LEXPERT MAGAZINE
|
JANUARY/FEBRUARY 2018 45
| TOP CASES |
"not routinely required," but that officials
"may request" them.
During the course of an audit of BP Can-
ada, the company redacted the issues lists
from responses to CRA inquiries. CRA
brought a motion to compel production
of the redactions. ere was no evidence
that CRA had special concerns that led to
the request: its position before the court
was that it sought the issues list as a "road
map" to facilitate BP Canada audits going
forward. "It was pretty clear that there were
no real issues on the audit, and the Agency
just wanted to make things more conve-
nient for itself," says Steve Suarez, a tax
lawyer with Borden Ladner Gervais LLP
in Toronto.
But as Suarez points out, the court went
well beyond the issues in the particular
case. "e Chief Justice's reasons establish
principles of general application, including
the fact that self-assessment doesn't mean
self-auditing and that the Income Tax Act
cannot be read to say that the CRA simply
gets what it wants," he says.
02
Google v. Equustek
Solutions, 2017 SCC 34
In this landmark decision, the SCC upheld
an order requiring Google to block from its
worldwide search results websites that were
selling equipment built on intellectual
property owned by a Canadian company.
e decision sends a clear message that
Canadian courts are increasingly willing
to ignore provincial and national borders
to ensure that justice is done in the busi-
ness world. It is the most expansive ruling
on the scope of internet jurisdiction in the
common-law world to date. Still, the case
is in line with other Canadian decisions
that have seized jurisdiction over entities
operating in Canada, attempting to regu-
late not only what these entities can do in
Canada, but also in the rest of the world.
Not everyone's happy about the deci-
sion, though, largely because Google was
essentially an innocent third party whose
singular connection to British Columbia,
where the respondent Equustek Solutions
was based, was that it indexed Canadian
websites and advertised in the province.
Observers have expressed concerns regard-
affirming that the very clearest of legisla-
tive language is required to override these
privileges, the Supreme Court of Canada
has broadened even further the wide pro-
tection Canadian law affords them.
What stands out about these decisions
is that the statutory language aimed at
overriding privilege seems clear enough.
Alberta's Freedom of Information and Pro-
tection of Privacy Act requires public bodies
to produce documents to the Privacy Com-
missioner on request despite "any privilege
of the law of evidence."
But according to the high court's reasons
in Alberta v. University of Calgary, that
phrase did not reflect a clear and unambig-
uous legislative intent to override solicitor-
client privilege. e court emphasized that
solicitor-client privilege "was fundamental
to the proper functioning of our legal sys-
tem and a cornerstone of access to justice."
"Given the statutory language, the
court's conclusion is a striking one and
shows just how specific lawmakers will
have to be if they want to override the
privilege," says Maureen Littlejohn in the
Toronto office of Davies Ward Phillips &
Vineberg LLP.
Lizotte v. Aviva Insurance took the prin-
ciples laid down in the Alberta sister case
one step further by extending them to liti-
gation privilege. "at's a big step forward
in this area of the law," Littlejohn says.
e case arose under Quebec's Act re-
specting the distribution of financial prod-
ucts and services (ADFPS), which states
that insurers "must, at the request of [the
regulator], forward any required docu-
ment or information concerning the ac-
tivities of a representative" to the regula-
tor. Aviva refused to turn over certain
documents that were admittedly covered
by litigation privilege. e SCC ruled that
the ADFPS did not "contain sufficiently
clear, explicit and unequivocal language to
abrogate litigation privilege."
04
Douez v. Facebook,
2017 SCC 33
e Supreme Court of Canada revived
a privacy class action against Facebook
brought by 1.8 million residents of British
Columbia, in a decision that validated the
ing adverse implications for Canadian
businesses abroad and a backlash from
other jurisdictions seeking to make orders
that affect conduct in Canada.
BARRY SOOKMAN
McCarthy Tétrault LLP
"IF GOOGLE CAN UNDERMINE
THE CANADIAN ORDER, SOCIAL
MEDIA COMPANIES WILL BE FREE
TO CARRY ON THEIR INTERNATIONAL
ACTIVITIES WITH NO OBLIGATION
TO COMPLY WITH ANYTHING
BUT LOCAL LAWS."
What is clear is that the delicate bal-
ancing act in deciding these types of cases
represents a global conundrum pitting the
need to impose and enforce order on the
internet, while respecting the territorial
limits of courts' jurisdiction. Evidence of
just how that conundrum might evolve can
be found in a subsequent decision of a Cali-
fornia court, which granted Google a pre-
liminary injunction to block enforcement
of the SCC's order in the United States.
Barry Sookman in McCarthy Tétrault
LLP's office in Toronto was lead counsel
for a number of interveners at the SCC.
He says that "momentous consequences"
could follow if Google succeeds in obtain-
ing a permanent injunction in the US. "If
Google can undermine the Canadian or-
der, social media companies will be free to
carry on their international activities with
no obligation to comply with anything but
local laws."
03
Lizotte v. Aviva Insurance,
2016 SCC 52; Alberta v.
University of Calgary,
2016 SCC 53
Canada already affords the highest degree
of protection for solicitor-client or litiga-
tion-privileged documents in the world. By
