Privacy Rights in the Internet Age and The New Tort of Public Disclosure of Private Facts

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“Society has been scrambling to catch up to this problem [the publication of intimate photos or videos online without consent] and the law is beginning to respond to protect victims.” – Justice Stinson in Jane Doe 464533 v N.D., 2017 ONSC 127

Gradually courts have been awarding damages for the tort of public disclosure of private information. The tort of public disclosure of private information consists of the following elements: (a) the defendant publicized an aspect of the plaintiff’s private life; (b) the plaintiff did not consent to the publication; (c) its publication would be highly offensive to a reasonable person; and (d) the publication was not of legitimate concern to the public.

In Jane Doe 72511 v N.M., [2018] OJ No. 5741, Jane Doe sued her ex-boyfriend for abusing her and for uploading an intimate video of them online. Jane Doe also sued her abuser’s parents for failing to stop the abuse in their home.

One day, after a highly violent encounter, Jane Doe reported the defendant N.M. to the police. “N.M. forced Jane into his car… N.M. grabbed her head and smashed it into the passenger side window. Jane pulled the mirror down and, seeing that she was bleeding, ripped off the sun visor in shock… N.M. was angry that Jane had damaged the car. He parked in the driveway and came around to her side of the car… he dragged her out of the car by her feet and shoved her into his parents’ house.” He was charged and later convicted of assault.

In retaliation for his criminal conviction, N.M. uploaded a video of them engaged in a sex act. The video was seen over 60,000 times and downloaded an unknown number of times. The video has since been removed at the request of the plaintiff.

In deciding the civil suit, Justice Gomery found that N.M. was liable for assault, battery, and public disclosure of private information. He was ordered to pay her $20,000 in general damages for the abuse and $100,000 for the posting of the video online ($75,000 for general and aggravated damages and $25,000 in punitive damages). His parents were also found to be jointly and severally liable for Jane’s damages from the assault and battery as occupiers of the house. As occupiers of the house, they had a duty to take steps to keep her safe while she was there.

In recognizing the tort of public disclosure of private information, Justice Gomery reaffirmed that the courts should provide a civil recourse for victims of public disclosure of private information. Justice Gomery wrote that our courts need to “address a challenge posed by new technology… Failing to provide a remedy in this case would deprive Jane of recourse in the face of the breach of her privacy rights.”

In this case, the website was not sued for the publication of the video. Perhaps the company running the website was outside the jurisdiction of Canada. In which case, the best recourse may be to pressure the company in charge of the domain name registration to disable the site’s web address. (see the NYT article “Shut the Site Down,’ Says the Creator of 8chan, a Megaphone for Gunmen.) However, if there was a connection to Ontario, then courts should be willing to assume jurisdiction and sanction a company in the appropriate circumstances.

In the article “Ontario’s New Invasion of Privacy Torts”, Sarit Mizrahi writes that “the courts should be willing to treat a company’s decision to utilize inadequate security measures as sufficient to engage the tort of intrusion upon seclusion and public disclosure of private facts where the risk of privacy is appreciated.” Malicious users exist beyond revenge porn, including hackers. Hackers can exploit security flaws in our devices to breach privacy rights and disclose private information. For example, hackers can gain access to a television’s microphone and listen in on you in your home; hackers can gain access to a baby monitor; they can access a company’s database of credit cards and release the information.

Mizrahi writes that “While the law obliges these companies to protect the information and devices against unauthorized access, the reality is that the steps taken are often insufficient to abolish the security flaws exploited by malicious users… users are often left without a sufficient legal remedy for this serious invasion of their privacy.” By recognizing a civil right of action, the courts are enabling individuals to enforce their privacy rights.

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

Is Selling Prescription Eyewear Online Legal?

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Nowadays you can buy almost anything online: clothing, food, glasses, jewelry, medication, mattresses, and the list goes on. So is there a problem with buying prescription eyewear online?

The College of Optometrists of Ontario thought so. The College launched a court application against Essilor Group Canada Inc. for operating the online retailer Clearly.ca and Coastal. Almost every action taken by Clearly and Coastal happened in British Columbia. Consumers would order the glasses and contacts online, using a prescription from their doctor, and the glasses and contacts would be shipped from British Columbia. By ordering online, consumers would miss out on having their pupillary distance tailor-measured by a professional for their specific eyewear.

In the case College of Optometrists of Ontario et al v. Essilor Group Canada Inc., 2018 ONSC 206, the College argued that there was a risk of harm in allowing prescription eyewear and contacts to be sold online. Essilor argued that the College was actually concerned with maintaining a monopoly in Ontario by preventing online retail from operating in Ontario.

Justice Lederer ruled that the company violated the Regulated Health Professionals Act by accepting orders for prescription eyewear from Ontario residents in British Columbia and delivering them to Ontario residents. “Eyeglasses and contact lenses are to be dispensed with the proper involvement of an optometrist or optician licensed in Ontario.”

The Ontario Court of Appeal reversed the decision of Justice Lederer. Justice Brown, writing for the court, reasoned in College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265, that a customer’s placement of an order from an Ontario-located device does not amount to dispensing eyewear. At paragraph 126, Justice Brown writes that: “the act of delivering eyewear to a person primarily has a commercial aspect, not a health care one… Where the supplier of the prescription eyewear operates in another province and complies with that province’s health professions regulatory regime when filling an online order placed by an Ontario customer, the final act of delivering that product to the Ontario purchaser does not amount to the performance of a ‘controlled act’ by the supplier.”

Justice Brown further wrote that applying the Regulated Health Professionals Act to the online sale of eyewear would grant a commercial monopoly to Ontario’s optometrists and opticians over the distribution of orders for prescription eyewear. If the legislature meant to do so, then it would need to legislate it explicitly. 

I anticipate the courts will be dealing with similar cases by regulatory bodies in the years to come. As the internet changes the way services are delivered, regulatory bodies will continue to question whether:

  • (a) there has been the unauthorized practice of medicine, law, engineering, teaching, accounting, and so on; and
  • (b) if the public’s safety has been undermined by providing these services online. 

In many instances, online services are a safe alternative to in-person services, like Telemedicine. 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.”

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

Book Review: The Contracts Handbook – A Practical Guide to Reviewing, Revising and Negotiating Commercial Contracts

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In “The Contracts Handbook: A practical Guide to Reviewing, Revising, and Negotiating Commercial Contracts”, Margaret Kerr explains contracts in simple terms. An excerpt of the book can be found here: The Contracts Handbook.

Most contract textbooks are written with the litigator in mind. Instead, this textbook is written for those that negotiate and draft contracts.

The textbook contains:

  • explanations of what makes a contract legally enforceable,
  • the significance of common clauses and when to use them,
  • how to amend an existing agreement,
  • a useful checklist for preparing a contract, and
  • sample contracts.

Kerr rightly points out that most contract textbooks do not contain a sample contract. A law student could easily study contract law for an entire year without reading a full contact.

Kerr writes that “textbooks are awash in Hail Mary Pass case law generated by litigators clutching at the hope of winning a dismal case… This book will instead set out the straight and narrow path, a conservative and safe statement of Canadian contract law…” Kerr accomplishes this goal.

I highly recommend this book to contract law students who want to supplement their assigned readings and to non-lawyers that engage in contract negotiations and preparation.

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

 

 

The Importance of the Principle of Open Court

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In the decision, Danso v Bartley, 2018 ONSC 4929, Justice Myers discusses the law regarding publication bans. Publication bans are rarely granted.

In Danso v Bartley, Ms. Bartley was claiming that Mr. Danso was the father of her child. In response, Mr. Danso launched a lawsuit. Mr. Danso claimed that he did not have sex with her. He requested a paternity test and a publication ban on the lawsuit, amongst other things. He claimed that publication of this lawsuit would damage his reputation. Danso is a religious leader. He operates 17 churches, including a chapter in Toronto.

At para 30, Justice Myers writes that when someone asks to seal court records or to prevent publication of court proceedings, it affects the principle of open courts. “The open courts principle protects the public’s right to know about court proceedings in Canada.” A public trial allows the public to scrutinize a court proceeding.  It is difficult for people to attend court. Those who cannot attend often rely on the press to inform them about the evidence presented, the arguments made, and the comments by the judge.  “The open court principle has been described as ‘the very soul of justice’, guaranteeing that justice is administered in a non-arbitrary manner”.

Justice Myers did not grant a publication ban. At para 42, he explains that it is in the public interest that discussions be based on facts rather than rumours and allegations. “Suppression of truth and public court proceedings after widespread attention across the county does not protect anyone. Mr. Danso should be free to respond to whatever is already affecting his reputation in his congregations. If members of a congregation know of the paternity issue, I cannot see any harm to the members or to the congregation of knowing that Mr. Danso sued for a DNA test and the DNA test proves the allegation of paternity is true.”

Justice Myers further explains that preventing the proceedings from being public undermines why courts have the power to make orders. Part of the reason courts’ have the power to make orders is to allow the public to review and scrutinize court proceedings. Myers J. eloquently writes that “Preventing this use of court proceedings deprives the public of a vital benefit that underpins society’s tacit agreement to empower civil courts.”

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

Moving for Partial Summary Judgment: Mason v. Perras Mongenais

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In Mason v Perras Mongenais, 2018 ONSC 1477, Mason sued two law firms and a lawyer for professional negligence. Mr. Mason hired the lawyer Mr. Chambers to represent him in his divorce proceeding. During the divorce proceeding, Mr. Chambers retained a tax lawyer (Mr. Perras) to advise on tax matters within the divorce proceeding. Mr. Chambers asked Mr. Perras to answer three questions. Mr. Perras answered the questions. However, during a settlement conference for the divorce proceeding before a judge, Mr. Chambers called Mr. Perras to answer a question “on the fly”. The client Mr. Mason then later alleged that the lawyers did not consider the tax consequences for the agreement that was made at the settlement conference.

The defendant law firm Perras Mongenais brought a motion for a partial summary judgment (meaning that the lawsuit would continue against the other defendants but not the law firm). A motion for partial summary judgment is reserved for special cases. Specifically,  for when an issue can be easily bifurcated from those in the main action. If the risk of duplication and inconsistent findings is high by bifurcating the issues, then a trial is required.

Justice F. L. Myers granted the motion for the partial summary judgment. Justice Myers looked at what the reasonably competent practitioner would do in the circumstances. He found that “Mr. Perras provided correct answers to the questions asked as circumstances allowed.”

In granting the motion for the partial summary judgment, Justice Myers wrote that the culture shift is required. Courts should default to resolve litigation without a trial when it can be done so fairly. “The trial process is so slow and expensive that its use has made civil justice inaccessible and unattainable for most Canadians.”

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

 

 

Time for a Culture Shift: Seepa v Seepa

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Procedural gamesmanship, incessant delay, and discovery without end have brought the civil justice system to the brink of a crisis.” Justice Myers in Letang v. Hertz Canada Limited, 2015 ONSC 72

Delay is endemic in civil cases.  It is a disease. It eats away at our justice system. And there appears to be no end. Especially considering the small budget for our courts.

In Seepa v. Seepa, 2017 ONSC 5368, Justice Myers attempted to address our complacency with delay. In Seepa, the siblings were fighting over their deceased mother’s assets. The mother had essentially cut one of her sons out of the will. As a result, the disinherited son wanted to challenge the division of property. He raised the issues of his mother’s incapacity, his mother being subject to undue influence, and the breach of fiduciary duty.

However, to launch his lawsuit, the disinherited son needed his mother’s medical and legal records. He needed the records to show some evidentiary basis to proceed with his claim. (Courts have enacted this threshold to protect estates from being wiped out by court processes when there is no evidence of impropriety.)

Justice Myers questioned whether he should grant access to the medical and legal records.  He raised the concern of a fishing expedition into the “deceased’s privileged legal files and most private, personal medical records”.  Noting that there is something innately offensive about an excluded relative romping through a testator’s most private records on meagre allegations. In spite of this, the inheriting son agreed to allowing his brother access to the records.

Justice Myers called for a for a shift away from automatically granting court orders on consent of the parties. “The court should be very reluctant to consign estates and beneficiaries to intrusive, expansive, expensive, slow, standard form fishing expeditions that do not seem to be planned to achieve the goals of civil justice for the parties.” The granting of a court order for access to medical and legal records further delays proceedings as the parties have to wait for the records to come in.

In the end, Justice Myers granted the order. The disinherited son was to pay the bills for the records. The inheriting son was hopeful that the “sunlight” would facilitate resolution between them. I hope for all their sake that the sunlight pours in.

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

 

 

 

 

 

Saaditi v Moorhead: Case Comment

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In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

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