The Lexpert Guides to the Leading US/Canada Cross-Border Corporate and Litigation Lawyers in Canada profiles leading business lawyers and features articles for attorneys and in-house counsel in the US about business law issues in Canada.
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DOING BUSINESS ONLINE IN CANADA The key to dealing with the CASL on an operational level, lawyers say, is proactivity. "Businesses should set out immediately to get express consents where they haven't done so already, so there will be no ambiguity about dealing with Canadian customers and prospects," says Richard Corley of Blake, Cassels & Graydon LLP's Toronto office. Unlike anti-spam legislation, privacy laws and jurisprudence are not new to the Canadian legal and business landscape. Their rapid evolution, however, is cause for consternation for any business trying to stay current with the issues. "Privacy legislation is a fact of life for any company doing business in Canada," says John Chimienti of Toronto, Canadian Tire's Associate General Counsel and Chief Counsel, Retail. "If anything it will get worse by becoming stricter and more rigorous as consumers continue to demand that companies take information seriously." To start, there's the new tort of invasion of privacy. To be sure, the Ontario Court of Appeal 2012 judgment in Jones v. Tsige limited the cause of action to "intrusion upon seclusion" and specifically confined its decision to the particular facts of the case before it. Adopting the principles found in the US treatise Restatement (Second) of Torts (2010), the court ruled that to succeed in a claim for intrusion upon seclusion, the plaintiff had to prove that: The defendant acted intentionally or recklessly, and negligence alone would not suffice; the defendant invaded the plaintiff 's private affairs or concerns without lawful justification; and a reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish. The upshot is that claims can arise only for deliberate, significant intrusions into highly offensive matters such as financial or health records, sexual preferences, employment or private correspondence. As well, the court noted that the right to privacy is not absolute and must be balanced with the rights to freedom of expression and the press. However that may be, it is significant that privacy cases are among the fastest-growing category of class actions in Canada. Indeed, Christopher Du Vernet of Mississauga, Ontario's Du Vernet, Stewart, who with colleague Carlin McGoogan represented the plaintiff Sandra Jones in Jones v. Tsige, believes the case will have a wide-ranging impact. "The decision will have an impact on the law relating to celebrity privacy, media law, employment law, family law and property law," he says. "If I was a private investigator involved in any dispute, I'd want to know the case backward and forward." Du Vernet also points out that the new tort does not require proof of actual economic loss. And he's not concerned about the limit of $20,000 that the court suggested for "symbolic" or "moral" damages in all but the most exceptional cases. "Jurisprudence, like that relating to punitive damages, has proven that caps can quickly become history," he says. Then there's the regulatory aspect of privacy law, arising from the federal privacy legislation, as well as provincial legislation in Québec, Alberta and British Columbia. In this regard, a study undertaken by the Privacy Commissioner of Canada in the summer of 2012 suggests that there are still too many businesses that are not in fact taking privacy issues seriously enough: 25 percent of the websites sampled were leaking personal information to third parties without the knowledge of the individuals affected. "While the Privacy Commissioner's reaction was relatively gentle in this instance, it is expected that many more websites 16 | LEXPERT • June 2013 | www.lexpert.ca B-00-Features.indd 16 13-05-17 9:29 AM