News

Regulation of the production of AI “products”—is it possible? And how? Some interesting insights in this article: 

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Consent is to be determined on an objective standard, and “trust but verify” those who get access to personal information

On September 9, 2024, a unanimous three judge panel of the Federal Court of Appeal fully reversed the factual conclusions of the court below to conclude that Facebook had violated the Personal Information Protection and Electronic Documents Act (“PIPEDA”) in connection with the Cambridge Analytica scandal. Rather than sending it back to the Federal Court to be determined by another judge, they reached their own conclusions and invited submissions on remedy.

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Ontario Court of Appeal rules that random or unsubstantiated searches are unconstitutional—reasonable suspicion required

For a goodly amount of time, concern has been expressed about the tendency of Canada Border Services Agency (CBSA) officers and other border officials to search devices (phones, tablets, laptops) in the possession of people arriving at Canada’s border, without having to demonstrate any grounds for so doing. In particular, s. 99(1)(a) of the federal Customs Act permits, on its face, officers to search “goods that have been imported” without judicial authorization or grounds for the search whatsoever. It is this provision that has been invoked as authority for device searches, despite the intense privacy concerns that attach to devices and their contents, and the Crown’s position has seen pushback in litigation, before Parliament and in the literature.

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We are very pleased to announce Shreya Gupta as the winner of the 2024 CAN-TECH Rising Star in Tech Law Award.

Shreya Gupta is Director, Legal Counsel (Technology, AI and Privacy) at Loblaw Companies Limited. Prior to Loblaw, Shreya was an associate in Norton Rose Fulbright's Toronto office.  Shreya focuses on technology, artificial intelligence, privacy, cybersecurity and information governance matters. She also advises clients entering into a variety of complex commercial transactions. Shreya is a skilled negotiator and has successfully drafted technology-focused agreements and led negotiations on behalf of startups as well as large organizations. She takes a very practical approach to advising clients and relies on her business background and expertise in doing so.

Shreya recently co-authored a book published by LexisNexis titled, “Legal Guide to Emerging Technologies.” In 2022-2023, Shreya also served as acting general counsel (on secondment) at 7shifts Inc., a team management software provider, while simultaneously managing a busy technology practice at NRF.

Shreya is recognized as a leader by her colleagues given her involvement at NRF as well as in the community. She served as the Co-Chair of NRF’s Race Equity Council for the past four years since its inauguration in Canada to progress the firm's race equity strategy, and regularly speaks on panels and delivers training sessions on technology and privacy matters.

We are pleased to announce that the 2024 CAN-TECH Law Award of Distinction winner is Andrew Nunes!

Andrew is a Vice-Chair of Fasken’s Business Law Department (Ontario), Co-Leader of the Firm’s Technology, Media and Telecommunications (TMT) group and Leader of the Technology Law group for the Ontario region. His practice encompasses numerous aspects of corporate and commercial law, with a particular emphasis on the technology sector and technology related matters.

Andrew routinely assists with establishing, growing and exiting technology-driven businesses, while helping organizations navigate operational, transactional, governance and compliance issues. In addition to buying and selling technology businesses, Andrew’s in-depth knowledge is regularly sought by technology providers and technology users on the development, protection and commercialization of technology products and services. He also provides key insights into the Canadian legislative and regulatory regimes related to information technology (IT), e-commerce, consumer protection, data protection, cyber security, anti-spam, artificial intelligence (AI) and other emerging technologies.

Andrew has accumulated extensive experience in the areas of mergers and acquisitions, corporate reorganizations, joint ventures, business partnerships, complex outsourcings and other transactions. Blue-chip corporations and leading-edge technology companies based in Canada and the U.S. alike rely on Andrew’s guidance for their business-critical decisions and transactions.

An active leader in the wider technology law community, Andrew is Past Chair of the Ontario Bar Association IT and E-Commerce Section and a current Officer of the International Bar Association (IBA) Technology Law 2 Committee. He also served an extended term on the Board of Directors of TechConnex, a leading Canadian technology industry association. His practice is consistently recognized by Chambers Global, Chambers Canada, Lexpert and Best Lawyers. In 2023, Andrew was appointed to the IBA Artificial Intelligence (AI) Presidential Task Force, an initiative that will form part of the IBA Presidential Priorities identified for the 2023/2024 term.

The Supreme Court has determined that school boards are subject to the Charter in all that they do, including employee discipline

The Supreme Court of Canada has decided – decisively – in York Region District School Board v. Elementary Teachers’ Federation of Ontario that the Charter applies to protect the privacy of employees of a public school board in Ontario in the context of a computer search. 

In this case, two teachers employed at Mount Joy Public School, York Region, faced issues shortly after the 2014-15 school year began. They believed another teacher was ineffective and unfairly favored by the school principal. Concerned about their performance reviews, one of the teachers sought union advice and was told to document her concerns.

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Involvement of lawyers in incident response investigations is not enough to make the findings privileged

On April 30, 2024, the Ontario Divisional Court decided the victim of a serious cyber security incident was required to produce to privacy regulators numerous records created in the course of a cyber security incident investigation and response – despite the victim’s vigorous claims of privilege. The Court’s decision in LifeLabs LP v. Information and Privacy Commr. (Ontario) serves as a reminder: you can’t throw a blanket of privilege over everything associated with incident response by simply involving lawyers. It should cause lawyers who practice in the space to consider what steps they can take to protect their clients’ confidentiality. 

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Recent cases show continuing evolution of applying defamation law to the internet

As the internet (as they say these days) “became a thing,” and particularly with the runaway expansion of social media, the law of defamation in Canada has been forced to evolve across a variety of paths, both procedural and substantive. Some recent cases illustrate this continued evolution, though what they most often show is that people seem to neglect basic legal duties or somehow assume they do not apply in the virtual setting.

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Instructive examples of “things not to do” continue to germinate in Canada

This newsletter tries to report on developments related to the presence, use and abuse of AI and large-language models (LLMs) in Canadian legal affairs. The editors suspect that these developments will soon increase from a trickle to a deluge. For this period, we offer a couple of examples of odd and disturbing cases. In the British Columbia case of Zhang v. Chen the parties were involved in high-conflict family law proceedings and the father’s counsel filed an application seeking permission for the children to go to China with the father. In support of the application the father’s counsel pleaded two cases, of which citations and summaries were provided in her brief. When the mother’s counsel could not find the cases and demanded copies, the father’s counsel responded that she had realized the cases were not real. She had obtained the citations and summaries from ChatGPT, and due to her unfamiliarity with the platform she had not realized there was any chance they could be fictitious. She had contacted the bar society upon realization, and made apologies to both the court and opposing counsel. Nonetheless, the mother’s counsel sought special costs against the father’s counsel personally, based on the extra time and expense required to “expose the AI ‘hallucination’” and the father’s counsel’s alleged delay in dealing with the matter.

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Plans for platform regulation are less controversial than originally floated, but hate crimes and hate speech provisions are getting all the attention

On February 26, 2024, the federal Minister of Justice tabled Bill C-63, entitled “An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts”. The Bill principally creates a new law called the Online Harms Act in order to regulate certain online platforms, creates new offenses in the Criminal Code and restores “communication of hate speech” to the Canada Human Rights Act.

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