Legal Feeds Blog
Ann Cavoukian has long touted the benefits of “data privacy by design” and now the European Union has passed an overarching privacy law called the General Data Protection Regulation, which embeds that requirement.
|Ann Cavoukian says people often see privacy as an impediment but in fact she says ‘privacy breeds innovation.’ (Photo: Jennifer Brown)|
Privacy by design was first developed by Cavoukian in the 1990s when she was privacy commissioner of Ontario. It is an approach to protecting privacy by embedding it into the design specifications of technologies, business practices, and physical infrastructures.
“That in itself is huge,” said Cavoukian, now the executive director of the Privacy and Big Data Institute at Ryerson University.
She was speaking on an International Association of Privacy Professionals panel last week in Toronto called “Privacy by design: How I learned to stop worrying and love disruptive technology.”
Even though privacy by design has been embraced globally for many years, the EU law is the first time it’s appearing in a statute.
Cavoukian noted that Canada’s privacy commissioner, Daniel Therrien, is also now asking if privacy by design should be embedded into Canadian law.
“Keep your eyes open for this, and if you lead by privacy by design it will be more likely you will be compliant with the GDPR and you will be more likely to be meeting the requirements of many jurisdictions because privacy by design raises the bar considerably,” she said.
Abigail Dubiniecki, legal counsel for the Canadian Air Transport Security Authority, noted that even if an organization doesn’t have operations in the EU, if it is directing services to EU residents, it can still be captured by the requirements.
With distrust of how organizations are handling personal data at an all time high, how can organizations foster trust with customers in the private and public sector?
“You have to find ways to grow trust,” said Cavoukian. “When I was privacy commissioner I told businesses to treat privacy as a business issue — focus on the tech and how you can increase privacy thereby increasing trust and be compliant with the legislation.”
Cavoukian said with the Internet of Things exploding at such a rapid pace, if companies took time to reflect on the protections that could be embedded from the outset, they would be much further ahead. Companies are still too siloed though to make sure it happens at the design stage
“When I talk to software designers and ask why they aren’t embedding privacy into the design of their technology they say, ‘We’d love to do that but the instructions we receive don’t reflect the need to do that.’ They say if we had the instructions at the front end, it’s easy to do,” she said.
She referred to the “risk intelligence approach” which anticipates risk and identifying them upfront in an effort to mitigate risk by incorporating privacy into design.
Dubiniecki said some view the problem as a generational gap — that some older age groups are more concerned about privacy than others that have “softer” security concerns.
“There is the idea that some will sacrifice privacy for personalization,” she said. “They want something customized to their needs so some innovators see privacy as a barrier to innovation but others see it as an opportunity.”
Cavoukian agreed it is an opportunity. She says people often see privacy as an impediment but in fact she says “privacy breeds innovation.”
“If you can embed privacy from the get go it will assure customers and keep regulators out of your door because you will be building it in in the strongest way possible.”
Protection of data should also be the top concern of any organization, she said.
“In this day and age of cyber attacks, if you don’t have data protection end to end you won’t have privacy. You have to have secure data collection and through the secure destruction of the data,” she said.
“Remember, it’s not your data — just because you have custody and control of it because you collected it doesn’t mean it belongs to you — it belongs to the data subject.”
Mandatory evacuation order issued for Alberta oil sands facilities as fire rages, The Globe and Mail
Toronto man faces 88 fraud charges in credit-card scam, Canadian Press
Smugglers made $5-billion moving migrants to Europe last year, The Globe and Mail
A new firm helmed by a well-known governance and business lawyer and three communications veterans is billing itself as first-of-its-kind in Canada.
|The founding partners of Hansell McLaughlin Advisory are (l to r): David Scott, Ron McLaughlin, Carol Hansell, and Peter Block.|
It aims to work with clients as they hit roadblocks in terms of their reputations, or with assessing risk and maneuvering through the regulatory environment.
“Businesses sometimes focus on the issue at hand, without taking into account the wider scope of what might impact them or what might affect them,” says Block, one of the founding principals. “We’re that wider scope.”
Block, a former vice president of communications at Maple Leaf Foods, says if an organization is facing a significant issue — whether positive or negative — “by putting all the related services under one roof, it makes it a lot easier.
“If a company is facing a particular legal issue and they can resolve that legal issue, that’s obviously important, but if that triggers a reputational challenge, or if that triggers the government looking and saying, ‘Wait a minute, we don’t like what you’re doing, we’re going to change regulations,’ those are the wider implications of the broader issues that could affect a client,” he says.
The other principals Hansell, whose experience includes being former chairwoman of the corporate governance committee of the American Bar Association. She’s also current chair of the Business Law Advisory Council, struck earlier this year to guide the Ontario government.
Hansell and Block are joined by McLaughlin, a former chief of staff to Ontario premier Mike Harris, with long-time experience consulting in the private and public sectors, and Scott, a former vice president and practice lead for National Public Relations. The new firm is affiliated with the law firm Hansell LLP.
“[I] think it’s a different concept than exists in other firms,” Hansell tells Legal Feeds.
“Typically, when somebody needs communications advice, you hire somebody on the communications side, you need [government relations], you hire somebody on the GR side, but what that doesn’t let you do is to stop the issues right at the beginning and provide guidance to the clients at the critical time, as opposed to further down the path. The plan here is to provide a more integrated kind of advice to the client, so we’re able to cover them from all sides from the beginning of the matter.”
Block says clients will benefit from having legal insight and communications insight combined on one team.
“You do lose things in translation when you start having different people working with different firms . . . so having it all together, and having the ability to bring it altogether, will be enormously helpful,” says Block.
Not every client may be seeking legal advice, notes Block.
“If somebody comes to us and says, ‘Look, we just need communications advice, we don’t need any legal advice or government relations advice,’ that’s fine. There are times along the way though in communications work that all of the sudden, you get tripped up on something on a legal matter and even if we’re not formally working with the law firm side on a particular [mandate], the fact that I can walk five feet down the hall and speak to a lawyer . . . is also a real plus,” says Block.
For example, Block says he expects in terms of risk planning and management, issues around environmental sustainability will be “huge.”
Ontario's $7-billion climate change plan to impact auto, energy sectors, The Globe and Mail
Doctors save baby of pregnant woman killed in Toronto shooting, Canadian Press
Man brandishing samurai-style sword arrested in Hamilton, Canadian Press
It is now more difficult for prosecutors in police disciplinary hearings to prove police officers have engaged in professional misconduct, thanks to a recent decision from the Ontario Court of Appeal.
|An Ontario appeal ruling confirms it’s more difficult for prosecutors in to prove police officers have engaged in professional misconduct. (Photo: Shutterstock)|
In a decision some lawyers are calling “troubling,” the court said the issue has already been decided by the Supreme Court of Canada, and overturned a Divisional Court ruling that declined to give police a special standard of proof in hearings at the Ontario Civilian Police Commission.
“The decision only serves to further inoculate police from appropriate scrutiny,” says Ottawa criminal lawyer Michael Spratt.
While the standard of proof in criminal law is to establish facts beyond reasonable doubt, civil courts, including administrative tribunals, rely on proving claims on balance of probabilities. But Jacobs confirms there is a third, higher standard of proof for police that requires prosecutors to prove their case on “clear and convincing evidence.”
The appeal court said it is relying on a Supreme Court of Canada decision that already acknowledged this third standard of proof for police disciplinary hearings. The Divisional Court erred in not following the SCC’s precedent in Penner v. Niagara (Regional Police Services Board), says the appeal ruling.
The respondents took the position that “clear and convincing evidence” only refers to the quality of evidence generally required to meet the balance of probabilities standard in professional discipline matters. They also argued the top court’s statements in Penner were obiter dicta, or incidental expression of opinion. The appeal court rejected those arguments.
“In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities,” wrote Justice C. William Hourigan for the panel.
“I would grant the appeal and set aside the order of the Divisional Court dismissing the appellant’s application for judicial review to quash the decision of the Commission. The matter is remitted to the Commission for further consideration in accordance with these reasons,” he added.
According to Spratt, one of the arguments for creating this special standard of proof for police officers is they are hugely affected by negative disciplinary findings against them, and police officers have important work to do.
But “that seems to me to be a reason to more carefully examine police officers’ conduct and not a reason to insulate police from the normal standards that would apply for normal individuals,” Spratt says.
Man shot and killed near police headquarters in Hamilton, Ont., Canadian Press
Police find body in creek near Highway 401 in Whitby, Ont., Canadian Press
Sale of Conrad Black's mansion delayed after CRA places liens over unpaid taxes, The Globe and Mail
As wildfires in and around Fort McMurray begin to subside and residents are faced with the terrible aftermath, Legal Feeds asked major law firms in Alberta what they’re doing to help — which is a lot, it turns out.
|Flames rise in over Fort McMurray on May 3. (Photo: Terry Reith/CBC News/Handout via Reuters)|
“Our thoughts are with all those affected by this terrible disaster. Through our Calgary office, we have close ties to many people in these communities, and we want them to know we stand with them during this difficult time.”
Field Law managing partner James Casey says: “We all appreciate the monumental task facing families and the city of Fort McMurray to rebuild. During times of great need and challenge Albertans rally to help our neighbours and Field Law is jumping right in to do our part.”
"We are humbled and proud to join together, both as a national firm and with the Calgary legal community, to support those affected by the ravaging fires in Fort McMurray," says Osler Hoskin & Harcourt LLP Calgary managing partner Maureen Killoran. "We know there will be much more work to be done in the weeks and months ahead and our friends, colleagues and clients can count on Osler to lend a hand."
Norton Rose Fulbright Canada LLP (140 lawyers in Calgary)
• co-ordinating with other firms in the province to raise funds for Red Cross Alberta Fires Appeal
• employees selling Defeat the Heat T-shirts to raise money and visibly show solidarity
• Calgary managing partner Brad Hayden: “These people are our friends and neighbours and when a neighbour needs help, it’s the right thing to do. It’s who we are as Canadians. In the legal industry, we like the facts, and the facts are Fort McMurray and its citizens need help.”
Burnett Duckworth & Palmer LLP (140 lawyers in Calgary):
• joined forces with other major firms in Calgary, including Norton Rose, Bennett Jones, Blakes, DLA Piper, Field Law, McCarthys, Osler, Stikeman Elliott and Torys
• donated $30,000 to Red Cross Alberta Fires Appeal
• launched matching program, up to $10,000, for staff and lawyers
Blake Cassels & Graydon LLP (110 lawyers in Calgary):
• donated $50,000 to the Red Cross Alberta Fires Appeal
• staff and lawyers have donated $6,750
• employee fundraising activities planned across Canada (online auction, 50/50 raffle, pizza lunch and T-shirt sales)
Borden Ladner Gervais LLP (120 lawyers in Calgary):
The smoke plume (bottom) from wildfires near Fort McMurray in a picture taken by NASA astronaut Jeff Williams from the International Space Station May 11. (Photo: NASA via Reuters)
• launched matching program for donations to Red Cross Alberta Fires Appeal
Field Law (120 lawyers in Calgary and Edmonton):
• collected donations from staff and lawyers
• organized fundraising events (bake sales, silent auction) with more planned
• launched matching program, up to $5,000, for donations to the Red Cross Alberta Fires Appeal
• established dedicated Red Cross online portal for lawyers, staff, and vendors to donate
• raised $22,000, with minimum goal of $30,000
• participating in Defeat the Heat T-shirt fundraiser
Miller Thomson LLP (90 lawyers in Calgary and Edmonton):
• lawyers reached out to victims within 24 hours, offered homes in Edmonton as refuge
• established dedicated Red Cross online portal for staff and lawyers to donate
• launched matching program for donations
• staff and lawyers donated household supplies for displaced families
Bennett Jones LLP (200 lawyers in Calgary and Edmonton):
• donated to Red Cross Alberta Fires Appeal
• providing office space in Edmonton for one Fort McMurray law firm that was displaced (with support staff set up in boardrooms)
• providing computers, phones, and office supplies for this law firm
• one partner has provided the use of a home to a displaced family
Osler Hoskin & Harcourt LLP (70 lawyers in Calgary):
• in less than three days, donated $200,000 to the Fort McMurray Fund
McCarthy Tétrault LLP (70 lawyers in Calgary):
• McCarthy Tétrault Foundation has donated $75,000 to the Red Cross Alberta Fires Appeal
Dentons Canada LLP (190 lawyers in Calgary and Edmonton):
• launched matching program for donations to the Red Cross Fires Appeal
• matching program has collected $125,000
• reaching out through the law society, social media and networks to offer office space to displaced lawyers
• some lawyers in Edmonton have opened their homes to displaced clients and lawyers
MacPherson Leslie & Tyerman LLP (40 lawyers in Calgary and Edmonton):
• launched matching program for donations to Red Cross Alberta Fires Appeal
• raised $16,500 in donations from lawyers and staff
• donated $1,500 to process several tonnes of laundry for evacuees
• donated $5,000 to Fort McKay, north of Fort McMurray, which opened its doors to evacuees and air-dropped supplies to nearby oil sands mine
• donated $1,500 to aboriginal community to assist in providing aid to evacuees
• Calgary lawyer Dean Hutchison, born and raised in Fort Mac, organized a donation drive with his children for clothing and other items
Gowling WLG (Canada) LLP (90 lawyers in Calgary):
• launched matching program for donations, up to $50,000, to Red Cross Alberta Fires Appeal (with $100,000 target)
• offered office space for displaced clients
DLA Piper (Canada) LLP (50 lawyers in Calgary):
• donated to Red Cross Alberta Fires Appeal
• launched matching program for donations from staff and lawyers
• offering emergency office and meeting spaces in Edmonton and Calgary for displaced lawyers
• allowed staff to volunteer for relief efforts during work hours
• Alberta lawyers and staff have contributed much-needed supplies like toiletries and bedding
• Toronto office has raised a significant amount of money through a matching program
• individual lawyers have offered to help evacuees with claim process and paperwork
• many individuals are hosting evacuees and their pets
Update May 15: Quote from Maureen Killoran revised. Spelling of Dean Hutchison's name corrected.
Federal parole board considers two-tier pardon fees, Canadian Press
Trucking company and driver charged in fatal Ontario crash, Canadian Press
'I didn't kill Mr. Bosma,' Mark Smich testifies in murder trial, Canadian Press
A number of Canadian law firms are mentioned in the Panama Papers, the massive leak from a Panamanian law firm showing the offshore financial dealings of prominent figures worldwide.
The documents, which became available for wider public scrutiny this week, list Bennett Jones LLP, Aird & Berlis LLP,, and Macleod Dixon LLP as intermediaries for various offshore companies and trusts.
The law firms are listed as intermediaries for trust accounts incorporated as far back as the 1980s. Aird & Berlis is listed as an intermediary for Blue Trust, The Merril International Trust, Harrison Trust, Chavid Trust, Coppi Trust, and two other accounts with details that have been temporarily withheld.
Bennett Jones is listed as an intermediary for FROBISHER S.A., which was incorporated in 1982 and struck off in 2013, according to the documents.
Meanwhile, Macleod Dixon, which merged with the Norton Rose Group to open its first Latin America offices in 2012, is listed as an intermediary for Continental-GeoPetro (Yapen) Ltd., a company engaged in oil and gas exploration in Indonesia.
Vitaly Timokhov, a tax lawyer at Tax Chambers LLP, says the law firms could have been involved to incorporate the Canadian side of these companies, act as advisers for beneficiaries, or settlors of trusts, or help set up an offshore financial structure for companies to create “tax efficiencies.”
When law firms create foreign financial structures, it’s usually after the structures have been approved by Canada Revenue Agency, says Timokhov.
“Usually, these kind of structures, they’re all vetted by Canada Revenue Agency as part of the setup,” he says.
Asked about the impact of the revelations, Aird & Berlis’ managing partner Steven Zakem said, as acknowledged by the International Consortium of Investigative Journalists, which made the documents available on its web site, there are legitimate uses of for offshore companies and trusts.
“. . . Off shore companies and trusts are legitimate tax planning vehicles which are recognized by Canada and many other jurisdictions,” Zakem said in an e-mail to Legal Feeds.
“Aird & Berlis LLP does not respond to outside enquiries concerning the identity of its clients or legal advice it may or may not have provided to its clients. As such, we must decline to answer the questions posed,” Zakem also said.
Recently, RBC was forced to hand over its clients’ records to the CRA after names of the bank’s clients turned up in the Panama Papers. If tax auditors similarly ask Canadian law firms to surrender their records, Timokhov says it’s debatable whether the law firms can argue the information is protected by solicitor-client privilege.
The extent to which tax advice is privileged is “an extremely complex” question, he says.
“The CRA position is . . . that all information which is relevant in the computation of income tax liability is not privileged. It’s confidential, but not privileged,” he says. “Canada Revenue Agency can, under the Income Tax Act, request information from all third parties including lawyers in respect of all information relevant to income tax computation.”
Surrey, B.C. fire that left one man dead under investigation, Canadian Press
Controversial French comic Dieudonne arrives in Montreal, Canadian Press
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