Ontario Court of Appeal Hearing Some Appeals in Writing: Is this Good?

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In 4352238 Canada Inc. v. SNC-Lavalin Group Inc., 2020 ONCA 303, the Ontario Court of Appeal heard arguments on whether an appeal should be heard in writing only.  Deviating from the usual mode of oral and written submissions. The appellant objected to the matter being heard only in writing. Despite the objection, the court held that the appeal would proceed only in writing.

Justice Roberts wrote that the court has jurisdiction to order the mode of an appeal. The rules do not confer an absolute right to an oral hearing of an appeal.

Justice Roberts found that the matter was well suited to a written hearing. The appeal arose out of a narrow issue from an application for declaratory relief. It concerned the interpretation of a clause in a contract, with relatively straightforward facts, and the application proceeded on a paper record.

There was a mixed reaction of lawyers on Twitter to this decision. Some lawyers argued that this was a good use of judicial resources. Other lawyers argued that having only a written hearing would undermine the principle of open court and would leave clients feeling cheated out of due process.

I think the trend towards written hearings is a good thing.  First, the issue of open court can be addressed through making counsels’ written submissions publicly available on the Internet. This can be done in a way similar to the Supreme Court of Canada. Second, technology can revolutionize conventional working habits. As legal theorist Richard Susskind writes we must question if services must still be delivered “face to face”.

In Online Courts and the Future of Justice, Susskind writes that clients want outcomes that professionals bring. “These outcomes have two dimensions – practical results (a job done) and emotional effects (an appropriate feeling, perhaps of reassurance or confidence). And when these outcomes can be delivered in new ways that are demonstrably cheaper, better, quicker, or more convenient than the current offering, we can expect the market to switch to the alternatives.”

Susskind argues that we must not confuse how we deliver services with what we deliver. “It is to assume that there is something intrinsically valuable, indispensable, in our current ways of working. It is to fixate on today’s processes and disregard their broader purpose.”

In considering the future of our courts, we should ask whether the outcomes of today’s labour can be delivered in different ways while maintaining the principle of open court. Written hearings for appeals may be the new normal.  Perhaps oral hearings were not adding much value to judges in the majority of cases?

(Views are my own and do not reflect the views of any organization.)


Can Chatbots Answer Legal Questions?


The People’s Law School in British Columbia is offering free legal information through a Chatbot on Facebook.

@chatwithbeagle answers questions through Facebook messenger at https://www.messenger.com/t/chatwithbeagle.

The chatbot starts off saying:

I work for People’s Law School. I’m here to sniff out information to help you with common legal problems. My goal is to empower you to take action.
Recognize, though, that I’m a bot, not a lawyer. I can get you up to speed on the law and suggest tips to move things forward. But it’s on you to take the next step.
I can help with these topics. What’s on your mind?
The bot then provides options based on common topics. These topics include COVID19 related matters, consumer issues, money and debt, and work. The topics can then be narrowed down further by selecting subcategories.
Once the ultimate selection is made, the bot provides general information. The user can then get more information through conversing with the bot. The chatbot can even provide templates for letters and point users to the right place for launching complaints.
I was really impressed with the chatbot. I can see courts using chatbots in the future for handling repetitive inquiries and  potentially scheduling for matters.
(Views are my own and do not represent the views of any organization. This article was originally posted on slaw.ca)

Why the Saskatchewan Court of Appeal Has Barely Missed a Beat During the Pandemic

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The Saskatchewan Court of Appeal has been fully functional for almost the entire time period during the pandemic. The court has easily transitioned to web-based hearings at the end of March 2020, – as announced here. Hearings are being heard in their ordinary order, in the same numbers as before the pandemic.

Saskatchewan’s swift success in switching to online appeals is due to changes made over 8 years ago. Around 2012, the Court of Appeal switched to electronic filing and electronic case management by using the software eCourt

eCourt is an integrated electronic software system configured to meet the needs of the Saskatchewan Court of Appeal. It automates many of the Court’s procedures… eCourt has three … functions: (1) case management (2) document management and (3) e-filing… The e-filing component of eCourt enables anyone with access to the internet and a credit card (Visa or Mastercard) to submit documents electronically to the Registry. The e-filing service is accessible 24/7 to anyone …

The change to electronic filing was smooth and quick. In under a year, the court had a fully functional electronic system. Why did they succeed when other courts have failed?

  1. The Saskatchewan Court of Appeal has a culture of welcoming innovation.
  2. The changes were judge driven, and came from the top of the court.
  3. The court did not try to reinvent the wheel.

Instead of inventing new programs, the court licensed an e-filing system that had a proven track record of success. The system had been licensed in over 200 courts.

The Court of Appeal had the system modified to meet the needs of the Court and the Registry. The judges knew what features they needed and which features could be discarded.

The Court also ensured that the system would be easy for the users as well. eCourt is free for the public and does not require users to download or buy a separate program to access it.

There have been many advantages to using eCourt. This includes cost savings, time savings, and being able to pivot when necessary. While other courts have struggled to adapt during the pandemic, the Saskatchewan Court of Appeal has barely missed a beat.

(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca.)


Helpful Tips for Drafting Affidavits

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Background Rules on Drafting Affidavits:

  1. Affidavits must be based on what the deponent saw, what they heard, or what they did.
  2. Affidavits must be written in the first person, state the full name of the deponent, and if the deponent is a party or a lawyer, officer, director, member or employee of a party.
  3. Affidavits should state only facts. They should not include legal argument. They should not include self-serving protestations of surprise, shock, or disgust.
  4. Affidavits must be divided into paragraphs, numbered consecutively, with each paragraph being confined to one statement of fact.
  5. The facts that should be included are the ones that establish the elements of the test. For example, if you are seeking to change the venue of a matter, include the facts relevant to the test that the judge must consider in making that decision.
  6. The affidavit should be concise and clear.
  7. Affidavits must be signed by the deponent and sworn before a commissioner or notary public. (see Rule 4.06 of the Rules of Civil Procedure)


Hearsay in affidavits:

  1. Rule 4.06(2) of the Rules of Civil Procedure states that affidavits are restricted to the facts within the deponent’s personal knowledge or to the evidence that the deponent could give if they were testifying as a witness in court.
  2. Hearsay may be included in affidavits in specific circumstances.
  3. An explanation of hearsay can be found at the BC Provincial Court Website.
  4. For example, on an interlocutory motion, a deponent may give evidence that a letter was sent by someone else and attach the letter as an exhibit.
  5. If hearsay is included, the deponent must include the identity of the source of the information and the grounds for the belief in its veracity.  Rule 39.01(4) of the Rules of Civil Procedure states that: “An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”
  6. Hearsay in affidavits must be non-contentious (Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069).
  7. The word “contentious” means “likely to cause an argument; disputed, controversial” (Bilotta v. Booth, 2019 ONSC 5956).
  8. Affidavits should not include opinions, unless it is from an expert witness.

(Views are my own and do not represent the views of any organization. This is not intended to be legal advice, and is for educational purposes only. heatherdouglaslaw.com)



Virtual Identification, Verification, and Witnessing of Clients During COVID-19

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During the OBA Law Practice Management Section series we discussed Virtual identification of client identity: What tools are you using?.

You are required to identify your client when you provide legal advice. Identifying the client means obtaining certain basic information about your client and any third party instructing you. This information includes items like the person’s name, address, and occupation.

Verification is different than identifying your client. Verifying your client’s identity means looking at an original identifying document from an independent source. These documents can include a passport, driver’s licence, or a birth certificate. Lawyers can take the extra step of verifying a driver’s licence on the Ministry of Transportation website.

Verification is required when a lawyer engages in or is instructed with respect to payment or receipt of funds. By-law 7.1 sets out further details.

The Law Society of Ontario has provided guidance on the requirement of face to face verification in the time of COVID-19. Face to face verification can occur virtually.

If the client’s identity card (e.g. driver’s licence) has expired on or after March 1, 2020, then lawyers can still consider the card as valid during the COVID-19 crisis.

Lawyers should ask their clients to send the identifying document in advance of verifying the client’s identity online. They should look for a high resolution image, a valid identification card that is current, and should record the method and date that the identity is verified.

Lawyers should also document why they were unable to meet in person, the start and end time of the meeting, and the method of communication.

For commissioning and notarizing documents, lawyers can commission and notarize virtually. However, documents that must be certified as original copies must be physically inspected at a later date.

The Electronic Commerce Act, 2000, sets out when electronic signatures are allowed. Electronic signatures are allowed in most cases, except for the items listed under subsection 31(1). Recently, the Ontario Government has modified subsection 31(1) to allow wills and powers of attorney to be witnessed virtually.

While meeting with clients online, lawyers can record meetings with clients online. However, the client must agree to it in advance, and ideally agree to it in writing.

The following tools can be used to speak online with your client:

  • Office 365 (using Teams)
  • GoToMeeting
  • FaceTime
  • WhatsApp
  • Cisco Webex
  • Google Duo
  • Zoom

Wired has set out a comprehensive review of the privacy features of some of these tools in the article How to Keep Your Zoom Chats Private and Secure.

While speaking with clients online, lawyers should look out for red flags. The Anti-Money Laundering and Terrorist Financing Working Group has set out some red flags. These include: the client having no email address, no physical address, foreign buyer, p.o. box, shell business, being paid an unusually high fee for little to no work, or being unclear as to why you are being chosen do the job.


(Views are my own and do not reflect the views of any organization.) heatherdouglaslaw.com 

Using Apps for Contact Tracing: Can We Protect Privacy?

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Governments in Canada have yet to officially use phone data to track and trace people who may be infected with COVID-19. However, there has been discussion around using a system in Canada similar to Singapore.

In Singapore, the app being used to track and trace people who may have contracted COVID-19 is “TraceTogether”. TraceTogether uses bluetooth technology to track nearby phones. People can then opt-in to have their information provided to the Ministry of Health if they test positive for COVID-19. Once the Ministry has the information, it alerts people who came across the infected person.

In Canada, a new app may not be necessary, but may be desired to ensure privacy by design. The apps on our phones have already been tracking us, analyzing us, and marketing to us – with varying degrees of meaningful consent. For example, Google, Facebook, and Apple are tracking you. Even seemingly innocent apps like weather apps are tracking you.

In the 2019 article “Your Apps Know Where You Were Last Night, and They’re Not Keeping It Secret“, the New York Times highlights the stealthy ways we are being tracked.

It’s a hot market, with sales of location-targeted advertising reaching an estimate $21 billion dollars this year…

Businesses say their interest is in the patterns, not the identities, that the data reveals about consumers. They note that the information apps collect is tied not to someone’s name or phone number but to a unique ID. But those with access to the raw data — including employees or clients — could still identify a person without consent. They could follow someone they knew, by pinpointing a phone that regularly spent time at that person’s home address. Or, working in reverse, they could attach a name to an anonymous dot, by seeing where the device spent nights and using public records to figure out who lived there…

Google and Facebook, which dominate the mobile ad market, also lead in location-based advertising. Both companies collect the data from their own apps. They say they don’t sell it but keep it for themselves to personalize their services, sell targeted ads across the internet and track whether the ads lead to sales at brick-and-mortar stores…

With respect to Coronavirus, Google has already released a report using data about our whereabouts, titled Community Mobility Report. The Report highlights the mobility trends across Canada. Retail and recreation is down, while residential time has increased. Similarly,Facebook has been gathering data on our location and sharing it with researchers at Harvard.

The New York Times recently reported that “Location Data Says It All: Staying at Home During Coronavirus is a Luxury“. Jennifer Valentino-Devries, Denise Lu, and Gabriel Dance write that “The wealthiest people, those in the top 10 percent of income have limited their movement more than those in the bottom 10 percent of the same metro areas, according to a Times analysis of cellphone location data.” Lower-income neighbourhoods are being hit the hardest, while wealthier people are better able to stay home. The authors quote Adie Tomer, a fellow at the Brookings Institution.

“Covid-19 is exposing a lot of the structural disadvantages that low-income people face,” including a lack of job security and uneven access to health care, said Adie Tomer, a fellow at the Brookings Institution who has studied the essential work force. “The well-off are employed in industries where they are at a desk, and so there are some advantages built into these high-income neighborhoods during this pandemic”…

Researching how COVID-19 spreads is important. Being able to contact trace people who may have COVID-19 is important. However, we need to make sure that privacy is not sacrificed in the process.

In Canada our government should aim to protect personal data while contact tracing and trying to analyze data about movement. In the article, “Why data protection law is uniquely equipped to let us fight a pandemic with personal data,” it is written that “the goal of data protection is to ensure that information relating to individuals is collected and used in such a way that all their other fundamental rights are protected. This includes freedom of speech, the right to private life/privacy, the right to life, the right to security, the right to non-discrimination…”

EU privacy experts have pushed for a decentralized approach to COVID-19 contact tracing. More information can be found in the article by Tech Crunch.

Similarly, a peer-to-peer app-based system for contact tracing was promoted in article in the Washington Post “We need tech and government help with contact tracing. That doesn’t have to mean Big Brother.”

Containing the virus requires that certain rights be curtailed, but we should not sacrifice our privacy in an unreasonable or unnecessary manner.

(Views are my own and do not reflect the views of any organization. This post was originally posted on slaw.ca)



Service and Filing by Email: Courts Are Being Forced to Adapt

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In March 2020, courts across Canada have been forced to confront issues arising from social distancing measures. The Supreme Court of Canada is now allowing documents to be filed by email, with original paper copies to be filed subsequently at a later date. Further information can be found here.

Similarly, the Ontario Court of Appeal is allowing material to be filed by email. More information can be found here.

In Morris v Onca, 2020 ONSC 1690, Justice Myers dealt with an urgent matter, wherein he allowed material to be filed by email. In this case, the judgment creditor alleged she was at risk of the judgment debtors moving assets abroad to avoid paying her back. The case conference was scheduled to proceed on Monday, March 23, 2020.

In anticipation of the case conference, Justice Myers ordered that materials for the motion be filed by email to the Motions Coordinator in searchable PDF Format, copying all parties. Service of the materials could be made without acknowledgment of receipt for email service. No Books of Authority or statutory materials were to be sent. References to case law or statutes could be made by hyperlink to CanLII. The motion was to be heard by Skype or Microsoft Teams.

Justice Myers’ reasonable solution should be copied by other judges. We should consider extending this approach beyond the COVID-19 crisis. We should take a hard look at how paper moves through our courts and how we can eliminate paper.

Our court rules should be revised to facilitate service and filing by email. Serving and filing by paper should be the exception. Ideally, our courts will eventually have electronic files that can obviate the need for email. Instead litigants and judges would be able to upload documents to the file.

(This article was originally posted on slaw.ca. Views are my own and do not represent the views of any organization.  heatherdouglaslaw.com)


Changes in Court Process due to COVID-19 Social Distancing

This post is from an interview with lawyer Heather Hui-Litwin, co-founder of Self-Rep Navigators. It is posted on Self-Rep Navigators website.

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Courts in Ontario have implemented changes to accommodate the rapidly evolving Covid-19 situation. Lawyer Heather S. Douglas explains to Heather Hui-Litwin (Self-Rep Navigator Co-founder) what these changes are.

QUESTION 1: What is the current situation on court closure? Are all Ontario courts closed or just GTA? Which website is best for this update?

ANSWER: Around March 16, 2020, the Ontario Superior Court of Justice, the Ontario Court of Justice, and the Small Claims Court suspended all hearings until further notice. Only emergency matters will be heard by the court. It is my understanding that all scheduled matters up to May 31, 2020 are adjourned, except for urgent matters. https://www.ontariocourts.ca/scj/

QUESTION 2: So, what is considered an “urgent matter”?

ANSWER: The following is considered an urgent matter: public health and safety, child and family protection matters, and urgent civil matters where there is significant financial repercussions if there is no hearing. https://www.ontariocourts.ca/scj/covid-19-suspension-fam/

The Supreme Court of Canada is allowing filing of all documents by email. https://www.scc-csc.ca/ar-lr/notices-avis/20-03-eng.aspx

In my opinion, the best place to find information is the Twitter page: https://twitter.com/SCJOntario_en

QUESTION 3: Court procedures have all kinds of deadlines. Do you know what the court is doing about this? For example, what if you want to sue someone, and the limitation period is due say next week, what should you do?

ANSWER: Under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, section 7.1(2), an order was made to suspend any limitation period for the duration of the emergency. The suspension is retroactive to March 16, 2020. Any provision of any statute, regulation, rule, or bylaw establishing any period of time in which a step must be taken in Ontario, subject to the discretion of the court, tribunal, or a decision maker, is suspended from March 16, 2020 for the duration of the emergency.

QUESTION 4: Has the Law Society of Ontario changed the new client intake identification and verification requirements to accommodate self-isolation?

ANSWER: The Law Society of Ontario has provided the following guidance:

At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:

  • Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
  • If only client identification is required, lawyers and paralegals are able to comply with their professional obligations without meeting face-to-face or via video conference.
  • As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. Nonetheless, lawyers and paralegals should conduct a risk assessment to ensure that it is appropriate in their circumstances to verify identity via video conference. If a lawyer or paralegal chooses to verify identity via video conference, they should also attempt to manage some of the risks associated with this practice as outlined below…


The Future of Our Courts: Online Courts

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“The Future Has Arrived — It’s Just Not Evenly Distributed Yet.” – William Gibson

In “Online Courts and the Future of Justice”, Richard Susskind proclaims that our courts are moving towards radical change. Conceived in the dark ages and modified in the 19th century, our courts are now overwhelmed by paper and archaic processes. The operations of our courts seem increasingly out of place in our digital society.

Susskind predicts that we will see court services delivered in a blend of physical, virtual, and online courts. The 2020s will be a period of redeployment of lawyers and judges. By 2030, our courts will be transformed by technologies, many of which are yet to be invented.

Access to justice requires that we work towards transformation of our courts. There is a growing number of self-represented litigants and even more people that opt-out of using our courts altogether. Whether that be due to money, inconvenience of using the courts, or the complicated processes that seem decipherable only to lawyers, people feel excluded by the court system.

Susskind writes that online services can bridge the gulf between people knowing the law and enforcing their rights. These services can take the form of virtual hearings or online courts.

In virtual hearings, some or all of the participants participate by video. This includes the judge, lawyers, court clerks, and clients. Events happen contemporaneously.

In online courts, the evidence, arguments, and judicial decisions are submitted through an online platform. There is no oral hearing. Events do not happen contemporaneously. The process is akin to an email chain.

Susskind champions the use of online courts for low-value claims, which tend to be dominated by a small number of life events. The adversarial system can still be protected in this forum. At the heart of the adversarial system is not the oral hearing but that arguments are presented by both sides to an impartial adjudicator, whose decision is backed by the coercive power of the state.

Susskind sees online courts providing a far wider range of services beyond the adjudication of claims. Additional services include:

  • tools to help the users to understand their rights, duties, and options available to them;
  • facilities that assist in marshalling evidence and formulating arguments; and
  • systems that promote alternative dispute resolution.

These tools would incorporate animations, cartoons, videos, flowcharts, and other visual guides.

The first generation of online courts would involve humans delivering decisions through an online platform. In the second generation of online courts, artificial intelligence would be used to adjudicate and contain claims.

Artificial intelligence systems would help users categorize their problem, understand the applicable law, guide them through available remedies, and facilitate settlement by letting users know the likely outcome of the case.

The tasks of building online courts include redesigning the underlying processes, drafting new rules of procedures, consultation on new services, piloting new services, procurement, system development, adjusting services, training, and roll-out.

Presently, the Civil Resolution Tribunal in British Columbia is the most advanced online court in the world. Launched in 2016, the tribunal resolves claims under $5,000, condominium disputes of any amount, and motor vehicle cases up to $50,000.

  • There is a tool that helps users understand their legal position, using a rule based expert system called Solution Explorer.
  • Then there is an online negotiation facility that allows users to try and reach an agreement informally between themselves.
  • Finally, there is an adjudication process.
  • All CRT forms can be submitted in paper or online. However, only 1-2% of people choose to do so in paper.

In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”

Susskind encourages designers to think of the outcome that litigants want. Litigants do not want courts, judges, or lawyers. “They want to not have a problem at all. They want their disputes resolved with finality…Outcome thinking leads us to worry far less about perpetuating old processes and methods than whether reforms will bring about better results.”

Controversially, Susskind proclaims that “we should dilute the adversarial process if it enables us to deliver court services more widely, more quickly, at a lower cost, in a less combative way, and in a form that is intelligible to lay users.”

(Views are my own and do not reflect the views of any organization. This post was originally published on slaw.ca. heatherdouglaslaw.com)

When are Contracts of Adhesion Binding?

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In the Internet age, contracts of adhesion are common. Consumers routinely confirm their acceptance to terms and conditions that they have not read or understood.

In Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, the court addressed when contracts of adhesion are binding. In this case, a snowboarder from Australia was injured in the terrain park. He brought an action for negligence, the failure to warn, and for breaching the Occupiers Liability Act. The BC Court of Appeal found that the trial judge erred in upholding the waiver.

The plaintiff Mr. Apps raised “an issue that has troubled the courts ever since the Industrial Revolution: under what circumstances is such a waiver in a contract of adhesion (where the consumer must take it or leave it) binding on the consumer? This has been of particular concern where the waiver includes words excluding liability for the service provider’s own negligence.”

In the case of Mr. Apps he did not click any buttons or sign any forms. What brought the terms of the waiver to his attention?

Above the ticket booth was a sign that contained the terms of the waiver: “… As a condition of use of the ski area and other facilities, the ticket holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing…”

The Court of Appeal held that the defendant Grouse Mountain could only contract out of its duty of care under the Occupiers Liability Act if it took reasonable steps to bring the waiver clause to the plaintiff’s attention. The court held that insufficient steps were taken to bring the waiver of liability clause to the plaintiff’s attention. The more onerous the term, the more steps that must be taken to bring attention to the terms.

At paragraph 84, Justice Grauer wrote that “It will not avail the consumer to say, ‘I did not read the notice’, if the mountain took reasonable steps to draw the own negligence clause to the consumer’s attention. On the findings of the judge, it cannot be held to have done so.”

The trial judge was only permitted to consider what was posted on signs Mr. Apps could have seen at or before the time he purchased his ticket. “By the time Mr. Apps arrived at the Terrain Park, he had paid for his non-refundable ticket, taken the lift up the mountain, and had begun snowboarding. It was far too late to give notice of what was in the waiver. That had to be done at or before the ticket booth.”

After taking the “clear and easy to read” signs at the Terrain Park out of the equation, the court was left with the following findings from the trial judge.

•         The sign at the ticket booth was “difficult to read”;

•         The own negligence exclusion was “not highlighted or emphasized in any way”, but was buried in small print among many commas and semi-colons;

•         “It is unrealistic to believe that a person approaching the ticket booth would stop in front of the window to read the sign.”

Interestingly, Mr. Apps also signed a season pass for Whistler Mountain. “Of course, having signed it, he would be bound by its terms in relation to Whistler Mountain notwithstanding that he did not read it.”

Justice Grauer held that only actual knowledge of the terms through previous dealings is relevant. In this case, previous dealings with Whistler was not relevant. Mr. Apps did not read the Whistler season pass agreement. Constructive knowledge did not apply, and could not impute knowledge to him for the Grouse Mountain.

Despite the thoroughness of the Court of Appeal’s decision, the question remains for contracts of adhesion formed over the Internet – under what circumstances should a waiver of liability be binding? How many people read and understand those terms? For example, how many people are actually consenting to apps selling their data?

(Views are my own and do not represent the views of any organization. This article was originally posted on slaw.ca)