Canadian Information and Privacy Cases of the Year

It’s early for a year-end list, but I want to leave time for a response before we all boot down for the holidays. Here’s a list of the top Canadian information and privacy cases of the year. Comments are invited.

#1 Ontario (Public Safety a­­nd Security) v. Criminal Lawyers’ ­Association. The Supreme Court of Canada recognizes that the Charter gives the public a limited right of access to government information. A limited but profound new right. From June.

#2 R. v. National Post. In three separate decisions, the Supreme Court of Canada unanimously holds that privilege claims made by newsgatherers to protect information received in confidence should be justified on a case-by-case basis. From May, and echoed in October in Globe and Mail v. Canada (Attorney General).

#3 State Farm v. Privacy Commissioner of Canada. The Federal Court holds that the determining factor for PIPEDA application is the nature of the underlying activity rather than the mere presence of a commercial exchange between parties engaged in the collection, use and disclosure of personal information. From July.

#4 R. v. Gomboc. A yet-to-be resolved dialog between Supreme Court of Canada judges suggests that customer information, in particular when governed by terms that permit disclosure to law enforcement, is less likely to be protected by section 8 of the Charter. From November.

#5 Liquor Control Board of Ontario v. Magnotta Winery Corporation. The Ontario Court of Appeal leaves untouched a lower court judgment that suggests privileges recognized at common law and rooted in the public interest (such as settlement privilege) can trump a statutory right of access to government information. From October.

#6 Szeto v. Dwyer. Chief Justice Green of the Newfoundland and Labrador Court of Appeal writes a judgement with a number of broad statements about the proportionality principle and how it ought to be applied by courts in crafting discretionary orders under civil rules (including production orders). From June, and followed by an additional contribution to the topic of proportionality in September in Kent v. Kent.

#7 Factor Gas v. Jean. The Ontario Superior Court of Justice – Divisional Court fleshes out the requirements for an Anton Piller order and invites a conservative application of discretion. A very principled judgment on a very relevant remedy. From July.

#8 Bernard v. Canada (Attorney General). The Federal Court of Appeal quashes an administrative tribunal consent order for failure to consider non-party privacy interests and orders notice of rehearing to be given to the Office of the Privacy Commissioner of Canada. From February.

#9 Randall v. Nubodys Fitness Centres. The Federal Court says that an award of damages under PIPEDA should only be made in “egregious situations.” From June, and echoed in November in Stevens v. SNF Maritime Metal Inc.

#10 Soup v. Blood Tribe Board of Health. The Federal Court says it has no jurisdiction under PIPEDA to order the correction of a record of personal information. From September.

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