04(2.1) and (2.2) to be satisfied that a claim or defence has no chance of success. The availability of these enhanced powers to determine if a claim or defence has no chance of success will permit more actions to be weeded out through the mechanism of summary judgment. However, before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test.

The amended rule also now permits the summary disposition of a third type of case, namely, those where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1). In deciding whether to exercise these powers, the judge is to assess whether he or she can achieve the full appreciation of the evidence and issues that is required to make dispositive findings on the basis of the motion record – as may be supplemented by oral evidence under rule 20.04(2.2) – or if the attributes and advantages of the trial process require that these powers only be exercised at a trial.

Finally, we observe that it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1). And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.

What do you do when a website claims that you are an international criminal kingpin, and it's affecting your business?

Altaf Nazerali, the plaintiff in Supreme Court of British Columbia decision Nazerali v. Mitchell, discovered a number of articles about him on a website, Deep Capture, including allegations of arms trading, ties to the Iranian regime, and that he was part of a criminal enterprise with ties to the Italian and Russian mafias and Colombian drug cartels. The website even claimed he attempted to sell enriched uranium to Al-Qaeda.

The plaintiff was actually in the business of founding, promoting and investing in companies. He dealt with a number of various business partners and investors, and considered his reputation was essential. Several business contacts had searched his name on Google and came across the material, obviously raising some serious concerns.

Background

On September 6, 2011, he contacted the defendant, Mark Mitchell, who wrote the articles on the website, denying he had even been to several of the places mentioned in the article. Mitchell's response was,

Please note, though, that I mentioned in the story that the descriptions of the meetings were composites of multiple meetings with true locations disguised to hide the identity of sources. So whether you travel to those places is not necessarily important.

My goal, when I first set out to write the story was not to make problems for you. I simply found your life story to be fascinating and tried to learn more. My research led me down the path that resulted in the story that you read on the Internet. I do think the facts are right, but again, I am open to making changes or deletions if it results in a better story that is true.

On September 9, 2011, Mitchell stated,

As for the ongoing Deep Capture investigation, I think that you have seen a lot and can be helpful. One reason why I should have gotten in touch earlier. If you think you are able to provide meaningful information, please let me know, and please give me a general idea what that information would be and how I would be able to substantiate it.

I do not reveal the names of my sources so if you were to become a source, I would be obliged to remove all previous mentions of your name on Deep Capture. Like I said, some facts are more interesting than others, and I'd gladly take your name out of the story altogether in exchange for having you as a source. Let me know what you think.

Despite this no changes were made to the website, so the plaintiff brought an ex parte injunction against:

• Mark Mitchell, the author of the posts
• Patrick Byrne, the founder of the website
• Deep Capture LLC, who operates the website
• High Plains Investments LLC, which owns Deep Capture LLC, and is operated by Patrick Byrne
• Godaddy.com Inc., the domain register of deepcapture.com
• Nozone, Inc., the host of the website, holding the servers with the electronic files in dispute
• Google Inc. and Google Canada Corporation for search results and page caches

Surprisingly the defendants involved appear to be reputable journalists. According to archives of the website, Mitchell has an MBA from Northwestern University and work experience at the Wall Street Journal and Time magazine, and Byrne has a doctorate in philosophy from Stanford University, with teaching experience at a number of different institutions.

Basis for Injunction

Justice Grauer indicated the plaintiff needed to meet two requirements for an ex parte injunction:

1. The plaintiff must demonstrate that requiring service of process on the defendants would defeat his rights
2. The plaintiff must "establish that the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse"

Grauer J. cited the Ontario Superior Court decision in Canadian National Railway Company v. Google Inc. to support the proposition that a higher hurdle would normally be needed than the normal three-part test in R.J.R. McDonald Inc. v. Canada Attorney, where a plaintiff must simply show there is a serious case to be tried.
Justice Lederer in CNR Co. cited several cases for this basis, including Canada (Human Rights Commission) v. Canadian Liberty Net, Rapp v. McCelland & Stewart Ltd., and Henderson v. Pearlman. He stated,

[8] It is not easy to obtain an injunction in response to defamation. We respect the principle of freedom of speech and are careful when asked to limit the freedom of anyone to express their views. This concern for the freedom of expression is itself expressed in the following:

The granting of injunctions to restrain publication of alleged libels is an exceptional remedy granted only in the rarest and clearest cases. That reluctance to restrict in advance publication of words spoken or written is founded, of course, on the necessity under our democratic system to protect free speech and unimpeded expression of opinion. The exceptions to this rule are extremely rare.

(Canadian Metal Co v. Canadian Broadcasting Corp. (1975), 7 O.R. (2d) 261, 55 D.L.R. (3d) 42 at p. 261 quoted in Mcleod (c.o.b. Malask Mcleod Gallery) v. Sinclair, [2008] O.J. No. 5242 at para. 19)

In this context, Justice Grauer noted in obiter that the increased stringency for injunctions in this context was intended to protect freedom of expression, and developed to prevent something from being published. Where the issue was the continued existence of articles on the Internet the stringency should be relaxed.

Justice Lederer in CNR Co. also cited the Ontario Court of Appeal in Barrick Gold Corp. v. Lopehandia to demonstrate the unique factors involved with Internet defamation,

The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect the geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation. [cite: Matthew Collins, The Law of Defamation and the Internet (Oxford University Press, 2001), at para. 24.02]

…

[28] Is there something about defamation on the Internet – “cyber libel”, as it is sometimes called – that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is “Yes”.

…

[34] It is true that in the modern era defamatory material may be communicated broadly and rapidly via other media as well. The international distribution of newspapers, syndicated wire services, facsimile transmissions, radio and satellite television broadcasting are but some examples. Nevertheless, Internet defamation is distinguished from its less pervasive cousins, in terms of its potential to damage the reputation of individuals and corporations, by the features described above, especially its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility. The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases.

Decision

Justice Grauer held that the words involved in the articles were so manifestly defamatory as to meet the higher threshold, and that the plaintiff met the other tests for an interlocutory injunction.

[15] …The plaintiff's reputation is indeed likely to suffer irreparable harm. A damaged reputation is almost impossible to rehabilitate, particularly when the instrument of damage is the worldwide web. If however, the defendants ultimately succeed, I expect they will have no difficulty at all in resuming their exposé.

Justice Grauer then continued to consider the appropriateness of this type of injunction being granted on an ex parte basis,

[18] The plaintiff's position in this regard is based largely upon the technological ease with which those who carry on Internet campaigns can evade attempts to intercept them. The plaintiff submits that if he were obliged to provide notice to all the respondents to this application, then the principal defendants, Mr. Mitchell and Deep Capture LLC, would simply transfer their domain name and website files elsewhere, and carry on what would possibly be an even more aggressive campaign of defamation, or create a parallel website under a different name so as to make the tracking down and removal of the defamatory articles almost impossible.

[19] While there is no reason to suppose that the defendants Godaddy.com, and Nozone, Inc. would do anything to evade enforcement, they would naturally tell their client of any notice given to them, and would not be in a position to prevent any steps taken by Mr. Mitchell and Deep Capture.

[20] I am satisfied on the evidence before me, particularly given the attitude demonstrated by Mr. Mitchell in his communications with Mr. Nazerali, that requiring the plaintiff to give notice to the respondents of this application would likely render the relief he seeks ineffective, and that it is appropriate in the circumstances for this application to be heard without notice.

Justice Grauer expressed some reluctance against enjoining Google Inc., and Google Canada corporation from returning any search results from www.DeepCapture.com because it would effectively shut down the website entirely, but stated,

[23] I note however that it is impossible surgically to eliminate just the offending phrases. Given the pervasive nature of the material concerning the plaintiff throughout the contents of deepcapture.com, the plaintiff's undertaking as to damages and the temporal limit I have placed on the injunctive relief I am granting, I have concluded on balance that it is appropriate to grant the relief sought in relation to Google Inc. and Google Canada as well. Not to do so might well rob the plaintiff of the value of the relief he has obtained against the other respondents.

Given that the injunction was ex parte, Justice Grauer also granted that the injunctions would expire on December 2, 2011, unless notice was provided to the defendants and extended further by the court. Justice Grauer also noted the right of the defendants to set aside the injunction on two days notice.

Despite the expiration of the injunction earlier this week, Deep Capture still does not appear to be functioning, and no search results from the site are available. What is fascinating about this decision is the ability to deal with cached copies of pages, something discussed extensively here on Slaw before. However, copies of the website are still available on the Way Back Machine.

The injunction sought here also effectively prevented the defendants from transferring the allegedly defamatory material to another server or domain, a broader approach than what has historically been used in online defamation cases, but one which arguably better protects the plaintiff's rights.

An English (and Welsh) court has held that Google, as owner of Blogger.com, is not liable for defamation posted to a blog, even after the subject of the defamation gave notice that the post was defamatory. Google passed on the allegation to the blogger, who told Google the original post was true. The court said that Google was not in a position to adjudicate between the two claims (lies vs truth). The plaintiff still had her remedy against the blogger(s).

The case is Davison v Habeeb et al (including Google), [2011] EWHC 3031 (QB). A story about the case is on outlaw.com.

Is this a reasonable application, or extension, of the ‘innocent disseminator’ defence, that the disseminator can remain innocent even with knowledge of the alleged defamation, if it acts reasonably in response to its knowledge?

Is it parallel to what has been proposed for copyright violations in Canada (though not currently in Bill C-31 SFAIK), a ‘notice and notice’ procedure?

This is another follow up to a previous Slaw post regarding IQT’s closure. In partnership with the Ontario Ministry of Labour (MOL), the Commission des normes du travail (CNT) and Revenu Québec (MRQ) filed a petition at the courthouse in Trois-Rivières to have IQT Ltée declared bankrupt under the Bankruptcy and Insolvency Act. This measure is designed to enable 163 former employees of the call centre in Trois-Rivières, and 400 former employees of the call centre in Oshawa, to avail themselves of the federal Wage Earner Protection Program (WEPP). The petition will be heard on December 20, 2011.

In addition to the petition to have IQT Ltée declared bankrupt, the Commission des normes du travail and the Ontario Ministry of Labour are continuing to manage the issue, which includes supporting the employees in their application to the WEPP. Revenue Quebec is trying to recover public funds awarded to IQT under a job creation program and unpaid taxes.

In the event IQT’s bankruptcy is pronounced, the former call centre workers could receive compensation of up to $ 3,400. The compensation would cover the salaries and vacation and termination pay not paid.

The European Court of Justice issued its breathlessly awaited (at least by some) decision in SABAM v. Scarlet today, striking a serious blow to those imposing intense international pressure with the objective of securing exceptional enforcement for intellectual property rights online. These efforts aim to leverage Internet intermediaries such as ISPs, hosting sites, domain name registrars and even individual blogging sites in order to stomp out any infringing activity occurring on the platforms they operate.

As these intermediaries process and host vast amounts of online conduct, they are uniquely placed to impose unprecedented levels of monitoring and control onto users in order to find and prevent ‘undesirable’ activity. A number of recent endeavours such as the French HADOPI framework and the US proposed ‘Stop Online Piracy Act’ initiative have sought to force various intermediaries to participate more actively in protecting intellectual property rights. Often this involves mechanisms to wipe (allegedly) infringing sites or users from the Internets. Many have argued this poses a threat to online innovation, freedom of expression and privacy.

In SABAM, the EU Court of Justice examined a narrower question that nonetheless touches on many of these same issues and the overall ‘balance’ between the need to protect IPRs while ensuring other rights are not trampled in the attempt to do so. SABAM, a rights holder group, had asked the Belgian court to issue an injunction obligating an ISP, Scarlet, to filter all unauthorized peer-to-peer file-sharing transfers of its works. The EU has an overarching legal framework, set out in a number of Directives, that provide guidance on the appropriate scope of liability for Internet intermediaries. Most salient for this case, the EU intermediaries frameworks permits a court to issue injunctions as a remedy for IPR infringement. The Belgian court that first heard the matter was willing to issue such an injunction and this ruling constitutes Scarlet’s appeal to the EU Court of that decision.

The injunction in question would have required Scarlet, the ISP, to monitor all activity on its network, filtering for hash tags of files identified as within the repertoire of the plaintiff. While the technical feasibility of this filtering exercise has been questioned, the Court rested its decision to overrule the Belgian court’s injunction on firmer, more principled grounds. Specifically, the Court found that an injunction of this character violates the rights to privacy and potentially the right to receive or impart information:

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently, it must be held that, in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.

The Court also issued a friendly reminder that, while protection of Intellectual Property is a right protected by the EU Charter, there is “nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.”

Notably, the decision equates ‘filtering’ — where network equipment such as deep packet inspection equipment is calibrated to search for specific files or activities, in this case, likely hash tags — with mass monitoring of user activity. Common counter arguments to this are that ‘filtering’ does not involve mass surveillance, because only the specifically sought infringing activity is identified, while little or no information about other activity is collected. The Court appears to accept, however, that mass monitoring for infringing activity is a serious invasion of privacy even where the only results it yields are to identify infringing works.

Second, the decision is notable in that it recognized the threat to freedom of expression posed by a filtering system of this kind, which is likely to capture legal content along with allegedly infringing content. Indeed, as the Canadian experience has proven, identifying specific files or even applications mid-network while avoiding over-inclusiveness is no easy task! It is greatly complicated where user rights such as fair dealing or fair use complicate what is ‘legal’ and what is not.

The decision is not likely to be the last word on the issue. US legislatures are struggling with a law that will permit entire domain names to be wiped from the DNS system on allegation of IP infringement and it is not clear how this decision will impact on France’s HADOPI ‘3 strikes and you’re out’ system, or on the UK Digital Economy Act’s objective of implementing a similar graduated response regime (the UK act is also under court challenge).

The decision could have implications for Canadian copyright enforcement. While Canadian copyright law (inclusive of coming amendments in Bill C-11, the Copyright Modernization Act), does not envision liability for ISPs for infringing activities of users such as file-sharing, injunctions against ISPs similar to that raised in SABAM are available under Canadian law.

Given our Court’s recent willingness to take into account Charter rights in the development of common law protections in general, there is hope that freedom of expression and privacy will guide any application of this injunction power. Further, as intellectual property rights (or even regular property rights) are excluded from our Charter, countervailing rights of expression and privacy should weigh more heavily in the balance than in the EU.

While many of our ISPs already track use of file-sharing applications voluntarily, in order to carry out their traffic management policies, this should not mean privacy expectations are diminished in any way. To begin with, the type of monitoring envisioned in SABAM is more intrusive than that currently carried out by Canadian ISPs. Current ISP practice is to filter for metrics in order to identify specific applications (BitTorrent clients, for example) while SABAM required filtering of specific files. (The middle case — filtering to block an entire website or service such as Pirate’s Bay or Newzbin2 deemed to be ‘infringing’, has been tentatively approved by UK courts.) Second, the CRTC, in carrying out the privacy-protection component of its mandate, has ordered Canadian ISPs to refrain from using information gained from traffic management practices for any other purpose. These two conditions, taken together, should bolster privacy expectations Canadians can reasonably advance in this context, if the issue were to arise.

Second, our Supreme Court has a solid track for protecting online innovation and freedom of expression and adopting a balanced approach to copyright enforcement.

Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728

[1] The appellant, Father Hart, is an ordained Roman Catholic priest. In 2004, the respondent … appointed Father Hart pastor to a church … for a renewable six-year term.

[2] In 2006, the Archdiocese became concerned about Father Hart’s business relationship with …. and about irregularities in parish finances. The Archdiocese proceeded to issue three decrees to Father Hart. In July 2006, it placed him on administrative leave. In May 2007, it suspended his faculties to exercise sacramental ministry. Then in June 2008, the Archdiocese removed Father Hart from office.

[3] Under canon law Father Hart could have appealed each of these three decrees. He chose not to do so. Instead, he brought this action for damages for constructive dismissal.

[4] The Archdiocese brought a motion under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43, and rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to stay Father Hart’s civil action on the ground that the court had no jurisdiction over his claim. The Archdiocese contended that its relationship with Father Hart was ecclesiastical in nature, and governed by canon law. Father Hart was therefore required to seek redress, not through the courts, but through the internal review process provided by canon law.

[5] The motion judge, Beaudoin J., agreed with the Archdiocese’s contention. He stayed Father Hart’s action as an abuse of process. He gave detailed reasons in which he concluded at para. 45:

The essence of the claim between Father Hart and the Archdiocese is ecclesiastical in nature and this court has no jurisdiction over that dispute. Moreover, the internal processes that are designed to deal with that dispute do not offend the principles of natural justice and Father Hart has not exhausted the internal processes available to him. For these reasons, these proceedings constitute an abuse of process and are stayed.

[6] On his appeal, Father Hart makes three submissions:

(1) The motion judge erred by making findings of fact on disputed issues;

(2) The motion judge erred in holding that the Superior Court of Justice has no jurisdiction over Father Hart’s claim; and

(3) The Archdiocese treated Father Hart unfairly because it refused his request for a hearing.

[7] I do not agree with these submissions. In my view, Beaudoin J. correctly decided this motion. I would therefore dismiss Father Hart’s appeal.

…

[29] I agree with the motion judge that the Superior Court of Justice has no jurisdiction over Father Hart’s claim. …

[17] As a general rule, the Superior Court of Justice has jurisdiction to adjudicate claims of wrongful dismissal and breach of an employment contract. But the general rule has exceptions. One well recognized exception is where the essential character of a dispute between an employer and an employee arises from the interpretation, application, administration, or violation of a collective agreement. Those disputes must be resolved by arbitration, not by an action in the court: see Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

[18] A second exception is where the rules of a self-governing organization, especially a religious organization, provide an internal dispute resolution process. A person who voluntarily chooses to be a member of a self-governing organization and who has been aggrieved by a decision of that organization must seek redress in the internal procedures of the organization: see Levitts Kosher Foods v. Levin (1999), 45 O.R. (3d) 147 (S.C.).

[19] The courts will interfere in the internal affairs of a self-governing organization in only two situations: where the organization’s internal processes are unfair or do not meet the requirements of natural justice; or where the aggrieved party has exhausted the organization’s internal processes. In the latter case, subject to any enabling statutory provision, the reviewing court will not consider the merits of the internal decision, but will determine only whether the decision was carried out in accordance with the organization’s rules and the requirements of natural justice: see Ukrainian Greek Orthodox of Canada v. Ukrainian Greek Orthodox Cathedral of St. Mary the Protectress, [1940] S.C.R. 586; Lakeside Colony of Hutterian Brothren v. Hofer, [1992] 3 S.C.R. 165; Mott-Trille v. Steed (1996), 27 O.R. (3d) 486 (S.C.).

[20] The Roman Catholic Church is a self-governing organization. Its canon law provides an internal review process for ecclesiastical disputes. The expert evidence before the motion judge showed that where an administrative decree may affect the rights of a party, canon law requires that the party be given notice, an opportunity to respond and an unbiased tribunal. Canon law also provides a broad range of remedies, including the substitution of a different decree, monetary compensation and even a trial.

[21] The motion judge found that the internal review process under canon law meets the requirements of natural justice. Father Hart does not suggest otherwise. Was he then bound to follow the internal review process instead of suing in the Superior Court?

[22] The answer to that question turns on the nature of his dispute with the Archdiocese. The nature of the dispute is determined not by its legal characterization – as breach of an employment contract or a claim for constructive dismissal – but by the facts giving rise to it: see Weber, at p. 955.

[23] The facts show that at its core Father Hart’s dispute with the Archdiocese is ecclesiastical in nature and subject to canon law. When he was appointed pastor, his appointment was expressly subject to canon law. The experts who testified on the motion agreed that the office of pastor is ecclesiastical. Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end. Under canon law the church can remit a matter to the civil law but it has never remitted a pastor’s removal from office.

[24] Therefore, even though some aspects of Father Hart’s dispute with the Archdiocese concern matters of property, for example his loss of lodging, at its essence this dispute is ecclesiastical. Redress must be sought through the internal review process established by canon law for disputes of an ecclesiastical nature. Father Hart does not contest that this review process accords with the rules of natural justice. However, even though he did not invoke this review process he submits that the Archdiocese treated him unfairly because it refused his request for a hearing.

Following my post earlier this week about the injunction obtained in New York, lawyers for the movement brought their own respective motions in B.C. and Ontario.

Associate Chief Justice Anne MacKenzie of the B.C. Supreme Court ruled on Friday that the protesters must leave the Vancouver site by tomorrow, and a similar injunction was granted in Victoria.

I attended the motion in Toronto on Friday, where the judge has reserved his decision until Monday. Justice Brown was extremely accommodating to members of the media, allowing non-disruptive recordings of the proceedings and the use of electronic equipment, including social media. Given the limited seating in the court house I was situated in the jury box, and I may be one of the first in Ontario to live tweet from a juror's seat.

Justice Brown also offered to have his registrar email a copy of his decision on Monday directly to members of the media. I will have a copy posted once available on my personal site.

Omar Ha-Redeye at the Occupy Toronto legal tent

From my observations this past week, the biggest problem with the occupy movement is not the constitutional issues, it is the lack of accurate information. But in the land of the blind, the woman or man with the iPad is Queen/King (to paraphrase Erasmus). Individuals in the park have conflicting and often inaccurate about the emerging situations, and rely on updates from mainstream media. Even the General Assembly, the protesters' mechanism for consultation and organization, obtain their information largely from media rather than counsel or any form of amorphous leadership.

An example of this was that the applicants on Friday were situated at the wrong court room for the hearing. Nobody had notified them that the room had been changed at the last minute until I pointed it out to them.

A more pertinent example would be the scarcity of affidavit evidence before the court demonstrating that there is local business and community support for the movement to offset similar materials filed by the City (at midnight the day before the hearing) from neighbours complaining about the situation. Occupy representatives have been on the news with me talking about their cooperation with local business associations, but the judge only heard about the negative financial impact. Supporters have been rallying for a public petition, but submissions before the court would have had a much stronger impact.

Counsel for the protesters emphasized heavily the role of dialogue and discourse in her argument for minimal impairment, but Justice Brown responded, “They talk about horizontal democracy but I don’t see evidence that they’ve gone out to the neighbours. It’s a two-way street, democracy, not a one-way street.” But politicians have been invited to meetings, and breaking news on Friday indicated that meetings with politicians at all three levels of government were underway with some representatives. Nobody in the court room seemed to know about it.

Justice Brown noted that despite their environmentally-friendly goals, the protesters were inadvertently creating damage to the grass in the park and the roots to the trees. Protesters reading live tweets immediately responded with a willingness to re-sod the park and perform environmental maintenance. But none of these submissions would have been before the court, and I responded to them that I couldn't pass my iPad to the judge to do so.

The closest semblance to centralization and organization that Occupy Toronto has is the General Assembly, which now has a website up and even posts minutes of their public meetings (which any visitors can attend and observe). The openness and transparency of the movement in many ways mirrors the type of change some of them would like to see in our government.

An explanation of an injunction at Occupy Toronto

The lack of organization though might also be their greatest strength. It will be interesting to see how Justice Brown words his order, because even if he excludes the specific individuals named as applicants from protesting in a similar fashion in the future, there would be enormous challenges of enforceability on other members of the movement who may just move to a different location and call themselves by a different name.

Either way, the protests will not end if an eviction is allowed on Monday. The city was adamant that they were not significantly curtailing expression, because they were only seeking removal of the tents and no protesting from midnight-5 a.m. Protests will continue, and will likely relocate to "safe sites" that have already been identified and set up in advance. We may be seeing the beginning of a much larger movement, one that could impact our generation the way the civil rights movement did before us.

In a report released this week, a Royal Society of Canada Expert Panel proposes that assisted suicide and voluntary euthanasia should be decriminalized for competent individuals who make a free and informed decision that their life is no longer worth living.

The panel concludes:

1. That there is a moral right, grounded in autonomy, for competent and informed individuals who have decided after careful consideration of the relevant facts, that their continuing life is not worth living, to non-interference with requests for assistance with suicide or voluntary euthanasia.
2. That none of the grounds for denying individuals the enjoyment of their moral rights applies in the case of assisted suicide and voluntary euthanasia. There are no third-party interests, self-regarding duties, or duties toward objective goods that warrant denying people the right to assisted suicide and voluntary euthanasia. Prophesied undesirable social consequences are not sufficient to negate the right to choose assisted suicide and voluntary euthanasia.
3. That health care professionals are not duty-bound to accede to the request of competent and informed individuals who have formulated the uncoerced wish to die, but they may do so. If their religious or moral conscience prevents them from doing so, they are duty bound to refer their patients to a health care professional who will.

The report examined the experience of foreign jurisdictions where assisted dying has been allowed and proposes a system modelled after countries such as the Netherlands where patients may request assisted suicide or euthanasia when a doctor has determined they are competent to make the decision, and have done so voluntarily.

The panel also urges provincial governments to create policies to make clear the circumstances under which Crown prosecutors will not proceed with charges (that is, where there has been a free and informed decision to request assistance to die made by a competent individual).

More background:

• In 1995, the Special Senate Committee on Euthanasia and Assisted Suicide, published its final report, Of Life and Death. The report has sections on terminology, palliative care, pain control and sedation practices, withdrawal/withholding of life-saving treatment, assisted suicide and euthanasia.
• Late last year, the Library of Parliament published an update to a paper on Euthanasia and Assisted Suicide in Canada
• Earlier this year, the Library of Parliament updated its research publication on Euthanasia and Assisted Suicide: International Experiences that looked at the debates and experiences of the US, the Netherlands, the United Kingdom, Australia and a number of other countries
• The Health Law Institute at Dalhousie University in Halifax provides access to material on a number of end of life topics in its Reading Room
• Slaw's Yosie Saint-Cyr wrote a post on September 9, 2010 entitled Euthanasia Subject of Renewed Debate that discussed the public hearings on euthanasia and assisted suicide in front of Quebec's National Assembly. In that post, she also discussed Canadian case law going back to the early 1990s.

On November 8, 2011, the High Court of England and Wales ruled that a Catholic priest qualified as an employee of his diocese, thus exposing the diocese to vicarious liability for clergy sex abuse.

The case of JGE v. (1) The English Province of Our Lady of Charity and (2) The Trustees of the Portsmouth Roman Catholic Diocesan Trust was filed by a woman who is now 47 years old and claims that between 1970 and 1972, when she was a child, a priest abused and raped her. It is important to note that the priest alleged to have done this, Father Baldwin, is now dead and so could neither be sued nor defend himself.

The question at a preliminary hearing for the High Court was whether the Diocesan Trust could be vicariously liable for the acts of this priest (assuming that the claimant will be able to prove her allegations). This question depended in part on whether the relationship between the priest and the trust was akin to employment. In general, employers can be held vicarious liable for the acts of their employees in the course of employment. If the employer is found to be vicariously liable, monetary redress is awarded to the victim, and employers are encouraged to take care in hiring and appointing staff.

Traditionally, however, British law has not considered Catholic priests as employees of their Dioceses; instead, they have been regarded as "office holders" or, simply put, independent contractors. Why? The Diocesan Trust does not have supervisory control over priests, and a priest cannot sue for unjust dismissal if he is removed from his parish, among other things.

The judge admitted that the relationship between the priest and the defendants was not like a regular employment contract, but in this case, he opted to look at certain special factors, including the nature and closeness of the relationship between the priest and the defendant, and the connection between the tortious act and the purpose of the relationship/employment/appointment, which was based on the factors outlined below.

The main principles of the judgment are stated in paragraphs 35–36:

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

This decision allows the case against the diocese to proceed. However, permission has been granted for appeal of this ruling to the Court of Appeal.

In deciding whether vicarious liability exists, the full nature of the relationship between the parties must be considered. This decision confirms that courts are beginning to take a more flexible approach to vicarious liability arguments, at least in the United Kingdom. What will happen if the claimant succeeds? Will the ruling open the door for others to claim vicarious liability against organizations whose independent contractors do wrong? Maybe in specific cases, but probably not for all.

In this case, the relationship between the priest and the diocese, while not enshrined in an employment contract, and lacking certain typical qualities, actually resembles a traditional employment relationship in many more ways than usual employer-contractor relationships. One thing in particular: it's hard to underplay the importance of the position of a priest dedicated to his church: he is effectively beholden to one employer, despite the availability of numerous individual congregations. He could not simply switch denominations—by his own vows. In other words, despite his official status as an independent contractor, it might be hard to argue his independence.

Another important consideration is the relationship a priest has with his parishioners. He holds a position of the utmost trust and responsibility. He has direct and frequent contact with persons of all ages to whom he represents the highest good. Few other independent contractors have such a position.

So, regardless of the decision, the ruling will likely only apply in certain, very specific cases.

Interestingly, the UK case draws precedent from a Canadian Supreme Court Case, Doe v. Bennett and others (2004), in which a bishop was found vicariously liable for the actions of a priest who had committed acts of abuse against young boys in his parish. The facts of that case were not equivalent to the UK case, mainly in that the employment relationship between the Canadian bishop and the priest was different from that between the British diocese and the priest. So we'll wait and see what the results of the present case are, and whether they influence Canadian jurisprudence.

There's an old saying among lawyers (and law profs) that claims "you can't suck and blow at the same time." But it would seem that inventor Sir James Dyson is managing to expel steam from his ears even while his vacuum cleaners continue to inhale a decent share of the "hoover" market. The reason for his turbulence is that his share has been somewhat lessened in Britain thanks to a recent decision of the court of appeal for England and Wales. In Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206 the court decided not to overturn a trial judgment that Vax's Mach Zen C-91 MZ vacuum cleaner did not infringe Dyson's registered design.

The language around which the issue was argued comes from (EU) Designs Directive 98/71:

… A design shall be protected by a design right to the extent that it is new and has individual character…

A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority

In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.

…A design right shall not subsist in features of appearance of a product which are solely dictated by its technical function…

The scope of the protection conferred by a design right shall include any design which does not produce on the informed user a different overall impression.

In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.

The court of appeal found no error in the trial judge's conclusion that an "informed user" would find significant differences in the designs of the two machines. Indeed, Sir Robin Jacob, writing the first judgment, said he would have come to the same conclusion:

An informed user looking at the two designs would indeed notice the difference between them because the overall impressions are different: "smooth curving and elegant" versus "rugged angular and industrial." These are different designs

I find it interesting that in assessing similarities and differences, the court hears argument as to particular features and puts itself in the position of the "informed user" to make the judgment, much, I suppose, as it would when the standard is the "reasonable person." Yet a conclusion under the latter standard is, of course, a policy statement in some measure as to appropriate social conduct; whereas, the former standard seems to me, at least, to invite—indeed, beg for—actual evidence from actual informed users. I'd be interested to learn whether any of the judges used the machines in question, handled them, saw them in various settings, etc. My guess is not. There's something… funny (both "peculiar" and "ha ha") about a Lord Justice Jackson and a Lady Justice Black opining on a tool that they'd be better off asking their charlady about.

But in case you'd like to venture an opinion yourself, expert or inexpert, you can consult a number of photographs of the two machines in similar poses at the end of the appeal judgment, only two of which are reproduced here (the Dyson is on the left; click on an image to enlarge it):

And the steam coming out of Sir James's ears? Dyson had won a case in France against the same Chinese-owned company with respect to the same machine. He's quoted as saying after the court of appeal judgment:

[I]t is galling and mind-boggling. There is something very off when we get support from the French courts but not from the British. We need to better protect British design.

Perhaps the thorniest of emerging Internet legal and policy issues these days is the question of Internet intermediaries. It is a feature of the Internet that all online activity is intermediated through at least one and often several service providers, such as ISPs, social networking sites, blog hosting sites, etc. Standing at the crux of all this activity, intermediaries are uniquely placed to exert a great deal of control and surveillance over activities of downstream users, making them a compelling target for policy-makers and aggrieved plaintiffs alike. The Supreme Court of Canada’s recent seminal decision in Crookes v. Newton offers a general reaffirmation of the Court’s continued commitment to maintaining an open Internet and a vindication for hyperlinkers everywhere. More than that, however, it offers some potential insights into how our Canadian legal system might react if faced with future attempts to leverage Internet intermediaries.

One common mechanism for doing so is to impose liability on them for the activity of others. Secondary liability of this kind is typically different in character from stricter liability regimes applied directly to primary authors, and includes a ‘notice’ element. This means intermediaries are not typically obligated to take pre-emptive steps against downstream infringing content, but must still take specific actions upon being asked to or being made aware of alleged rights infringement or face liability in their own right. Common law obligations arising from such notification may include various categories of takedown requirements: a blogger taking down a ‘flagged’ defamatory (or, perhaps, as IP infringing) comment/post after being notified; a blogging platform taking down a blog that has been ‘flagged'; a domain name registrar seizing the domain of a flagged blogging platform; an ISP blocking access to an IP address of a flagged service. Even more aggressive responses have been undertaken by intermediaries voluntarily under threat of liability. Some have adopted a ‘3 strikes’ policy, where 3 accusations of copyright infringement against a customer leads to disconnection, as settlement in a lawsuit initiated by copyright holders.

What does all this have to do with hyperlinking? While a hyperlinker is not an intermediary, she shares essential characteristics with most intermediaries, in that both play primarily facilitative roles. The intermediary provides access to content created by others, while the hyperlinker merely draws reader’s attention to that content. Crookes squarely raises the question of the extent to which we should be making individuals liable for what others have done. In answering this question within the context of defamatory publication, the SCC adopted an approach that affirms a basic, but critical principle of common law — that individuals should not easily be made responsible for the actions of others. As secondary responsibility is at the core of intermediary liability issues, Crookes may inform the Court's ultimate stance on the latter. We are likely to see the question of intermediary liability recur in Canada in the future, so it is worthwhile speculating on ways the Crookes decision may impact on any such future consideration.

a. Freedom of expression and the Internet
In keeping with its recent jurisprudence (see Abella, J., para. 32 for a synopsis of this trend), the majority ruling in Crookes justified its decision on the grounds that existing defamation common law principles conflict with a Charter right, and should adopt to account for this. What is interesting is the manner in which the Court leveraged free expression in this case to “avoid[] a formalistic application of the traditional publication rule” [Abella, J., para. 25].

This ‘leveraging’ is evident in the following majority statement:

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression. The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control. Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity. (Abella, J., para. 36)

The Court appears to be drawing links between the right to free expression on the one hand, and the utility of the hyperlinking mechanism, the free flow of information and, more broadly, the Internet itself. The importance of the Internet as a communicative platform has recently been tied to the freedom of expression by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression:

Unlike any other medium, the Internet enables individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an “enabler” of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.

This is an important development when viewed within a growing international discourse on the interaction between freedom of expression, the proper role of Internet intermediaries and the need to achieve various public policy objectives such as protecting reputation online. This discourse is also gravely concerned with the detrimental impact to freedom of expression that will result from saddling intermediaries with liability for the content of others. Notification-based intermediary liability will, in effect, transform allegations of wrongdoing into restraints on speech quickly, cheaply, and typically before any judicial processing of such allegations has occurred. The reverse onus is then placed on often under-funded users to challenge this claim in court.

In his report, the UN Special Rapporteur unpacked these concerns in greater detail:

…a notice-and-takedown system is…subject to abuse by both State and private actors. Users who are notified by the service provider that their content has been flagged as unlawful often have little recourse or few resources to challenge the takedown. Moreover, given that intermediaries may still be held financially or in some cases criminally liable if they do not remove content upon receipt of notification by users regarding unlawful content, they are inclined to err on the side of safety by overcensoring potentially illegal content. Lack of transparency in the intermediaries’ decisionmaking process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.

Our own Supreme Court flagged similar concerns (albeit in the context of copyright infringement) in its assessment of authorization-based intermediary liability in SOCAN v. Bell:

The knowledge that someone might be using neutral technology to violate copyright …is not necessarily sufficient to constitute authorization, which requires a demonstration that the defendant did “(g)ive approval to; sanction, permit; favour, encourage” (CCH, at para. 38) the infringing conduct. I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”. However, that is not the issue before us. Much would depend on the specific circumstances. An overly quick inference of “authorization” would put the Internet Service Provider in the difficult position of judging whether the copyright objection is well founded, and to choose between contesting a copyright action or potentially breaching its contract with the content provider.

The potential impact on expression that motivated the SCC in Crookes is magnified significantly in the context of intermediary liability. Much as with the hyperlinker, intermediaries are chilled from communicating the content of others by the threat of notice-based liability. As with hyperlinker chill, fear of liability causes intermediaries to err on the side of over inclusion. Most accusations of defamation are treated as legitimate, because the intermediary (or hyperlinker) is not in a good position to assess defences such as justification (or, with respect to copyright, fair dealing).

The impact of intermediary chill, however, is more significant than with hyperlinkers, as it is applied platform wide and impacts on downstream expression as well. In a notice-takedown regime, it amounts in effect to a restraint on downstream expression. The primary speaker is prevented from making her statement because the intermediary prevents them from doing so. With notice-takedown liability, this occurs before a judicial finding of defamation has been issued as the intermediary must react quickly to avoid liability in their own right. Such an approach is at odds with the Courts hesitant approach towards issuing injunctions in defamation cases, an option viewed as an “exceptional remedy” reserved for cases where the statements at issue are “manifestly defamatory” (See Canadian National Railway v. Google Inc., 2010 ONSC 3121). Far from applying this rigid standard, notice-takedown regimes are strict liability once the notice has been received, meaning a statement ultimately found defamatory (but still far short of the ‘manifestly’ standard) will lead to liability for the inactive intermediary. Further, as noted above, intermediaries are not remotely well-placed to make such assessments, whether manifest or not.

Where Intermediary liability leads to user disconnection, it is a particularly thorny issue, as it can deprive users from access to an entire communications medium on the basis of one minor facet of their use of that medium. Yet intermediaries are increasingly pushed, under threat of liability, towards adopting voluntary disconnection policies. This raises issues of proportionality, as it involves denying users who have committed one form of infringement (copyright, for example) from access to an entire platform of expression:

The Special Rapporteur is cognizant of the fact that, like all technological inventions, the Internet can be misused to cause harm to others … The Special Rapporteur emphasizes that censorship measures should never be delegated to private entities, and that intermediaries should not be held liable for refusing to take action that infringes individuals’ human rights … While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

Once in place, these voluntary disconnection programs are difficult to dislodge, even after liability issues are clarified ex post. As a broader ‘reconsideration’ of the publication rule appears imminent (Crookes para. 42), and in the absence of a legislative response to defamatory intermediary liability, the buffer provided by Crookes against the use of common law liability as a means of chilling free expression may potentially play a role in defining future intermediary liability or lack thereof.

b. Passive instrumentality of Internet intermediaries
Another factor relied upon by the majority in rejecting hyperlink liability is the passivity of the act of hyperlinking. Historically, even the most tangential participation in the publication chain was sufficient to incur liability. The majority in Crookes points, for example, to the printer’s servant found a publisher in his own right for an act no more significant than the ‘clamping down’ of the printing press (Abella, J., para. 18).

However, as the majority points out, this principle has slowly eroded over time. The Court referred in particular to two UK cases, one against an ISP and one against a search engine and a web host, in concluding: “[r]ecently, jurisprudence has emerged suggesting that some acts are so passive that they should not be held to be publication.” (see paras. 21; also 89-90).

In Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765, Justice Eady of the U.K. Queen’s Bench held at paras. 63-64, consistently with Crookes, that where intermediary conduct is limited to merely ‘facilitating access’ or is ‘passively instrumental’ with respect to allegedly defamatory content, publication has not occurred irregardless of whether the plaintiff has requested a takedown or not. Liability remains with the primary author, in such scenarios, and it appears that factors such as ‘passivity’ and ‘instrumentality’ will play a factor in defining the scope of liability. Knowledge and control appear to play a significant (but not determinative) role in assessing the level of passivity, with both factors being necessary, if not sufficient. However, some legislative regimes such as Chile’s recent copyright law have recognized that intermediaries can only be deemed to have ‘knowledge of infringement’ after they are provided with judicial notice of infringing content. If ‘control’ and ‘passivity’ are to be adopted as a new touchstone for publication-based liability, the question of what will qualify as sufficient ‘control’ remains open.

c. Defamatory vindication & control
This focus on primary as opposed to secondary authors as the proper home for vindication also played a significant role in shaping the majority decision. In refusing to apply the traditional publication rule to hyperlinkers, it held:

[40] Where a defendant uses a reference in a manner that in itself conveys defamatory meaning about the plaintiff, the plaintiff’s ability to vindicate his or her reputation depends on having access to a remedy against that defendant. In this way, individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning; not because they have created a reference, but because, understood in context, they have actually expressed something defamatory…

[41] Preventing plaintiffs from suing those who have merely referred their readers to other sources that may contain defamatory content and not expressed defamatory meaning about the plaintiffs will not leave them unable to vindicate their reputations. As previously noted, when a hyperlinker creates a link, he or she gains no control over the content linked to. If a plaintiff wishes to prevent further publications of the defamatory content, his or her most effective remedy lies with the person who actually created and controls the content.

[42] Making reference to the existence and/or location of content by hyperlink or otherwise, without more, is not publication of that content. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker. Such an approach promotes expression and respects the realities of the Internet, while creating little or no limitations to a plaintiff’s ability to vindicate his or her reputation.

While the majority left to another day the question of what constitutes ‘hyperlinking in a manner that conveys defamatory meaning’ (a concurring opinion by McLachlin, C.J. and Fish, J., suggests an ‘endorsement’ standard while the majority may have opted for something more rigorous), the concept that responsibility rests with the primary author is consistent with the normative underpinnings of defamation, if not its historical tendency to catch all participants in its publication web. A finding of defamation is not solely a compensatory regime. A judicial declaration that the author of a statement was ‘wrong’ offers the plaintiff vindication:

This case involves international defendants and activities, suggesting caution and restraint. However, I agree with the motion judge that even if the Ontario judgment is unenforceable in the United States, a judgment would have significant value to Black as a vindication of his Ontario reputation. Black v. Breeden, 2010 ONCA 547, (Ont. C.A.), leave to appeal to S.C.C. granted.

Normatively speaking, it is difficult to see how refusing to remove a comment made on a blog upon request, or to block access to one of the trillions of websites to which an ISP facilitates access is an act that calls for this type of ‘vindication’. Absent liability, many if not most Internet intermediaries premise their takedown decisions on the desire to facilitate interactions on their platform, not necessarily on their approval or disapproval of any single comment. In any case, as pointed out above, intermediaries are not very well placed to assess the defamatory nature of such content (particularly where complex legal concepts such as justification, fair comment or fair dealing must be considered).

There may be practical reasons for maintaining some form of intermediary liability. The Court stresses repeatedly that hyperlinkers have no control over the underlying content — indeed, once the linked content is removed, the hyperlink is immediately stripped of any defamatory import. This is different for intermediaries, who may exercise control over the originating content and restrict access to it. But, stripped of the need for ‘vindication’, what is left are practical considerations and these may well be outweighed by the detrimental impact on free expression that may ensue from imposing liability.

d. Section 230 of US CDA ‘creation or development’
In reaching its decision on the scope of hyperlinking liability, the Supreme Court also relied on part on section 230 of the U.S. Communications Decency Act, a provisions which grants immunity to all Internet intermediaries for any (allegedly) defamatory content where were not involved in its creation or development (Crookes, paras. 28, 103). The premise underlying s. 230 is that online intermediaries should not be held responsible for the content of others:

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity…None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. (Zeran v. America Online Inc., 129 f. 3d 327 (4th Circ., 1997)

While Canadian common law does not currently reflect CDA s. 230, the Court’s willingness to adapt common law third party liability in order to prevent excessive chill of expression may bode well for those concerned with the broader question of Intermediary liability and, more generally, for those concerned with online speech as the Court subjects the “one writer/any act/one reader paradigm” to “further scrutiny” in the future.

What are you doing at 6:00 PM (ET) on Monday, November 14, 2011? If you're in Toronto, consider coming to Fraser Milner Cagrain at 77 King Street West to hear Human Rights Adjudication in the 21st Century, a talk by Timothy Endicott, Dean of the Faculty and Professor of Legal Philosophy (for Lawyers and Non-Lawyers alike)

The timetable is 6pm Wine and Cheese Reception, 6.45pm Talk and Discussion. $20 at the door but please let us know if you're on the fence so we know how many to cater for. Here is the log-in.

Timothy Endicott is a Canadian lawyer who has been (the first) Dean of the Faculty of Law at Oxford since October 2007. He is a Fellow in Law at Balliol College, and has been a Professor of Legal Philosophy since 2006. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation.

He is the author of Vagueness in Law (OUP 2000), and Administrative Law (OUP 2009). After graduating with the AB in Classics and English, summa cum laude, from Harvard, he completed the MPhil in Comparative Philology in Oxford, studied Law at the University of Toronto, and practised as a litigation lawyer with Oslers in Toronto.

Twenty bucks will get you the reception and Timothy's talk. Register here. While initially aimed at Oxford and Cambridge graduates, others

The issue he'll be discussing is very hot in England. Are human rights ultimately a matter of domestic law or community law? And are they a matter for Parliament or European judges?

Those who've been following the recent legal news will have seen the remarkable disagreement between Dominic Grieve the Attorney General and the Home Secretary Theresa May on the role of the Strasbourg Court, with reference to a tabloid created fictitious story about a refugee claimant who established a claim by having a cat in the family. Grieve will be arguing before the full court in the Italian prisoners' voting case. He gave a remarkable (and by North American standards nuanced and articulate) speech at LIncoln's Inn. Ed Bates has a good blog commentary here.

The primary responsibility for guaranteeing and protecting human rights within a country rests with that country's own institutions – its government, its legislature and its courts.

That is a long-accepted principle of human rights law. When the European court decides that a state has denied rights to individuals within its jurisdiction, the state itself is responsible for deciding how to repair the breach.

Subsidiarity was the theme of a lecture delivered at Lincoln's Inn on Monday night by the attorney general, Dominic Grieve. As he explained the term, it means that the primary responsibility for guaranteeing and protecting human rights within a country rests with that country's own institutions – its government, its legislature and its courts.

It is also at work in the "margin of appreciation", which is the latitude – or room for manoeuvre – that governments are given when securing human rights. As the European judges often say, they are less well placed than a country's own authorities to evaluate its needs.

This week, though, the British government has subtly extended the meaning of subsidiarity. If the new definition is accepted, the term will no longer mean the latitude given by the court to a government. It will mean the lack of latitude given by the government to the court. Some cases will never get to the Strasbourg court at all.

The second disagreement is even more remarkable. The lord chief justice Lord Judge has said that UK courts are not bound by rulings of Strasbourg-based court of human rights, while the President of the Supreme Court has admitted that his court is not always "supreme" because it has to follow the lead of the European court of human rights in Strasbourg, whose rulings are sometimes too narrow in scope. Lord Judge was giving evidence to the Lords Constitutional Committee, when he said that the UK need only “take account” of the decisions of the European Court of Human Rights but not necessarily follow it.

Tim will be talking about an issue whose time has clearly come.

This week the Ontario Suprerior Court of Justice ruled in the costs award in the online defamation case of Baglow v. Smith.

The plaintiff, who lost on summary judgment, sought only minimal costs based on public interest because he claimed the case dealt with a novel point of law and fact situation. He based this on the commentary in the decision on "removing the sting" in blogging, which as I've noted here before was a unique approach to dealing with online defamation.

Annis J. rejected this argument and stated that his decision was primarily based on two points:

1. the allegedly defamatory term used was generally ambiguous, and did not therefore meet the threshold for defamation
2. the comments were protected even if they were defamatory by fair comment

In R. v. Barros, 2011 SCC 51, handed down yesterday, the Supreme Court ruled on whether the defence in a criminal matter is bound by the "informer privilege," deciding that it is not so bound.

Mr Justice Binnie wrote the judgment for the 7 in the majority, and on the broad point just stated his first paragraph says it all:

The jurisprudence establishes that the identity of police informers is protected by a near-absolute privilege that overrides the Crown’s general duty of disclosure to the defence. This privilege is subject neither to judicial discretion nor any balancing of competing interests (although qualified by an “innocence at stake” exception). The trial judge held however that this privilege does not restrict a defence investigation into the identity of a police informant, and further, that the attempt to fetter such a defence investigation would violate the constitutional right of an accused to a full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. A majority of the Alberta Court of Appeal disagreed. In its view, on the contrary, informer’s privilege prohibits the accused or anyone on his behalf from making efforts even wholly independent of the prosecution to discover which of his associates, if any, had “ratted” on him. This proposed extension of the rule would transform a rule of non-disclosure binding on the police, the prosecutorial authorities and the courts into a general prohibition of investigation into police informers binding on the whole world. In my view, with respect, this goes too far.

This is a case involving a private eye, a "rat," allegations of extortion and obstruction of justice — very much the stuff of detective novels. But my knowledge of criminal law is utterly non-existent, so I'll leave it to others to explore the judgment on Slaw if they wish. (I'm embarrassed to admit that I had no idea that there was an "informer privilege," a law that at first blush strikes me as unsavoury, regardless of any instrumentality it may have.)

Already the subject of Slaw posts in the past with regard to different jurisdictions (see here and here), it is now Quebec's turn to recognize service via Facebook after the Court of Quebec authorized this past summer a plaintiff to serve its motion to institute proceedings via this social network ing site.

In Boivin & Associés c. Scott, 2011 QCCQ 10324 (CanLII), the plaintiff submitted evidence that it had made every effort possible to serve the defendant by traditional means, but to no avail. Indeed, the defendant had no known address in Quebec and her last known address was in Florida; however, the defendant had since moved away and could no longer be located at any physical address. The plaintiff demonstrated that the person it wished to serve had a Facebook page and argued that it could serve the defendant personally and efficiently by electronic means.

The honorable Daniel Dortelus surveyed the framework regarding service in Quebec: the Quebec Code of Civil Procedure allows a party to serve another through a variety of means: by bailiff, by mail and by public notice. The judge took note of the fact that these means of service are not exclusive of all other ones and Quebec’s Act to establish a legal framework for information technology, RSQ c. C-1.1, which seeks to ensure the functional equivalence and legal value of documents, could in fact be applied to service of procedures.

Satisfied that the plaintiff had made the necessary attempts to serve the defendant through other means, the judge concludes as follows on service via Facebook:

It is a direct and practical way of notifying the defendant that a motion has been instituted against her so that she may prepare her defense and be heard, which meets the main objective of service. (my translation)

The British Columbia Supreme Court has recently given judgment for Century 21 Real Estate company against a company (affiliated with Rogers Communications) that scraped real estate listing information from the Century 21 sites and repackaged it on its own site: Century 21 v Rogers Communications 2011 BC 1196 .

The court thoroughly reviewed US and Canadian law on the topic and recited a number of factors that might support a finding that a ‘browsewrap’ contract (i.e. one that did not depend on any active assent to its terms, but that operated by mere use of the web site) would be enforceable. The list is much like that generated by US courts in similar cases, and summarized in a very useful article in The Business Lawyer in 2003.^*

A similar result was given in Quebec on similar facts inCanadian Real Estate Association v Sutton Realty2003 CanLII 22519 (QC CS). (The decision was cited in the BC case.)

It seems to me that the common element of almost all the US cases and all the Canadian cases where a browsewrap ‘contract’ has been upheld is that the defendant was doing something that was obviously illicit, namely taking content from a website in order to use it in competition with the owner of the source website. Courts just don’t take kindly to that, and if they have to invent an agreement to shut it down, they will. It’s what the French courts would call ‘parasitism’, which is an extra-statutory remedy they have devised for activity they don’t like where someone is profiting from somebody else’s efforts in a way not foreseen by the Code of Intellectual Property.

The plaintiff in the BC case also won on a copyright argument. It did not persuade the court, however, that Rogers had committed ‘trespass to chattels’. The court was not prepared to import that notion into BC law, at least not on the facts in the case.

Do you find the result acceptable? The reasoning? Would it be better for courts not to invent contracts in such circumstances and find some kind of unjust enrichment or other equitable remedy for the behaviour to be sanctioned?

(I find it somehow satisfying that Rogers lost this one, given that company’s ‘success’ in arguing (in Kanitz v Rogers Cable Inc  2002 CanLII 49415 (ON SC) also cited in the BC case) that its customers had to live with the way the web worked, and burying a notice of a change in a contract five levels deep on a website was perfectly acceptable commercial dealing. Rogers won that one in an Ontario court, but lost it in the legislature when the type of change they made was banned in the (then) new Consumer Protection Act, 2002.)

___________________________________

* C. Kunz, J, Ottaviani, E. Ziff, J. Moringiello, K. Porter and J. DeBrow, “Browse-Wrap Agreements: Validity of Implied Assent in Electronic Form Agreements”, 59 The Business Lawyer 279 (2003)

[hat tip: Blakes Bulletin]

Ten months ago, the two Simons sat at the back of the Supreme Court of Canada and watched the argument in Crookes v. Newton, one of a number of Internet defamation cases coming from British Columbia. The decision was handed down this morning as 2011 SCC 47, (October 19, 2011). Among the intervenors were Canadian Civil Liberties Association, Samuelson-Glushko, Canadian Internet Policy and Public Interest Clinic, NetCoalition, British Columbia Civil Liberties Association, Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, Magazines Canada, Canadian Journalists for Free Expression, Writers’ Union of Canada, Professional Writers Association of Canada, PEN Canada and Canadian Publishers’ Council.

Here is the headnote:

Newton owns and operates a website in British Columbia containing commentary about various issues, including free speech and the Internet. One of the articles he posted on it contained shallow and deep hyperlinks to other websites, which in turn contained information about C. C sued N on the basis that two of the hyperlinks he created connected to defamatory material, and that by using those hyperlinks, N was publishing the defamatory information. At trial, the judge concluded that the mere creation of a hyperlink in a website does not lead to a presumption that someone actually used the hyperlink to access the impugned words. The judge agreed that hyperlinks were analogous to footnotes since they only refer to another source without repeating it. Since there was no repetition, there was no publication. Furthermore, in the absence of evidence that anyone other than C used the links and read the words to which they linked, there could not be a finding of publication. A majority of the Court of Appeal upheld the decision, finding that while some words in an article may suggest that a particular hyperlink is an encouragement or invitation to view the impugned site, there was no such encouragement or invitation in this case. In addition, the number of “hits” on the article itself was an insufficient basis for drawing an inference in this case that a third party had read the defamatory words. The dissenting judge held that there was publication. The fact that N’s website had been viewed 1,788 times made it unlikely that no one had followed the hyperlinks and read the impugned article. Furthermore, the context of the article suggested that readers were encouraged or invited to click on the links.

The court held that the appeal should be dismissed, with three judgments, the majority by Justice Abella , with LeBel, Binnie, Charron, Rothstein and Cromwell JJ. concurring:

To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

Here, nothing on N’s page is itself alleged to be defamatory. Since the use of a hyperlink cannot, by itself, amount to publication even if the hyperlink is followed and the defamatory content is accessed, N has not published the defamatory content and C’s action cannot succeed.

The Chief Justice (joined by Fish J.) agreed but said that a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.

The most extensive judgment (and arguably most radical approach) was taken by Deschamps J., who also found against Crooks.

Excluding hyperlinks from the scope of the publication rule is an inadequate solution to the novel issues raised by the Internet. This blanket exclusion exaggerates the difference between references and other acts of publication, and treats all references, from footnotes to hyperlinks, alike, thereby disregarding the fact that references vary greatly in how they make defamatory information available to third parties and, consequently, in the harm they can cause to people’s reputations.

In the common law of defamation, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood.

In the context of Internet hyperlinks, a simple reference, absent evidence that someone actually viewed and understood the defamatory information to which it directs third parties, is not publication of that content. In order to satisfy the requirements of the first component of publication, the plaintiff must establish, on a balance or probabilities, that the hyperlinker performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form. An act is deliberate if the defendant played more than a passive instrumental role in making the information available. In determining whether hyperlinked information is readily available, a court should consider a number of factors, including whether the hyperlink is user-activated or automatic, whether it is a shallow or a deep link, and whether the linked information is available to the general public (as opposed to being restricted). Any matter that has a bearing on the ease with which the referenced information could be accessed will be relevant to the inquiry.

For an action in defamation to succeed, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely that a third party received and understood the defamatory information. This requirement can be satisfied either by adducing direct evidence or by asking the court to draw an inference based on, notably, whether the link was user-activated or automatic; whether it was a deep or a shallow link; whether the page contained more than one hyperlink and, if so, where the impugned link was located in relation to others; the context in which the link was presented to users; the number of hits on the page containing the hyperlink; the number of hits on the page containing the linked information (both before and after the page containing the link was posted); whether access to the Web sites in question was general or restricted; whether changes were made to the linked information and, if so, how they correlate with the number of hits on the page containing that information; and evidence concerning the behaviour of Internet users. Once the plaintiff establishes prima facie liability for defamation, the defendant can invoke any available defences.

Here, N acted as more than a mere conduit in making the hyperlinked information available. His action was deliberate. However, having regard to the totality of the circumstances, it cannot be inferred that the first, shallow hyperlink made the defamatory content readily available. The various articles were not placed on N’s site’s home page and they had separate addresses. The fact that the reader had to take further action in order to find the defamatory material constituted a meaningful barrier to the receipt, by a third party, of the linked information. The second, deep hyperlink, however, did make the content readily available. All the reader had to do to gain access to the article was to click on the link, which does not constitute a barrier to the availability of the material. Thus, C has satisfied the requirements of the first component of publication on a balance of probabilities where this link is concerned. However, the nature of N’s article, the way the various links were presented and the number of hits on the article do not support an inference that the allegedly defamatory information was brought to the knowledge of some third person. The defamation action with respect to either of the impugned hyperlinks cannot succeed.

And if you've read this far, the court mentioned both Facebook and Twitter.

The Federal Courts Rules Committee has asked that the Discussion Paper on a possible global review of the Federal Courts Rules should receive wide distribution to members of the public and the profession. The final version of the paper has been posted in both official languages on the web sites of the Federal Court of Appeal and the Federal Court.

For Slaw readers the most interesting issue under discussion is

advancements in information technology are encouraging more and more litigants to become actively involved in the litigation process, even if they do not ultimately seek to represent themselves before the court. They may want to know about the ways in which matters proceed in the Federal Courts. In some jurisdictions, such as the Federal Court of Australia, this trend has led to web-based and other initiatives to make the litigation process more accessible to the general public. This does not replace professional advice and representation, but it provides a useful service in informing the public and facilitating the involvement of litigants in a way that is consistent with the prudent management of court resources and with the effective resolution of disputes. Indeed, the increase in the use of information technology generally has changed the way in which the public expects to receive information of all sorts, and this too may affect the way in which the Rules or information about the Rules should be presented. This could entail the introduction of supplementary web-based guidance on the practice of the Federal Courts, either independently or as part of an initiative to reform the Rules.

In this message, they invite you to participate and to provide input.

Why a global review?

In 1998, the Federal Courts Rules came into being. They made many significant changes to the previous rules. Many of those changes implemented certain broad policies aimed at furthering fairness and efficiency in the management and governance of litigation.

But much has happened in the last 13 years. Over that time, and partly in response to the changing nature of litigation, many piecemeal amendments to the rules have been made. To some extent, the rules are now like a quilt on which many patches have been sown.

Now is the time to conduct a global review of the rules, examining whether they still further their purposes. In other words, now is the time to look at the entire quilt and assess it.

What has happened so far?

The Rules Committee is the body that considers and approves changes to the Federal Courts Rules. It is a committee comprised of representatives of the Federal Courts, the Bar, and the academic community. Recently, that Committee decided that a global review of the rules should be conducted. The original vision of the framers of the rules was that such a review should take place roughly once a decade.

As a result, a subcommittee on global review has been established. The subcommittee is to study the matter, consult widely with the Federal Courts’ various stakeholders, and report back to the Rules Committee. The subcommittee has begun its study.

What might change as a result of the global review?

Upon receipt of the subcommittee’s report, the Rules Committee will discuss the matter and reach certain conclusions about particular policies that need to be adopted and implemented in the rules. The global review process is a policy review and policy adoption process, not a consideration of particular rule changes.

However, if new policies are adopted in the global review process, the Rules Committee will consider how those policies should be implemented in the rules. Specific proposals for amendments to the rules may then be made.

The global review process is now under way. Now is the time for you to have your say on the policy matters that could result in important amendments to the rules.

Some of the policies being discussed right now

The subcommittee on global review has identified several policy issues for discussion and consideration. In identifying these issues, the subcommittee does not express any opinion at this time on the significance or the merits of these issues.

Professor Janet Walker has prepared a discussion paper on these issues.

To summarize, the policy issues are as follows:

1. The involvement of the courts in proceedings. At present, with the exception of case-managed proceedings, the rules largely permit parties to manage their own proceedings, with little input from the courts. Should the Federal Courts seek to engage more actively in the management of proceedings, and, if so, in what sort of proceedings, and how should management take place? Should litigation plans be required from the parties and assessed by the court, and, if so, in what sort of proceedings and on what basis should the assessment proceed? Does the existing system of case management work well? Do cases with self-represented litigants raise special considerations? Should the courts be empowered to impose sanctions for abuse of procedures and, if so, in what circumstances, and what sort of sanctions?

2. Judicial determination vs. alternative disposition (e.g., settlements)? Currently the rules are aimed primarily at getting matters ready for a judicial determination on their merits. For example, rule 3 provides that “[t]hese Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.” Can the rules do more to promote settlements? Should they? How might they do so?

3. Proportionality. Should the extensiveness of court procedures vary according to the magnitude of the dispute? What procedures might be attenuated, and in what sorts of cases? If proportionality is to be implemented as a policy, is this best done under rule 3, or under specific rules concerning particular procedures?

4. Practice directions. These allow for minor procedural matters to be addressed quickly and flexibly. However, they are not the product of wide consultation and counsel and self-represented litigants are often unaware of them. Are too many matters being regulated by practice direction? Should any existing practice directions be promoted to rules or vice versa? What can be done to ensure greater compliance with practice directions? Can practice directions be better publicized? How?

5. “One size fits all” procedures vs. specialized procedures. For the most part, the rules adopt a “one size fits all” approach – virtually all of the rules apply to virtually all proceedings. Should there be specialized procedures for specialized areas, e.g., intellectual property, immigration, or does the “one size fits all” approach work well even for specialized areas?

6. The architecture of the rules. Is the current structure, ordering, numbering and indexing of the rules “user-friendly”? In this regard, it should be remembered that some users are self-represented litigants. Might “user-friendliness” be accomplished in other ways, such as through the use of information technology, and, if so, what ways?

7. Other issues. We invite you to suggest other policy issues that should be discussed and considered, and to offer your views on those issues.

Please note that another subcommittee is examining issues relating to the rules and whether they pose an obstacle to the use of information technology. Those issues are not within the mandate of this subcommittee. Ultimately, the work of both subcommittees will be considered together by the Rules Committee, and specific reforms may be proposed.

We invite you to participate

You can participate in two ways. First, you can provide written comments directly to the subcommittee. Second, this autumn, there will be an opportunity to meet and discuss these issues with members of the subcommittee.

To make written comments, please email or write by January 6, 2012 to:

Ms Chantelle Bowers,
Executive Assistant to the Chief Justice,
Federal Court of Appeal,
90 Sparks Street,
Ottawa, ON K1A 0H9
Chantelle.Bowers@fca-caf.ca

Dates and locations for the meetings will be announced in the new year.

For the record here is the Prime Minister's announcement of Justice Andromache Karakatsanis and Justice Michael J. Moldaver as the Government’s nominees for the Supreme Court of Canada. Both nominees have agreed to appear at an ad hoc parliamentary committee to answer questions of Members of Parliament on October 19. Blatchford's reaction in the National Post is here, the Post's editorial reaction and CTV's story.

Justice Moldaver's CV and Justice Karakatsanis' CV

The news release singles out three judgments by Justice Moldaver as typical:
R. v. K.M., 2011 ONCA 252
R. v. Phillion, 2009 ONCA 202
Ontario Provincial Police v. The Cornwall Public Inquiry, 2008 ONCA 33
but then fails to provide a direct hyperlink. We have corrected that.

For Justice Karakatsanis the sample cases are:
Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409
R. v. Cole, 2011 ONCA 218
R. v. Kahn, 2011 ONCA 173

Normally Slaw would link to the cases of the new nominees, but since the Federal Judicial Commissioner has done so, here are the lists of cases. We will have more substantive comment later.

The decisions listed in the following pages were taken from the subscriber accessed legal database “LexisNexis Canada” (“QL”) website after a search was conducted under the name of Justice Moldaver. The list should include decisions rendered by Mr. Justice Moldaver and by the Court where he was on the Panel, but not endorsements, since he was appointed to the Court of Appeal for Ontario on December 22, 1995, to the Ontario Court of Justice (General Division) on July 31, 1990 and to the High Court of Justice of the Supreme Court of Ontario on April 12, 1990.

The decisions of the Court of Appeal for Ontario can be found at:
http://www.ontariocourts.on.ca/decisions_index/en/.

The decisions of the Superior Court of Justice can be found at:
http://www.canlii.org/en/on/onsc/.

Where the cited decisions are not linked to either of the websites above, the citation is to the subscriber accessed legal data base, “LexisNexis Canada” (“QL”).

NOTE:
Case names in bold and italics indicate decisions written by Mr. Justice Moldaver.
Case names in italics indicate decisions written by the Court where Mr. Justice Moldaver was on the Panel of the Court of Appeal for Ontario.

Dissenting reasons written by Mr. Justice Moldaver are listed separately.

List of Decisions – Court of Appeal for Ontario

2011

Case NameCitationCourt of Appeal for OntarioR. v. VanezisNovember 10, 2006 (C.A.)

R. v. LabbeOctober 31 2006 (C.A.)

Truscott (Re)October 18 2006 (C.A.)

Truscott (Re)October 18 2006 (C.A.)

R. v. LinkieOctober 16 2006 (C.A.)

R. v. ZebedeeJune 29 2006 (C.A.)

R. v. CapraraJune 5, 2006 (C.A.)

Ontario Deputy Judges Association v. The Attorney General of Ontario May 25, 2006 (C.A.)

Solway v. Attorney in Fact in Canada for Lloyd's UnderwritersMay 25, 2006 (C.A.)

Case NameCitationCourt of Appeal for OntarioOntario Restaurant Hotel & Motel Association v. Toronto (City)October 7 2005 (C.A.)

Matrix Contractors & Building Services Inc. v. National Bank of CanadaJuly 13 2005 (C.A.)

R. v. JonesJune 28 2005 (C.A.)

Bozzo v. GiampaoloMay 25 2005 (C.A.)

Coady v. BoyleMay 11, 2005 (C.A.)

R. v. RichardsApril 25, 2005 (C.A.)

R. v. TriscasApril 22 2005 (C.A.)

R. v. Kporwodu and VenoApril 15, 2005 (C.A.)

R. v. TrieuMarch 24, 2005 (C.A.)

Giroux (Executor and Trustee) v. Trillium Health CentreMarch 1, 2005 (C.A.)

Greenberg v. DanielsJanuary 17, 2005 (C.A.)

Case NameCitationCourt of Appeal for OntarioTrendle v. TrendleDecember 22, 2004 (C.A.)

R. v. LaurinDecember 20, 2004 (C.A.)

R. v. BaltovichDecember 2, 2004 (C.A.)

Rogacki v. BelzSeptember 1, 2004 (C.A.)

R. v. B., J.June 16, 2004 (C.A.)

United States of America v. McDowellMarch 10, 2004 (C.A.)

R. v. BennettMarch 19, 2004 (C.A.)

R. v. ClarkJanuary 26, 2004 (C.A.)

R. v. Willard[2004] O.J. No. 5585 (C.A.) (QL)R. v. LaurinDecember 20, 2004 (C.A.)

Truscott (Re)December 14, 2004 (C.A.)

Banihashem-Bakhtiari v. Axes Investments Inc.March 17, 2004 (C.A.)

Banihashem – Bakhtiari v. Axes Investments Inc.February 6, 2004 (C.A.)

Celanese Canada Inc. v. Murray Demolition Corp.October 1, 2004 (C.A.)

Granite Power Corp. v. OntarioAugust 3, 2004 (C.A.)

R. v. HunterFebruary 6, 2004 (C.A.)

2002

2000

1998

List of Decisions – Ontario Court of Justice (General Division)

List of Decisions – High Court of Justice of the Supreme Court of Ontario

Dissenting Reasons for Judgment Rendered by Mr. Justice Moldaver

Decisions Rendered by Mr. Justice Moldaver
and Heard on Appeal by the Supreme Court of Canada

Judgments rendered by the Supreme Court of Canada can be found at:
http://www.scc-csc.gc.ca/decisions/index-eng.asp

The decisions listed in the following pages were taken from the subscriber accessed legal database “LexisNexis Canada” (“QL”) website after a search was conducted under the name of Justice Karakatsanis. The list should include decisions rendered by Madam Justice Karakatsanis and by the Court where she was on the Panel, but not endorsements, since she was appointed to the Court of Appeal for Ontario on March 26, 2010 and to the Superior Court of Justice on November 21, 2002.

The decisions of the Court of Appeal for Ontario can be found at:
http://www.ontariocourts.on.ca/decisions_index/en/

The decisions of the Superior Court of Justice can be found at:
http://www.canlii.org/en/on/onsc/

Where the cited decisions are not linked to either of the websites above, the citation is to the subscriber accessed legal data base, “LexisNexis Canada” (“QL”).

NOTE:
Case names in bold and italics indicate decisions written by Madam Justice Karakatsanis.
Case names in italics indicate decisions written by the Court where Madam Justice Karakatsanis was on the Panel of the Court of Appeal for Ontario.

List of Decisions – Court of Appeal for Ontario

Case NameCitationCourt of Appeal for OntarioDundee Precious Metals Inc. v. Marsland2011 ONCA 594Hollinger Inc. (Re)2011 ONCA 579Hungary v. Toth2011 ONCA 532Cunningham v. Moran2011 ONCA 476R. v. Beausoleil2011 ONCA 471Ranger v. Penterman2011 ONCA 412Barrington v. Institute of Chartered Accountants of Ontario2011 ONCA 409R. v. R.B.2011 ONCA 328R. v. Valovic2011 ONCA 320R. v. Cole2011 ONCA 218Gagne v. Gagne2011 ONCA 188R. v. Khan2011 ONCA 173First Ontario Realty Corp. v. Deng2011 ONCA 542189205 Ontario Inc. v. Springdale Pizza Depot Ltd.2011 ONCA 467

List of Decisions – Superior Court of Justice

2010

2004

Decision rendered by Madam Justice Karakatsanis and Heard on Appeal by the Supreme Court of Canada

Judgments of the Supreme Court of Canada can be found at:
http://www.scc-csc.gc.ca/decisions/index-eng.asp

In the latest chapter of the online defamation case by UofO law professor, Joanne St. Lewis, the plaintiff proceeded recently with a motion to compel a response from undertakings and refusals. These motions are rather commonplace in civil litigation, except that the defendant, Denis Rancourt, sought to have a blogger accompany him to report on the proceedings.

The undertakings and refusals emerged from the cross examination of an affidavit, submitted to oppose a motion by the plaintiff to abridge the time for mediation and require the parties to use an experienced private mediator rather than a roster mediator.

Counsel for the plaintiff, Richard Dearden, asked the court for instruction on who may attend a cross examination of an affidavit. The defendant had Joseph Hickey, a UofO Master's student in physics and graduate student representative of the UofO Senate, attend the cross-examination. Hickey then blogged about the event on his site, A Student's Eye View,

Mr. Dearden first attempted to block observation of the proceedings by myself and the other members of the public present, and attempted to obtain the identities of each of the observers in turn. However, Dearden refused to provide grounds for removal of observers, and instead abandoned his attempt to intimidate and exclude the public when it was clear that the observers intended to stay. Dearden threatened that the presence of members of the public at the hearing would be used for “malice purposes and aggravated damages and punitive damages” against the defendant.

Dearden proceeded to cross-examine Rancourt, going beyond an examination of the defendant’s affidavit in an attempt to probe into matters beyond the scope of the cross-examination hearing.

Dearden’s interrogation of the witness was aggressive and abusive, and was clearly intended to be an exercise in intimidation. He aggressively yelled at the self-defended witness on several occasions, and refused to answer “yes or no” procedural questions about the legal requirements for the self-defended witness to answer his cross-examination questions. When Rancourt correctly complained that Dearden was “badgering” him with improper questions, Dearden again attacked the defendant with the accusation that this complaint constituted malicious conduct on Rancourt’s part.
[emphasis added]

The defendant attempted to rely on the open court principle to demonstrate the right of non-parties to attend, which is enunciated subject to several exceptions under the Courts of Justice Act,

Public hearings

135.(1)Subject to subsection (2) and rules of court, all court hearings shall be open to the public.

Master MacLeod provided clarification,

[20] …Cross examination or discovery does not take place in open court (although it does take place under court supervision). It is only once a transcript or portions of a transcript are tendered in evidence that they become part of the court record. Motion records and exhibits at trial are part of the court record. Court hearings (such as this motion) are held in open court though that was not always the case. Prior to adoption of the “new rules” chambers motions were not considered to be in open court or on the record. In any event it is quite clear that there is no right for the public to attend an examination out of court at the office of the special examiner or court reporter. Even were that not the case however, the court could give direction about the conduct of such examinations.
[emphasis added]

The Master allowed the plaintiff a follow-up cross examination on their discretion, and ordered that "no one but the parties and their lawyers and the reporter may be in attendance…"

The Ontario Superior Court of Justice decision in Sierra Club Canada v. Ontario was recently made available online. The decision is important for examining the level of deference by the judiciary in applying judicial review where matters extend into public policy relating to the precautionary principle in environmental law.

Background

The Detroit International Crossing Project (DICP) would add a much needed additional crossing to the Windsor-Detroit border, connecting the American interstates with the new Windsor-Essex Parkway and the 400 series highways in Ontario. Although the Windsor-Detroit crossings were only operating at 66% capacity in 2004, a significant increase in travel demand is expected before 2035 due to growth of Canadian population and GDP and Canadian exports.

The project was the result of considerable collaboration between the Canadian and American governments, and required approvals under the Canadian Environmental Assessment Act and Ontario Environmental Assessment Act. An environmental assessment approval under the provincial process revealed that the bridge could harm a number of Species at Risk (SARs), who are listed in O. Reg. 230/08 of the Endangered Species Act ("ESA"). Section 9 of the Act clearly states,

Protection and Recovery of Species

Prohibition on killing, etc.

9. (1) No person shall,

(a) kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species…

The Act also seeks to protect the habitat of SARs in Section 10,

Prohibition on damage to habitat, etc.

10. (1) No person shall damage or destroy the habitat of,

(a) a species that is listed on the Species at Risk in Ontario List as an endangered or threatened species; or

(b) a species that is listed on the Species at Risk in Ontario List as an extirpated species, if the species is prescribed by the regulations for the purpose of this clause.

However, the Act also allows the Minister of Natural Resources to issue special permits (subject to certain limitations in sub 2),

Permits

17. (1) The Minister may issue a permit to a person that, with respect to a species specified in the permit that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species, authorizes the person to engage in an activity specified in the permit that would otherwise be prohibited by section 9 or 10. 2007, c. 6, s. 17 (1).

The Sierra Club Canada, a volunteer-based environmental organization, brought an application for judicial review of the federal decision to approve the bridge which the Federal Court dismissed earlier this year. A provincial permit was issued on February 9, 2010, and the Sierra Club sought judicial review of that decision on August 18, 2010 on four bases:

1. an error in law by failing to apply the “precautionary principle”, or meaningfully considering the Statement of Environmental Values (SEV) of the Ministry of Natural Resources;
2. a failure to comply with s. 17(2)(d)(ii) and (iii) of the ESA;
3. a failure to consider relevant information; and,
4. a reasonable apprehension of bias.

Standard of Review

Lederer J. cited the Supreme Court decision in Dunsmuir v. New Brunswick to conclude that the standard of review was reasonableness because the Minister was interpreting her own statute, with which she would have been particularly familiar with,

[53] Where the question is one of fact, discretion or policy, deference will usually apply automatically …

[54] …Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity…
[emphasis added and citations omitted]

The court also cited Elementary Teachers' Federation of Ontario v. Ontario (Labour) and the Ontario Court of Appeal decision in Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), which interpreted Dunsmuir,

[22] …Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad.  In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.
[emphasis added]

The court clarified that no standard of reasonableness is required for allegations of bias because the procedure must be fair.

Interpretation of the ESA

The limitations on the Minister detailed in s. 17(2) of the ESA can be summarized as follows:

1. s. 17(2)(d)(i), (iv), (v) and (vi)) require the Minister to form an opinion;
2. s. 17(2)(d)(ii) and (iii))require the Minister to consult with an independent expert who has submitted a written report, including an opinion on whether the activity will jeopardize the survival or recovery of the species; and,
3. s. 17(2)(d)(vii)) requires the issuance of permit be approved by the Lieutenant Governor in Council.

The court noted that nothing in the ESA requires the Minister to follow the expert opinion, which broadens the deference on the basis of public policy. Specifically, s. s. 17(2)(d)(i) allows the Minister to consider significant social or economic benefit to the province when considering the impact on SARs.

The applicant, Sierra Club, claimed that s. 17(2)(d) was not met because the precautionary principle found in both the preamble of the ESA and the SEV is an overarching consideration under s. 11(3), which renders a permit unlawful and invalid if it does not supersede all other factors. The precautionary principle was defined in the Environmental Review Tribunal decision, Davidson v. Ontario (Director, Ministry of the Environment),

A precautionary approach presumes the existence of environmental risk in the absence of proof to the contrary. It places the onus of establishing the absence of environmental harm upon the source of risk. In situations where scientific uncertainty exists as to whether an activity could have an adverse effect, the precautionary principle requires that it should be considered to be as hazardous as it could be.

Lederer J. rejected the applicant's interpretation of Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal) that the precautionary principle was an overarching and strict consideration, and distinguished the case because in Lafarge the directors failed to consider the SEV at all,

[53] …The precautionary principle is a guiding principle not a statutory or regulatory requirement.

[54] The description, found in the preamble to the ESA… does nothing more than observe that the precautionary principle is taken note of by the United Nations Convention on Biological Diversity. Its presence in the preamble does not make it law. The preamble serves to introduce the ideas and concerns which inform the legislation that follows. It is worthwhile noting that, among the ideas found in the preamble, is the need to balance the concerns dealt with by the ESA with others…

[56] The reference to a “precautionary approach” in Davidson v. Ontario (Director, Ministry of the Environment),supra, does nothing other than describe the view of the Environmental Review Tribunal as to what the precautionary principle requires (see: para. [47], above). It should go without saying that a statement, in the decision of a Board describing a principle, does not make it a statutory, regulatory or legal requirement.

The applicant accepted the expert opinion on the majority of the SARs mentioned in the permit, but questioned the position in relation to the Butler's Gartersnake, Eastern Foxsnake and Colicroot. The applicant believed that the scientific data used in the opinion was insufficient, and that adaptive management strategies do not constitute a mitigation measure and would invariably fail. Lederer J. rejected this argument because it would require the court to actually go into the evidence, which would not be applying the proper deference required,

[88] As we understand it, adaptive management would require those engaged in the construction of the Parkway to continue to monitor how best to protect this species and to adapt its management until the best answer is found. In their report, the experts commend the “adaptive management strategy outlined…” (see: Expert Report on the Possible Effects of the Windsor-Essex Parkway on Colicroot, at p. 9). This approach is underscored by comments prepared for the Minister where the staff of the MNR said: “MNR will continue to work closely with MTO throughout the life of the project to review and revise the mitigation plans to better protect the eight species at risk covered by the Permit” (see: Summary of Stakeholder Comments and MNR Responses, at p. 12).

[89] There is no basis to suggest, as the applicant does, that reliance on adaptive management constitutes an error of law as opposed to requiring a demonstration of one year of survival of the plant species said to be at risk.

The Act does not require the Minister to accept every concern raised by the experts or any condition proposed, and a failure to do so does not constitute a lack of consultation where the expert reports are appropriately reviewed. Nor does the Act require the court to examine which information was presented to the Minister and determine what scientific evidence should have been provided to her.

The Minister is not required to go beyond the expert reports and consider the best scientific information available, consult with other agencies like Environment Canada, or identify other species that may be at risk but are not mentioned in the permit. The analysis document already stated that the identification of additional species may require additional compliance with the Act, or another permit. Section 17(2)(d)(v) of the ESA requires the Minister to consider reasonable alternatives, but does not require consideration of all possible alternatives or every reasonable alternative.

Reasonable Apprehension of Bias

The test for bias is derived from the Supreme Court of Canada case, Committee for Justice & Liberty v. Canada (National Energy Board),

 …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is ‘what would an informed person, viewing the matter realistically and practically – and having thought the matter through –conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly’.

The standard for reasonable apprehension of bias was enunciated in Baker v. Canada (Minister of Citizenship and Immigration),

47 It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Boniface, supra, at p. 1192…

The applicant's allegation of bias was based on the fact that the Minister who issued the permit had previously been the Minister of Transportation, the ministry that applied for the permit. The court held that the proper test in this on the basis of Old St. Boniface was whether whether the mind of the decision-maker was closed and was no longer capable of being persuaded to a different view, and pointed to evidence that the Minister did in fact consider the issues raised in submissions.

Balancing the Environment and Social and Economic Benefit

The court denied the application, noting an obvious tension between the possible impact on SARs and social and economic benefit, but held that at its core it was a matter of government policy based on opinions, not a quasi-judicial decision. The evidence undermining the Minister's decision was not appropriate for the court to review on the established level of deference to the legislature, and would ultimately put the court in the position of making a political decision, not a legal one:

[110] …The final demonstration of this lies in the submission of the applicant that the Minister erred in law by failing to account for “the uncertain status of the [Detroit River International Crossing] Project in Michigan…” The project has, apparently, not received the approvals, from the Michigan Legislature, necessary to proceed. It is the position of the applicant that the Minister erred in not accounting for the possibility that the approvals would not be forthcoming and that the result would be a “road to nowhere”. To accommodate this submission, the Minister would have to explain and the court would have to understand the obligations of the four governments to the partnership they formed, the status of any negotiations and the expectations for the political process in Michigan. This would deny the Minister the broad deference the law provides and take the court into the field of international relations where it has little, if any, business

The Supreme Court of Canada begins another season of hearings on Tuesday, October 11, 2011. If you click on the name of any upcoming case, you can find a summary of the issues as well as copies of factums that were filed by the parties with the Court's Registry.

The Sept. 30, 2011 issue of The Lawyers Weekly presents some of the big cases that will be heard this fall:

"Veiled witnesses, copyright wars and hate speech are some of the hot-button issues facing the Supreme Court of Canada (SCC) in the busy fall session starting next month."

Recently, I had occasion to look at the speeches and presentations made by members of ultimate courts of appeal – the Supreme Court and its equivalents. And Canada ranks somewhat disgracefully last in terms of making the speeches publicly available.

Eugene Meehan has monitored the court too for speeches and presentations, but his pickings are similarly slim in recent years.

Compare this record to Chief Justice French of the High Court whose seventeen speeches from 2010 and eleven to date from 2011 are available here

His predecessor Chief Justice Brennan's speeches from the Nineties are there prominently available.

The new UK Supreme Court has a decent record, though some falling off between 2010 and this year.

Even Chief Justice Balakrishnan has a better record in New Delhi.

The US Supreme Court seems to publish only speeches by justices nominated under Democratic administrations – Chief Justice Roberts speaks often but you won't find the speeches archived. I found remarkable a speech by Justice Ginsburg from July commenting on the most recent term.

All I can assume is that the updating of the SCC website has lost priority because of other pressures, or that the controversy from the conservative press' reaction to the Unwritten Constitutional Principles speech has led the court to permit publication of remarks in other places, but not the court's own website.

There is an important speech by Justice Ian Binnie entitled, Sondage Après Sondage . . . A few Thoughts about Conflicts of Interest” by Justice Ian Binnie, edited version of remarks at a panel discussion at Les Journées Strasbourgeoises in Strasbourg, France, on July 4, 2008, which illuminates the court's decision in R. v. Neil but you won't find it anywhere electronically, only in a conference volume published by Les Editions Yvon Blais.

And speaking of Justice Binnie, the entire transcript of his interview with the Globe and Mail's Kirk Makin is well worth reading.

I see that LexisNexis Canada has announced a new court docket service in Canada for dockets at the Federal Court, Federal Court of Appeal and Supreme Court of Canada:

From one intuitive online interface, LexisNexis CaseConnection Dockets enables fast access to key case information for ongoing and new proceedings filed with the Federal Court, Federal Court of Appeal and Supreme Court of Canada. This information helps law firm, government and corporate professionals stay on top of emerging legal issues and cases quickly, cost-effectively and securely.

The press release was not clear on cost of the service, although registration here was free. I registered and there appears to be small charges for searching dockets or running saved searches to monitor docket activity. At this stage, it does not appear that one would be able to obtain the full-text of court filings from the Federal Court or Supreme Court of Canada (or at least the press release is silent on this point).

In addition, their litigation services appear to open the door to lawyers and law firms to serve court documents with an option to also sign up for their US court dockets service (trade-marked as CourtLink, a "fee" service I already use to access US court full-text court filings).

Having now mentioned this service on SLAW, I imagine I will be contacted by my LexisNexis Canada rep who may be able to provide more information or clarification at which point I can update this post in the comments if there is any additional information.

In what is very welcome news, the Ontario Superior Court of Justice has released a practice direction, effective 1 October 2011, authorizing the use of reliable online versions of court decisions for filing in books of authorities and providing for special citation rules:

Practice Direction Regarding Filing of Judicial Decisions from Electronic Databases, and Regarding Citation of All Judicial Decisions

Practice Direction

Judicial Decisions from Electronic Databases

Effective October 1, 2011, copies of judicial decisions obtained from approved electronic databases are acceptable for filing provided the report of the judicial decision contains paragraph numeration consistent with the numbering of the paragraphs in the decision as released by the court. “Approved electronic databases” are databases that are dedicated to the publication of judicial decisions (e.g. Quicklaw, CanLII).

Parties should be aware that judicial decisions posted on electronic databases may be subject to correction or editing within a few days of the initial posting and, accordingly, parties should ensure that any decision obtained from an electronic database has not been subsequently amended.

Citation of All Judicial Decisions

Parties citing decisions from electronic databases should provide the citations for any paper versions of the decision in addition to the citation of the electronic database.

Parties should provide the date that the copy of any decision was obtained from an electronic database, as part of the citation information.

For decisions of the Ontario Superior Court of Justice released on or after January 1, 2010, parties should provide the neutral citation number (e.g. 2010 ONSC 1) in addition to the other required citations.

Osgoode Hall, Toronto
September 1, 2011

The Honourable Heather Forster Smith
Chief Justice, Superior Court of Justice

A few comments:

• "Approved electronic databases": The practice direction unfortunately gives what I assume is an unintentional, inadvertent limited view of examples by mentioning only Quicklaw or CanLII as approved electronic databases. Ideally, the practice direction would have preferred or encouraged the use of CanLII, where available, and then either referred more generically to the commercial databases or to include a more exhaustive listing (e.g., Westlaw Canada, BestCase, Maritime Law Book, SOQUIJ, DCL/REJB, and so on) or simply identified the major legal publishers as opposed to specific databases.

• Citation: I don't think I have a problem with including both a citation to the print-published version of a decision (if available) along with the online citation. I do find it interesting (and different) for the court to require "the date that the copy of any decision was obtained from an electronic database." If the court was going to otherwise change McGill Guide style, I would have liked if they had gone further to provide that, for decisions on CanLII, citing the neutral citation alone would be sufficient. In addition, the practice direction is ambiguous in its example of citing to the neutral citation for Ontario Superior Court decisions. A more preferable practice direction would have stated something along the lines that counsel are encouraged to file decisions from CanLII from all courts (not just Ontario) and when so doing may include only the neutral citation.

Despite these nit-picks, all-in-all this is a welcome and long overdue development.

Those watching Canadian copyright law developments are encountering a busier than usual season.

1. Heritage Minister James Moore hopes to re-introduce Bill C-32 on copyright reform this fall, without amendments, and he is also hoping that the bill is passed by Christmas. This will be the fourth attempt by the Canadian government to amend its copyright laws so that Canada may adhere to the World Intellectual Property Organization digital copyright treaties, and address various digital copyright issues as well as other much discussed copyright issues.
2. The Supreme Court of Canada will simultaneously hear on December 6 and 7 2011, five copyright cases which are a judicial review of Copyright Board decisions. The cases relate to the definition of research under fair dealing, the meaning of “to the public” in copyright law, and the scope of fair dealing in relation to educational institutions.
3. As of the start of the school year, many Canadian universities have opted out of repertoire licensing with the Canadian copyright collective, Access Copyright. These universities are now facing the challenge of clearing individual rights in content for classroom and other teaching-related uses.

In the upcoming months, we will have much to discuss in the copyright department.