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Ghomeshi Claim Faces Significant Challenges

By John C. Batzel

The controversial firing of former CBC radio host and personality Jian Ghomeshi has captured the public’s attention in recent days for many reasons, most of which have nothing to do with the law. In terms of the legal issues arising from the termination of Mr. Ghomeshi’s employment, these will largely be decided in a grievance arbitration between Mr. Ghomeshi’s union and the CBC, in which he will be seeking reinstatement. The most interesting legal issues, however, concern the $55-million civil lawsuit filed by Mr. Ghomeshi’s lawyers on Monday, which is likely to face some significant challenges. (more…)

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Enterprise Compliance with the CASL Software Provisions – Six Questions for Large Organizations

By Martin P.J. Kratz, Q.C. and Graeme S. Harrison

The electronic communications provisions of Canada’s Anti-Spam Law (CASL) came into force on July 1, 2014. CASL is generally known for its sweeping regulation of “commercial electronic messaging.” However, in addition to the above provisions, a number of CASL provisions set to come into force on January 15, 2015, will impose new compliance burdens on businesses that create, distribute or utilize computer systems in the course of business – in other words, most of the businesses in Canada.

Broadly speaking, CASL prohibits a person from installing a computer program on a computer system of another without the prior express consent of the owner of the system, or an authorized user. CASL defines a computer program to include any data or symbols capable of causing a computer system to perform some function. CASL further requires a person who installs a program capable of certain specified functions – including functions that track or record personal information – to give notice of and obtain a separate express consent in respect of each individual specified function. (more…)

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Canada’s Anti-Spam Legislation: An Advantage for Cloud Computing?

By Martin P.J. Kratz, QC and Arnold Fridhandler

The communications provisions of Canada’s Anti-Spam Legislation (CASL) came into force on July 1, 2014. Generally speaking, CASL prohibits a person from sending a “commercial electronic message” without the consent of the recipient.

On January 15, 2015, further prohibitions relating to the installation of computer programs will come into force. Considerable uncertainty remains with respect to the application of these provisions. We expect that CASL will impose significant compliance hurdles for traditional software providers due to its regulation of programs “installed” on a computer system. Because it does not appear to regulate software-as-a-service to the same extent, CASL may favour cloud-computing products and catalyze the expanded adoption of cloud computing in Canada. (more…)

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Supreme Court of Canada Grants Civil Plaintiffs Access to Competition Bureau Wiretaps

By Emrys Davis and Ranjan K. Agarwal

Canadian civil plaintiffs can now access wiretaps collected by authorities in the context of criminal investigations. The issue of access arose in the aftermath of the Competition Bureau’s octane investigation. Between 2004 and 2008, the Bureau intercepted and recorded 220,000 private communications among individuals suspected of fixing the price of retail gasoline. Charges, guilty pleas, convictions – and eventually a civil class action – followed. To advance their case, the class action plaintiffs requested disclosure of the Bureau’s wiretaps. The Quebec Superior Court ordered disclosure. The Supreme Court of Canada dismissed an appeal of that order in Friday’s decision Imperial Oil v Jacques, 2014 SCC 66. (more…)

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Reminder: Three New Statutory Leaves of Absence are Set to Take Effect in Ontario on October 29, 2014

By Michelle D. MacGillivray and Talia K. Bregman

On October 29, 2014, the following three new job-protected leaves of absence will come into effect under Ontario’s Employment Standards Act, 2000 (ESA):

  1. family caregiver leave: up to eight weeks of unpaid, job-protected leave to provide care or support to a family member with a serious medical condition.
  2. critically ill child care leave: up to 37 weeks of unpaid, job-protected leave to provide care to a critically ill child.
  3. crime-related child death or disappearance leave: up to 52 weeks of unpaid, job-protected leave for parents of a missing child and up to 104 weeks of unpaid, job-protected leave for parents of a child who has died due to a crime.

(more…)

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B.C. Supreme Court Upholds Recurring Short-Term Water Use Approvals

By Mike Theroux, Wally Braul and Laura Gill

The B.C. Supreme Court has recently clarified the interpretation of section 8 of the B.C. Water Act. Section 8 relates to the power of the B.C. Oil and Gas Commission (OGC) to grant approvals to oil and gas companies for the short-term use of surface water bodies such as lakes, rivers, streams, and storage dugouts. Many oil and gas companies rely on section 8 approvals in various exploration and development activities. (more…)

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CRTC Concludes First Enforcement Under Canada’s New Anti-Spam Legislation

By Graeme S. Harrison and Arnold Fridhandler

On October 7, 2014, the Canadian Radio-television and Telecommunications Commission (CRTC) announced the conclusion of its first investigation and enforcement action under Canada’s Anti-Spam Legislation (CASL) since coming into force on July 1, 2014.

A computer reseller based in Saskatchewan was placed under investigation by the CRTC after large numbers of complaints were made through the Spam Reporting Centre. The CRTC revealed that a server owned by the computer reseller sent millions of e-mail spam messages through Saskatchewan-based internet service provider, Access Communications. (more…)

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Court of Appeal Denies Certification in Another Misclassification Overtime Class Action

By Carl Cunningham, Ranjan K. Agarwal, Amanda C. McLachlan and Joseph N. Blinick

In the latest installment in a series of recent employment class actions, the Court of Appeal for Ontario has dismissed an appeal by class action plaintiffs in Brown v Canadian Imperial Bank of Commerce. The decision (upholding the lower court’s finding that a proposed misclassification overtime class action was not suitable for class treatment) confirms that for misclassification class actions to be viable in Ontario, class members will be required to demonstrate they have virtually identical roles and responsibilities. (more…)

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Ontario Divisional Court Upholds Controversial Award of the Ontario Human Rights Tribunal

By Ranjan K. Agarwal, Talia K. Bregman and Joseph N. Blinick

In Hamilton-Wentworth District School Board v Fair, the Ontario Divisional Court upheld two noteworthy decisions of the Ontario Human Rights Tribunal. In the Tribunal’s first decision, it found that the Hamilton-Wentworth District School Board discriminated against its employee, Sharon Fair, by failing to accommodate her disability-related needs. In its second decision, the Tribunal ordered that Fair be reinstated more than nine years after her employment was terminated and it also awarded her damages of over $400,000 — one of the largest damages awards made by the Tribunal to date.

These decisions serve as a reminder to Ontario employers about the need to canvass all possible alternatives when faced with a request for accommodation, including reinstatement, and to accommodate employees to the point of undue hardship. (more…)

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BC Supreme Court Stresses “Polluter Pays” in Awarding Damages for Remediation of Contaminated Site

By Mike Theroux, David W. Bursey and Laura M. Gill

The BC Supreme Court recently clarified several principles under the Environmental Management Act relating to liability for remediation costs for contaminated sites. In JI Properties Inc v PPG Architectural Coatings Canada Inc, 2014 BCSC 1619, the Court ordered a former landowner, who was also the historical polluter, to compensate the current owner for $4.75 million in reclamation costs incurred to remove contaminants caused by the former owner’s industrial activities. The case is significant not only due to the size of the award, but also because it sends a strong signal that the Court will interpret the Act in a manner which gives full effect to the “polluter pays” principle. (more…)

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