Syrian refugee claimants who apply for refugee protection division coverage will be issued a 10-hour expedite legal aid certificate under a new pilot project from Legal Aid Ontario.
The expedite certificate covers the preparation and filing of the basis of claim and other documents such as submissions under the Immigration and Refugee Board of Canada’s expedited process established for Syrian refugee claimants. Last month, the board announced it would begin to expedite Syrian refugee claims. The process applies to Syrians who are in Canada and making a claim on Canadian soil.
A regular refugee claim would receive seven hours of coverage from legal aid to do the initial basis of claim form and then another nine hours for the hearing stage. While immigration lawyers say that’s never enough time to handle a claim, the provision for Syrian refugees under the expedited process is welcome.
“Generally, I think 16 hours for a refugee claim is very low. I’ve never been able to do a claim in 16 hours,” says Jacqueline Bonisteel, an immigration lawyer with Perley-Robertson Hill & McDougall LLP.
“That said, the hours make sense because you’re still doing the basis of claim plus an additional three hours to put the documentation together and there is no hearing preparation required. In general, it would be great to have more hours from legal aid for refugee claims, but this standard makes sense.”
However, Bonisteel says the LAO web site indicates claimants may not find out whether they’re approved for the expedited process until very close to the hearing date.
“When you submit your paperwork, you will be asking for the expedited process, but by the time you get an answer from the Immigration and Refugee Board, your hearing could be getting close and if you don’t have the assurance, you will want to be preparing your client for a hearing just in case,” she says.
If a client does require a hearing, Bonisteel says LAO has said it will grant an additional six hours to prepare.
“This all happens so fast that in general, it can be very difficult to get the answers you need from legal aid in time and you end up doing work without the assurance of having the hours,” she says. “I do see that there may be an issue there.”
Bonisteel applauds the board for bringing in the expedited process for Syrian refugees and suggests it should be extended to claimants from other countries.
“It’s hard to argue it’s not a good thing. I think there are other countries where it should be introduced — for Iraq and Afghanistan, perhaps,” she says. “I’ve often had to go from Ottawa to Montreal for a hearing, and the whole thing is over in half an hour because the case was so clear. I think it makes a lot of administrative sense to not have the claimant have to go through [the hearing] process. If this works well, it would be great if the IRB would consider other countries where it is quite clear a claim is genuine.”
With hundreds of poor or unwell people already being turned away for Legal Aid funding in Alberta, the problem is about to get more dire as the stop-gap Missing Advocate Project will be terminated on Nov. 1.
|'The problem is that access to justice has to be seen as a human right like health care or water,' says Anthony Moustacalis.|
They are calling on the ministries of Justice and the Attorney General and the province’s recently elected NDP government for better funding.
“Unfortunately, the effect on access to justice and the efficient administration of our court system will be obvious and immediate,” the Oct. 1 release states. “The demand for legal services for poor and handicapped people in Alberta has increased dramatically over the past decade. Legal Aid Alberta has now been starved to the point where the working poor are routinely turned away as ineligible.”
“The Province of Ontario has at least recognized the historical underfunding [of legal aid] so we’re faring better here; it’s commendable, but long overdue and unfortunately it’s trying to remedy a situation that’s 25 years old,” says CLA president and Toronto-based defence lawyer Anthony Moustacalis. “It’s a country-wide problem and it’s acute.”
Because of the economic downturn and funding struggles for legal aid in Alberta, the Missing Advocate Project was created a little more than a year ago by the legal associations to ensure people had proper representation and advice within reasonable time. In that time, the project has served about 900 clients.
“The many lawyers involved in providing this service to the public have done so without remuneration and often at considerable expense to themselves and, at times, their families,” the release states. “Having provided this service to prop up an unsupported legal aid system for the past 12 months, our membership has determined that it is no longer able, or willing, to continue doing so.”
In a 2014 interview with the Calgary Herald about the province’s legal aid funding crisis, CDLA president Ian Savage explained provincial funding has not changed since 2011 at approximately $58.8 million annually. The Alberta Law Foundation also provides some annual funding, but that dropped from $14.9 million in 2009 to just a little more than $1 million in 2011.
The foundation signed an agreement to provide a minimum of $5.5 million in 2012, but that agreement comes to a close in 2016, leaving some uncertainty, said Savage.
“The problem is that access to justice has to be seen as a human right like health care or water,” Moustacalis says. “This is a pressing human rights issue.”
Every student legal aid clinic in Ontario is about to get a $100,000 annual funding boost.
|Windsor's Marion Overholt says her clinic will use the funds to expand coverage in the areas of small claims, consumer issues, and wrongful dismissal claims.|
One of them is the Queen’s Legal Aid Clinic in Kingston, Ont. It facilitates learning for 90 law students with 50 more working for the specialized clinics under its umbrella.
“We are very pleased for Queen’s Legal Aid to have these funds. Law students take pride in providing high-quality legal services and it’s going to our community, which could not otherwise access the rates,” says Jana Mills, acting senior review counsel at Queen’s Legal Aid.
“We are going to expand our current areas of service to include applications to the Human Rights Tribunal of Ontario and expand representation in employment law cases.”
They also expect to expand all services. Public legal education outreach and initiative will help residents of Kingston “avoid unnecessary and expensive legal interventions,” says Mills. Additionally, new case workers will also be trained and a third review counsel will be hired.
The money will help provide technology and enhance the legal learning process for law students and clients, says Mills. Interviewing via Skype and a new database should streamline legal work she explains.
“It gives the students an opportunity to help... a vulnerable population [while] at the same time receiving hands-on experience,” she says.
Community legal services at the University of Windsor plans to expand the number of review counsel “who will be able to work exclusively in the area of small claims, looking at consumer data issues and wrongful dismissal claims,” says Marion Overholt, executive director of Legal Assistance of Windsor, Community Legal Aid.
Windsor and Essex County have one of the highest unemployment rates, she explains.
“As a result we have seen a rise in situations of precarious employment, so being able to offer workers who lose their job an opportunity to consult with us and determine if they have a claim in terms of wrongful dismissal, that will be beneficial to the community,” says Overholt.
Furthermore, the money will benefit the more vulnerable population, which often becomes tied in contracts detrimental to their interest. Due to the area’s high unemployment rates, pay-day loans and similar schemes are especially rampant in the community, explains Overholt
“This additional money is allowing the review counsel to look at consumer debt situations. [We] will be doing a number of public education workshops advising consumers, particularly seniors [and] newcomers, what their rights are under consumer-protection legislation,” she says “We are really excited that we will be able to broaden our services to the low income community.”
About 90 volunteer law students stand to reap the benefits of working on the extra caseload.
Margaret Capes, counsel at Community Legal Services with Western University in London, Ont., says legal aid revolves around three core areas of law at her clinic, including civil, housing, and criminal.
“We are using this money to increase our overall number of clients we can take in all of those areas, in particular criminal law,” says Capes.
Additionally the clinic is able to hire an articling student this year to help with the additional workload in the criminal law area, as well as a part-time lawyer to assist the full-time criminal lawyer she notes.
“The law students will be able to have a variety of different files to work on while they are with us,” says Capes “the more files we are able to open, the more broad range of types of cases that they can be potentially exposed to.”
The funds may also be used to provide additional administrative assistance to the family law lawyer she adds.
The Community Legal Clinic at the University of Ottawa plans to enhance services in the landlord and tenants agreements.
“It’s the area of law where we have the most demand for services, so often we were not able to provide full representation, we were only in a position to offer summary advice,” says Louise Toone, executive director of the clinic.
While the self-help type of service was useful to some, full representation is certainly an improvement.
“A lot of our clients are either recent immigrants, they don’t speak French or English very well or they have mental health problems, so the kinds of clients who really need representation,” Toone.
Besides legal advice and potential for legal representations the clinic also focuses on educating the vulnerable community members.
“We do a lot of community education,” says Toone. Approximately 100 presentations per year are hosted by the clinic in collaboration with various partners. “We do sessions on legal rights on different topics like discrimination at work or housing.”
Approximately 60 law students enrolled at Ottawa’s Faculty of Law will have a chance to help with the cases during the school year.
|Virtually all the changes come into effect today and those that don't will be retroactive, says LAO's Thomas Nye.|
“Virtually all of them come into effect immediately,” he says of the changes, noting the only exception involves the changes with respect to bail matters.
“However, they will be retroactive to June 8,” he adds.
With the Ontario government pumping more than $96 million into LAO over three years, the agency is moving ahead with an expansion of certificate coverage to provide assistance in a greater range of areas. This is in addition to the series of increases to the income eligibility threshold that started taking effect last year.
In criminal law, for example, LAO will now issue certificates based on criteria besides the loss-of-liberty test that considers an applicant’s likelihood of going to jail. Under the changes, certificates will be available to those meeting the income eligibility criteria who are facing secondary consequences of a criminal conviction such as a risk of deportation; immediate loss of public housing; or a significant impact on access to family and child custody.
In addition, LAO will expand coverage for those meeting the income criteria with no prior criminal record in situations where the Crown is seeking a conviction or discharge and the defendant is First Nation, Métis, or Inuit; has a mental illness; or is a victim of domestic violence charged with an offence related to a partner.
When it comes to bail, the changes include providing for enhanced certificates for reviews that will expand the number of hours lawyers have to challenge bail orders and improper conditions imposed on those released.
In the area of family law, the changes will expand coverage for complex cases. According to Thomas, they refine the definition of complexity to deem certain matters, such as those dealing with applications under the Hague Convention on the Civil Aspects of International Child Abduction, to be “presumptively complex.”
As well, they’ll include provisions for what Thomas calls “client complexity criteria” to define complexity on the basis of client characteristics such as literacy issues or language barriers.
Additional changes will provide for certificates in mental-health proceedings to assist those meeting the income eligibility criteria who wish to bring guardianship applications before the Consent and Capacity Board or the Superior Court.
In addition, the changes provide for expanded coverage in refugee matters and domestic violence cases. They’ll also provide for targeted services for aboriginal clients and expand LAO’s public-interest criteria for test cases that address systemic issues affecting the poor.
“The old test-case criteria were pretty narrow,” says Thomas, noting it will now be possible to provide a certificate in a test case with significant implications for the poor even if the representative client doesn’t meet the financial eligibility criteria.
“We are growing the program to match the funding,” says Thomas, adding there may be further changes as the funding continues to grow — including another $67 million announced by the province in its spring budget for 2017-18 — and LAO assesses the impact of the expanded services so far.
|Source: Legal Aid Ontario|
The lawyer in question was providing duty counsel services through the Sykes Corp., which has a contract with legal aid to assist clients via the Brydges hotline, according to LAO.
“Legal aid is going to investigate because we do have a contract with them and we want to make sure that there’s consistent and high-quality legal services available across the different platforms, whether it’s duty counsel, staff lawyers paid by legal aid, or whoever we contract to do the work,” Oger says.
Duty counsel Artis Tiltins was the only duty counsel available in Ontario on the night Edita Hajovska was arrested for impaired driving. Hajovska, who spoke with Tiltins on the phone from a hospital, testified the lawyer didn’t let her ask questions and told her to “shut up.”
Police also testified the lawyer was rude and impatient when told to stay on the phone for a few minutes while Hajovska was seeing a doctor before speaking to her the second time. An officer told the court he had dealt with Tiltins before and found him to be rude. On the night in question, the officer said he threatened the lawyer with a complaint to the Law Society of Upper Canada when he insisted he couldn’t stay on the phone.
“I appreciate that it was busy that night, and that Mr. Tiltins was the only duty counsel on duty for the entire province. However, this was not some drive-through business, and Mr. Tiltins was not a minimum wage employee who had little ability to use his discretion or exercise his own judgment about the service he was providing,” wrote Provincial Court Justice Leslie Pringle in R. v. Hajovska.
“In fact, Mr. Tiltins was providing an important legal service to a person whose liberty and security of the person were in jeopardy; he was a fully qualified lawyer and a professional providing legal advice to a person arrested for a criminal offence.
“As such, he could easily have exercised his discretion to wait an additional few minutes for Ms. Hajovska to receive medical treatment, and he could certainly have used better judgment than to raise his voice to the police officer and his client over the telephone.”
Tiltins did not respond to a voicemail request for comment. But according to the ruling, he denied he was rude to Hajovska. He said his vocal demeanour was “very fine,” and that it was in fact Hajovska who was being difficult with him.
After Hajovska’s frustrated call with Tiltins, the police carried on with breath tests. The judge found that was a violation of her right under s. 10(b) of the Charter, as she had not had a reasonable opportunity to speak to counsel.
“Looking at the situation in this case from a broad perspective, I find it is significant that even the police were shocked by the disregard with which Ms. Hajovska was treated by duty counsel,” Pringle said.
“Considering that the end result was that her right to counsel was entirely thwarted, I am satisfied that the administration of justice would be brought into disrepute by admitting the breath samples. In other words, I find the repute of the system as a whole would suffer by admitting the evidence.”
With the breath test results excluded, the judge found there was no proof Hajovska was driving while intoxicated.
|Bill Sullivan commends the provincial Liberals for moving fast on increasing legal aid funding.|
The increase — which represents a $32-million commitment by the province — is the second in just five months under Premier Kathleen Wynne, whose 2014 budget committed to boosting eligibility thresholds for legal aid by nearly 20 per cent.
The first increase took effect on Nov. 1, 2014; the second yesterday; and a third increase is slated for April 1, 2016, at which point income thresholds for families of three will rise to over $25,300.
“As a result of these two threshold increases, an addition 250,000 low-income Ontarians are now eligible to receive legal aid,” said Attorney General Madeleine Meilleur.
LAO chairman John McCamus added: “This will allow more low-income Ontarians to obtain legal help and will improve access to justice in our province. I commend the provincial government for improving services available to people living in poverty and marginalized communities.”
It’s a sentiment shared by front-line legal aid workers, who point out that a threshold increase is long overdue — with the last one coming in the 1990s.
“They hadn’t raised the levels of eligibility or looked at those numbers for 20 years,” says Bill Sullivan, a Toronto lawyer who in December won the LAO’s Sidney B. Linden award for decades of dedication to legal aid work.
“The numbers were absurd. You could barely be making welfare. So the working poor were being excluded.”
Sullivan commends Wynne and Meilleur for the commitment they’ve shown to improving legal aid in the province.
“I think that the current attorney general and the government have done a great thing here, because it’s long overdue. And I think they were quite courageous in getting it done so quickly in the early part of the term.”
For low-income families involved in spousal disputes and child-custody battles, the importance of legal aid cannot be overstated, says Sullivan. For many clients, legal aid offers not only the means to afford a lawyer, but also the means to escape a life-threatening situation.
Sullivan, for instance, is reminded of the case of a mother and two teenage daughters who were killed, allegedly by the girls’ father.
“She was a student doing some nursing work and was trying to get legal aid, so she could get out of this relationship — and she couldn’t get it,” he says. “Many of the clients I still see, sadly, are trying to get out of very difficult situations.”
An investment in legal aid, says Sullivan, also makes good financial sense, given the cost savings that come with avoiding family disputes — fewer calls to the police, fewer trips to the hospital.
“The guy’s not there banging on the door about wanting to see his kids,” he says. “You’ve got a schedule of access, you’ve got a clear delineation of when he comes and how he picks up the children, with safety provisions you can put in place.”
Despite the province’s initiatives to support legal aid, Sullivan says more can be done. For a family of three, thresholds of $25,000 are still too low; Sullivan would like to see them at around $30,000.
He’d also like to see more attention paid to policies around how legal aid is granted. A simpler process for discretionary requests for additional funding — when a file suddenly grows in complexity, for instance — would be helpful.
Sullivan also notes the difficulty clients face in switching lawyers, since no legal aid funding is granted for legal opinions.
“I tell the client, ‘I can’t just sit down and talk to you out of the blue. I need to read what’s in your file. I need to talk to a couple of people, and then maybe I’ll be in a better position to give you an opinion,’” he says. “The trouble is, if I accept your certificate, you’re stuck with me.”
All that being said, Sullivan says the province’s announcement is great news for legal aid lawyers.
“I think the government is committed. I know that the attorney general and the premier are committed to improving the quality of this program.”
|Mike Taylor says N.S.’s legal aid system is already so stretched it may need more resources just to produce the reports being suggested.|
The recommendations broadly demand accountability reports from all government agencies, going as far as to suggest if agencies won’t comply voluntarily, an expansion of the Finance Act to mandate such reports may be warranted.
With respect to the Nova Scotia Legal Aid Commission, the auditor general is recommending the creation of annual business plans, with quantified goals and deadlines. Outcomes from the plan would then be measured against a separate accountability report.
“The Department of Justice should require that the Nova Scotia Legal Aid Commission prepare an annual business plan,” the auditor general’s report states. “The business plan should include goals for the upcoming year and targets to achieve these goals. The Department should require the Commission’s annual report reflect progress toward achieving these goals.”
While legal aid is not statutorily required to provide an official business plan, it has in the past issued what it calls a “strategic business plan” that provides a general outlook without hard targets or deadlines. The auditor general says that’s not adequate:
“There are statements [in the strategic business plan] associated with each area of focus, but only one statement has a stated target. . . . The report also includes testimonials regarding the high quality of services delivered during the year. . . . If such methods are used in the future to gather this information, the full statistics of number of respondents and range of satisfied to dissatisfied clients should be noted.”
Mike Taylor, a litigator at Pressé Masson in Bedford, N.S., and past president of the Nova Scotia Criminal Lawyers Association (and a former legal aid lawyer himself), says it’s a shame that legal aid was one of the agencies targeted in the auditor general’s reports. The recommendations, he says, may strike some legal aid workers as “insulting.”
“I would expect that, once all of the answers are provided, they’re going to see that there is no fat to trim,” says Taylor. “Legal Aid has done amazing work with the money that’s been provided over the years, and they’ve cut wherever they could.”
Indeed, Taylor says the province’s legal aid system is stretched so thin already, it may need additional resources just to produce the accountability reports being suggested.
“I know that when we’re talking about cutting expenses and trying to save money, it may be counterintuitive to say that we need more money to produce reports so we can save money,” he says. “But I expect that the burden of creating a business plan will be something that requires a significant amount of work. So hopefully additional resources will be provided to allow them to do that.”
As for the subtle reference to an expansion of the Finance Act to mandate business plans and accountability reports, Taylor calls it “a nice little threat. . . . It tells me that it’s probably going to come, one way or another. Either do it, or we’ll legislate.”
|B.C. is still No. 10 in terms of per-capita spend on legal aid, says Alex Shorten.|
“This is 25 years with no new funding,” says Birgit Eder, a defence lawyer and co-chairperson of the Trial Lawyers Association of B.C.’s legal aid action committee.
The Canadian Bar Association-British Columbia chapter also expressed its concerns about the budget.
“This is a big part of the access-to-justice problem,” says Alex Shorten, a Vancouver lawyer and president of the CBA-BC. “There needs to be more money for legal services for the most vulnerable in the province.”
Even with a large surplus and an annual provincial budget of $46 billion, the CBA has been told by the government there is no new money for legal aid, because each department must balance its own budget, says Shorten.
The CBA has asked the province to inject another $10 million, over the next three years.
“This province is still No. 10, in terms of per-capita legal aid,” says Shorten.
The overall annual budget for the Legal Services Society, which administers legal aid in B.C., is expected to be $79 million this fiscal year. That total is projected to drop by about $1 million over the next three years. Two decades ago, the budget was $89 million. If the cost of living is included, funding for legal aid in the province has dropped by nearly 40 per cent since 1995.
Legal aid funding is primarily on a block tariff system and a lower level criminal charge that ends with a one-day trial, will result in a total payment of about $500 to defence counsel, says Eder.
For other matters, such as a full-day preliminary hearing, the tariff published by the LSS provides for payment of $600. A one-day trial to defend an indictable offence pays $800, according to the tariff.
Eligibility has also been reduced, resulting in a sharp increase in the number of unrepresented accused, notes Eder.
An individual seeking legal aid in B.C. must have a net income of less than $18,000 annually. For a family of four, the net household income must be below $36,000.
An increase of about $50 million to legal aid in B.C. would not only ensure representation in criminal and family courts, it could prove to be revenue neutral, suggests Eder.
“Unrepresented litigants slow down the court system tremendously,” she says.
Defence lawyers in B.C. are planning to continue protests over legal aid funding that began last year. The job action includes a refusal to schedule any matters other than urgent bail hearings, in the first week of every calendar month.
The protest began in Vancouver and Kamloops and is scheduled to expand next month to Abbotsford and Chilliwack, says Eder.
A spokesperson for the Ministry of Justice pointed to five pilot projects, announced last year, at a cost of $6 million over three years, as part of the province’s legal aid efforts. The projects included the hiring of a full-time family law duty counsel in Victoria and expansion of a family law help line, which people can call from anywhere in B.C.
In terms of the rise in unrepresented litigants, the province has made more legal information available online, as has the LSS, the spokesperson explains.
It is also encouraging out-of-court resolutions in family law matters.
Update 4:30 pm: Corrected numbers regarding CBA-BC's requests for legal aid funding.
Update 5:30 pm: Comments from Ministry of Justice added.
Nishnawbe-Aski Legal Services Corporation will pen the Gladue reports,
|Celina Reitberger says Nishnawbe-Aski Legal Services Corp. will pen the Gladue reports, often presented at the sentencing stage of criminal proceedings, to reduce the number of accused aboriginal people held in pretrial custody.|
“If we can bring Gladue into play at the bail hearing, we can come up with a healing plan for the individual and then that individual, A: gets out of jail and B: gets to start his or her healing journey so that when the time comes to deal with the substantive offence, they’re already down the healing path,” says Celina Reitberger of NALSC.
“If you’ve seen the John Howard [Society of Canada’s] report about the breakdown in the bail system, it is people of poverty who are being penalized,” she adds.
NALSC serves Treaty 9, an area bigger than the size of France with a population of 50,000. But until now, it had no Gladue report writers to help courts understand the specific life circumstances of accused indigenous people who appear before them.
Lawyers often write Gladue reports, but Reitberger says that wasn’t always productive due to lack of trust between counsel and their aboriginal clients.
“Lawyers were given five hours to do Gladue submissions but in our negotiations with Legal Aid Ontario, we said, ‘Well, we find for the most part this is not effective because the aboriginal clients are not going to open up to their lawyers about the troubling aspects of their lives,” she says, adding her organization will give priority to aboriginals when hiring report writers.
Gladue reports — which include recommendations for conviction, such as restorative justice — are submitted to courts due to the disproportionate number of aboriginal people in the criminal justice system.
The funding from LAO will allow NALSC to hire three Gladue report writers in Thunder Bay, Timmins, and Sioux Lookout, Ont. The money going to NALSC is not part of the provincial government’s new $95.7-million funding over three years for increased legal aid eligibility.
For its part, LAO says it’s filling a huge access to justice gap.
“The provision of Gladue reports for aboriginal accused across Ontario in legal aid’s view is a major access to justice issue,” says Nye Thomas, director of general of policy and strategic research at LAO.
Thomas adds the Supreme Court of Canada has said, “not once but twice,” that courts should have Gladue reports when considering sentencing for aboriginal accused individuals.
“In our view, we’re feeling a major access to justice gap for some of Ontario’s most vulnerable criminal accused.”
|‘The lesson here is if you get a claim like this, really take a look at what the damage is,’ says Gil Zvulony.|
Cornell dismissed the action against LAO, which apologized after an investigation, but found employee Cassandra Reddick liable for the breach after she called McIntosh in 2010 to tell her she had obtained confidential information from her case file.
The review of the file indicated McIntosh had a children’s aid file, and Reddick threatened to call the Children’s Aid Society in order to have her children taken away from her. Reddick didn’t defend the action, according to Cornell.
While McIntosh claimed Reddick had disclosed the information to the CAS to have it undertake an ultimately fruitless investigation into her, Cornell found there was no evidence to support that assertion. He also rejected McIntosh’s claims for two years of lost wages of $52,000 due to her inability to work as a result of the anxiety the privacy breach had caused her.
“It is apparent from the plaintiff’s medical records that she was suffering from depression and anxiety prior to this incident,” wrote Cornell, adding there was no medical report documenting her condition after the breach apart from a medical note from a doctor who had seen her for anxiety in 2011.
But in assessing damages for the privacy breach, Cornell found there was a clear case for establishing liability.
“The information that had been provided by the plaintiff to Legal Aid Ontario was clearly personal information. It was provided with an expectation that the plaintiff’s privacy interests would be respected and that the information would be used in connection with her legal aid application alone,” he wrote.
Despite the finding, Cornell went on to find the breach had affected her emotional state “in a minor fashion only.” He rejected McIntosh’s claims for punitive and aggravated damages but did award her partial indemnity costs of $6,500.
The case has echoes of Jones v. Tsige, a landmark case in which the Ontario Court of Appeal established the tort of intrusion upon seclusion. In that case, Winnie Tsige, an employee of the Bank of Montreal, had repeatedly accessed the personal financial records of fellow staff member Sandra Jones. Tsige was in a relationship with Jones’ former spouse.
Toronto privacy lawyer Gil Zvulony says McIntosh is a reflection of the limited damages courts are likely to award unless the plaintiff can prove substantial harm from the breach.
“It’s not going to be a windfall,” he says.
“I’ve personally seen some crazy cases where we’ve overcome that hurdle,” he adds, citing a case that ultimately settled in which someone posted naked photos of a woman on Facebook.
“The lesson here is if you get a claim like this, really take a look at what the damage is,” says Zvulony.
“Definitely, the minor stuff is going to be Small Claims Court,” he adds, noting plaintiffs take a risk that they may not get costs if the court ultimately determines it to be a small claims matter.
Lawyer Mark Hayes of Hayes eLaw LLP agrees. While this case "was still in the Superior Court, there is a real possibility that future intrusion upon seclusion cases will be before the Small Claims Court, which makes sense in view of the damages limits placed on such claims by the Court of Appeal," he says.
Update 1:40 pm.: Comments from Mark Hayes added.
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