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Technology has opened up a wealth of information for lawyers conducting investigations through surveillance for use in court cases, but they need to make sure the collecting of such information is within the bounds of Canada’s privacy rules, experts at a Toronto seminar said last week.
Surveillance is treated like all types of evidence in court, said David Cherepacha, a partner at Davies Howe LLP, who was speaking at a seminar organized by his firm and the Association of Corporate Counsel. And even though gathering the information might violate Canada’s privacy legislation, the Personal Information Protection and Electronic Documents Act, it does not mean the evidence is not admissible in court, he added.
“Commencing a legal action implies consent under PIPEDA,” said Cherepacha.
Beyond traditional surveillance for which organizations or lawyers might hire professionals to obtain video evidence, the proliferation of social media like Facebook has added a whole new level. Ava Kanner, another partner at Davies Howe, told in-house lawyers in attendance several court decisions involving evidence taken from Facebook have weighed in trying to reach a balance between admitting evidence and protecting privacy.
While courts have ruled that the mere existence of a Facebook account is not enough to require its postings be produced in discovery, they have also ruled plaintiffs cannot have serious expectations of privacy when about 350 people are granted access to a private site, Kanner said in her presentation. She gave examples from one of her own cases that saw a Newmarket, Ont. man lose a court case involving a disability claim, when photos on Facebook showed he was involved in heavy physical activity with his family.
Beyond Facebook, getting information when a hard drive is involved, for example when an employer wants to access private of activity of an employer, is something courts have also looked at. “It’s not a certainty that you will get access,” said Kanner. “You have to convince a judge it is relevant and reasonable to privacy.”
Jodi L. Skeates, legal counsel with the Canadian Life and Health Insurance Association Inc., said organizations should craft defensive strategies that allow for corporate responsibility in the appropriate use of surveillance. She said surveillance is governed by a series of regulations, ranging from rules of evidence and civil procedure to employment contracts and privacy laws.
PIPEDA is key, but it doesn’t cover all aspects of surveillance, said Skeates. It  applies to organizations that collect, use, or disclose personal information in the course of commercial activities, she said, and also to the personal information about employees of organizations engaged in federal works, undertakings, or business.
Skeates said in-house lawyers should be careful to closely follow proposed regulatory reform in this area, adding the Privacy Commissioner of Canada has been very public in wanting order-making powers, penalties for non-compliance, and the ability to publish the names of the organizations under investigation.
‘Commencing a legal action implies consent under PIPEDA,’ says David Cherepacha. Photo: Andi Balla
‘Commencing a legal action implies consent under PIPEDA,’ says David Cherepacha. Photo: Andi Balla
Technology has opened up a wealth of information for lawyers conducting investigations through surveillance for use in court cases, but they need to make sure the collecting of such information is within the bounds of Canada’s privacy rules, experts at a Toronto seminar said last week.
Monday, 23 May 2011 13:48

InHouse holds annual GC roundtable

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Photographer Sandra Strangemore sets up the photo of participants at this year’s InHouse/ACC roundtable. Photo: Andi Balla
Photographer Sandra Strangemore sets up the photo of participants at this year’s InHouse/ACC roundtable. Photo: Andi Balla
Properly managing legal spending remains the top concern for leaders of Canadian legal departments, said panellists at a roundtable last week organized by Canadian Lawyer InHouse in co-operation with the Association of Corporate Counsel.
In the past five years, how has the perceived standing of Canadian corporate counsel changed? Source: Deloitte & Touche LLP
In the past five years, how has the perceived standing of Canadian corporate counsel changed? Source: Deloitte & Touche LLP
Facing a bad economy, more complex regulations, and higher risk, Canadian companies have been relying much more on their corporate counsel over the past five years, according to a recent survey.
Chief Justice Warren Winkler says the grievance arbitration system is close to dysfunctional.
Chief Justice Warren Winkler says the grievance arbitration system is close to dysfunctional.
The current system of labour arbitration takes too much time, is too costly, and involves too much litigation, says Ontario’s Chief Justice Warren K. Winkler.
Monday, 25 April 2011 09:05

Franchise class actions here to stay

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When the Ontario Superior Court last month certified a $750-million class action involving former auto dealers suing General Motors of Canada Ltd., it marked the latest in a series of class actions related to the franchisor-franchisee relationship.
Jane Dietrich says from an insolvency lawyer’s perspective, this decision is problematic.
Jane Dietrich says from an insolvency lawyer’s perspective, this decision is problematic.
The rights of pensioners have priority over those of secured creditors in an insolvent company, the Ontario Court of Appeal has ruled in a case that could radically shift how companies and their lawyers deal with credit agreements and registered pension funds.
Monday, 11 April 2011 12:55

Happy and in-house

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Fred Headon says his election reflects in-house counsel’s strategic role in working with the private bar.
Fred Headon says his election reflects in-house counsel’s strategic role in working with the private bar.
Do you want to be happy? Then go in-house. That’s what the findings of the latest CCCA In-House Counsel Barometer survey suggest.
Former minister James Peterson discusses enforcement of Canadian legislation against bribing foreign officials at the University of Toronto.
Former minister James Peterson discusses enforcement of Canadian legislation against bribing foreign officials at the University of Toronto.
An international report highly critical of Canada’s enforcement of its foreign official anti-bribery laws will likely increase pressure on Canadian authorities and companies to improve compliance in this area, a panel of experts told a Toronto audience last week.
Benjamin Zarnett wonders whether the court played a meaningful role in simply scrutinizing the Magna vote.
Benjamin Zarnett wonders whether the court played a meaningful role in simply scrutinizing the Magna vote.
The Ontario Securities Commission encouraged “despotic behaviour” in the markets by allowing the $1-billion deal that saw Frank Stronach cede his tight grip on Magna International Inc., a University of Toronto law professor and securities expert told a recent roundtable exploring the fairness of the deal.
Illustration: iStock
Illustration: iStock
Ottawa’s efforts to establish a national securities regulator have been dealt a blow in the Alberta Court of Appeal, which has ruled the central entity would be unconstitutional if established.
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