Lexpert Magazine

LEXPERT MAGAZINE | JANUARY 2013 51 TOP 10 CASES 2012 chaser," who must be viewed as "credulous and inexperienced." e court also ruled that first impres- sions carried a great deal of weight and that fine print in the form of disclaimers or conditions that were not prominently dis- played should be ignored. 7 Leon's Furniture Limited v. Alberta In a ruling that could well have impli- cations for the interpretation of privacy legislation across the country, the Supreme Court of Canada refused leave to appeal from the decision of the Alberta Court of Appeal, which rejected the concept that privacy is the only interest to be considered under privacy statutes. "e Alberta Court of Appeal's deci- sion is an important recalibration of privacy law to focus on the balancing of competing interests between the right to protect information and the right to use it," says Geoff Hall in McCarthy Tétrault LLP's Toronto office, who with colleague Kara Smyth in the Calgary office repre- sented Leon's. Smyth adds that the nod to business interests was not nearly as evident in pre- vious jurisprudence. "Our retail clients followed this case closely because of its potential impact on their privacy practices," she says. In justifying Leon's policy of collecting driver's licence and plate information from customers picking up furniture for fraud prevention and deterrence purposes only, the court noted that the "reasonableness" standard in the statute did not translate to a standard of necessity, minimal intrusive- ness or best practices. "ese are not inter- pretations that are available given the plain wording of the statute," the court stated. Hall says the decision is directly relevant to BC privacy legislation, which is similarly worded. "Its application is not as clear in terms of federal privacy law, but it's impor- tant to note that the federal statute embraces similar balancing concepts," he says. 8 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada; Society of Composers, Authors and Music Publishers of Canada v. Bell Canada; Alberta (Education) v. Canada Copyright Licensing Agency (Access Copyright); Re: Sound v. Motion Picture Theatre Associations of Canada. ese five cases, all of which pitted dis- tributors and users of copyrighted materi- als against collective societies representing creators, deal with the correctness of Copy- right Board tariff decisions governing music downloading and streaming, Internet game distribution over the Internet, textbook pho- tocopying and film and TV soundtracks. ey establish the extent to which creators of audio and visual works can claim royalties for the use of their works by others. "ese cases have an important impact on the cost structures impacting business in a wide range of sectors that make use of copyrighted material for various purposes," says Stephen Zolf of Heenan Blaikie. e cases expand the concept of fair deal- ing, stating that the enumerated purposes in the Copyright Act, such as the one for "research or private study," must be given a "large and liberal interpretation." ere- fore, consumers who listen to brief excerpts of music before making purchases were fair dealing for the purpose of research, and cre- ators were not entitled to collect royalties for these previews. "is principle, which focuses on looking at the purpose of the user to determine whether the user's activ- ity is fair dealing, will have a significant impact in terms of carving out much greater scope for users to copy works," Zolf says. e SCC also established that downloads of musical works were not subject to a "com- munication" tariff because they amounted to "deliveries" to end users and not com- munications or performances. ere was no communication, the court concluded, because there was no practical difference between buying a copy of the work in the store, receiving it by mail, or downloading it from the Internet. By contrast, the SCC found that streams of musical works were communications inasmuch as streaming involved an inten- tion that the same work undergo repeated transmissions, even if each transmission was initiated by an individual consumer. 9 Combined Air Mechanical Services Inc. v. Flesch; Mauldin v Hryniak; Bruno Appliance and Furniture v. Hryniak; Lakeshore v. Mikes; Parker v. Casals In these five cases, the Ontario Court of Appeal promulgated a new and far-reach- ing rule for determining whether a case is appropriate for summary judgment under Ontario's new summary-judgment rules. "ese cases are mandatory reading for Ontario lawyers," says Sarit Batner in McCarthy Tétrault's Toronto office, who represented the defendant, Robert Hryn- iak, in Mauldin and in Bruno Applicance. e test enunciated was the "full appre- ciation test," one that requires courts to decide whether the forensic machinery of a trial is necessary for full appreciation of the evidence and issues and a fair adjudica- tion. In making this determination, judges can supplement the record with limited oral evidence, weigh evidence, evaluate credibil- ity and draw inferences. "Most lawyers would say that the court's interpretation of the new rule has had a significant impact on the fundamental decisions lawyers make about where to direct their cases in terms of applying for summary judgment or proceeding straight to trial," Batner says. "e courts have indi- cated that they are looking to the profession to think about creative ways to get matters to court efficiently and effectively to pro- mote access to justice."

• Cover
• Editorial
• ProfessionalOpportunities
• People On The Move
• Features
• Columns