Supreme Court of Canada Delivers Major Privacy Law Ruling Douez v. Facebook

IN THIS ISSUE Supreme Court of Canada Delivers Major Privacy Law Ruling - Douez v. Facebook... 1 An Overview of Fatal Accident Legislation in Canada.3 Making the Case for Summary Judgment in Soft Med-Mal Claims..6 Winter Maintenance - Mid Year Update... 8 Supreme Court of Canada Delivers Major Privacy Law Ruling Douez v. Facebook By Kathryn Marshall, DWF Toronto, Email: kmarshall@dolden.com On June 23, 2017, there was a significant development in privacy law that will affect the way many companies do business online. 18th FLOOR 609 GRANVILLE ST VANCOUVER, BC. V7Y 1G5 Tel: 604.689.3222 Fax: 604.689.3777 E-mail: info@dolden.com 308 3330 RICHTER ST KELOWNA, BC. V1W 4V5 Tel: 1.855.980.5580 Fax: 604.689.3777 E-mail: info@dolden.com 850 355 4th AVE SW CALGARY, AB. T2P 0H9 Tel: 1.587.480.4000 Fax: 1.587.475.2083 E-mail: info@dolden.com 500 18 KING ST E TORONTO, ON. M5C 1C4 Tel: 1.416.360.8331 Fax: 1.416.360.0146 Toll Free:1.855.360.8331 E-mail: info@dolden.com The Supreme Court of Canada ruled in Douez v. Facebook Inc., 2017 SCC 33 that a resident of British Columbia can pursue her lawsuit against Facebook in British Columbia rather than in California, even though Facebook s terms of use clause required all actions against it to be brought in California. Background This suit stems from Facebook s use of a controversial advertising platform. The name and pictures of Facebook users were used in advertisements hosted by the social media giant, which were called sponsored stories. These stories allowed advertisers to highlight an activity or action by a Facebook user, such as liking a page. Facebook no longer uses this advertising tactic, but for some, the alleged damage had already been done. The plaintiff, Deborah Douez, commenced an action in British Columbia against Facebook. She alleged that her name and image were used in a sponsored story without her consent. She said this VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 1

was a violation of section 3(2) of British Columbia s Privacy Act, which prohibits a person from using the name or image of another person for advertising without his or her consent. In addition to her suit for damages, the plaintiff also asked the court to certify her action as a class action under the Class Proceedings Act. This class would include an estimated 1.8 million British Columbians who had their names and photos utilized in a sponsored story. Facebook attempted to stop this action from being brought in British Columbia. It argued that according to the terms of use all users of the social media site agreed to, all actions must be brought in California where Facebook has its headquarters. This created a problem, since the British Columbia Privacy Act stipulates that all actions must be commenced in British Columbia. Facebook tried to stay the action in British Columbia, however the chambers Judge ruled that the jurisdiction clause in Facebook s terms of use was unenforceable, and certified the class action. The British Columbia Court of Appeal overturned this decision, ruling that the jurisdiction clause was indeed enforceable. Supreme Court of Canada Decision The SCC overturned the British Columbia Court of Appeal in a ruling that will have a major impact on privacy law and the internet. In a 4-3 split decision, the SCC ruled that the clause in question was not enforceable. The SCC acknowledged that while forum selection clauses are common, they should not be blindly enforced. The party trying to stay an action based on this clause must show that the clause is valid, clear and enforceable and that it applies to the cause of action before the court. If the party is able to do this, the plaintiff must show strong cause why this clause ought not to be enforced. The court must weigh a variety of factors, such as convenience of the parties, fairness between the parties and the interests of justice. While the SCC found that Facebook s forum selection clause was enforceable at face-value, the plaintiff succeeded in showing strong cause that it should not be enforced. The unequal bargaining power between the users and Facebook were factors that played a role in this decision, along with the importance of privacy rights in Canada. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 2

Significance This case sends a clear message to all courts: online contracts, the kind many people click on virtually every day without the ability to negotiate the terms, should not be easily enforced. This is especially true for contracts used by social media platforms where people share personal information on a daily basis. Privacy rights are steadily gaining more importance in society, with law makers introducing special legislation to protect these rights. In the Douez decision, the SCC termed privacy rights as quasiconstitutional. Forum selection clauses popularly used by many companies - which often purport to override important local privacy laws increasingly face an uphill battle when it comes to enforcement. An Overview of Fatal Accidents Legislation in Canada By Emily Unrau, DWF Vancouver, Email: eunrau@dolden.com There is no common law entitlement to damages following a death. As a result, each province and territory in Canada has enacted its own legislation compensating those whose family members have been killed by the negligence of another. While these various acts have significant overlap, there are crucial differences in how non-pecuniary damages are assessed. Non-pecuniary damages in the context of a wrongful death claim attempt to compensate surviving family members for their bereavement, or what is sometimes categorized as loss of guidance, care and companionship 1. A surviving family member s entitlement to non-pecuniary damages can be put into one of three categories, depending on the province or territory where the claim is made: a mandatory right to a specified amount of non-pecuniary damages, an entitlement to unspecified non-pecuniary damages which must be 1 Ontario, NS, NB, NFLD, PEI VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 3

proven, and no allowance for non-pecuniary damages at all. The result is that non-pecuniary damages vary significantly by jurisdiction Non-Pecuniary Damages Specified by Statute Each of Alberta 2, Saskatchewan 3, Manitoba 4 and the Yukon 5 have enacted legislation specifying the amount of non-pecuniary compensation to be awarded to the deceased s family members. None require proof of bereavement. Alberta has the highest awards of this group at $82,000 to the deceased s spouse and parent (to be split if brought on behalf of both parents), and $49,000 to each of the deceased s adopted or biological children. Of interest, while Alberta provides the greatest statutory benefits to the deceased s family, it excludes the deceased s stepchildren. In Dares v. Newman, 6, this had the inconsistent effect of excluding the deceased s partner s children whom he d raised as his own, but allowed damages for his adoptive children to whom he had not spoken with for 20 years. The other provinces in this list range from a high of $75,000 in the Yukon to each of the deceased s spouse and parent (to be split if brought on behalf of both parents), to a low of $10,000 in Manitoba to each of the deceased s children over the age of 18, step-children, a person to whom the deceased stood in loco parentis, step-parent, person who stood in loco parentis to the deceased, siblings, grandchildren and grandparents. A slight majority of provinces, Ontario 7, Quebec 8, New Brunswick 9, Nova Scotia 10, Prince Edward Island 11 and Newfoundland 12, allow non-pecuniary damages to be awarded to family members of the deceased, as long as they are able to prove their grief. The average 2 Fatal Accidents Act, RSA 2000, c F-8. 3 The Fatal Accidents Act, RSS 1978, c F-11. 4 The Fatal Accidents Act, CCSM, c F50. 5 Fatal Accidents Act, RSY 2002, c 86. 6 2012 ABQB 328 7 Family Law Act, RSO 1990, c F 3. 8 Civil Code of Quebec, CQLR c CCQ-1991. 9 Fatal Accidents Act, SNB 2012, c 104. 10 Fatal Injuries Act, RSNS 1989, c 163. 11 Fatal Accidents Act, RSPEI 1988, c F-5. 12 Fatal Accidents Act, RSNL 1990, c F-6. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 4

damages awarded to bereaved family members in these provinces falls near the middle of the damages set by statute in other provinces. This approach has the distinct disadvantage of requiring family members to prove damages in court if a settlement cannot be reached, which can be a traumatic and overwhelming experience. However, the advantage to this approach is that the court can tailor damages to the particular case at hand. 13 The highest one-time non-pecuniary awards for bereavement damages in Canada come out of Ontario and Quebec, both of which occasionally award damages of over $100,000. 14 This flexibility to award higher damages is exercised in situations where the circumstances of the death are particularly traumatic and there is strong evidence of bereavement. No Entitlement to Non-Pecuniary Damages In British Columbia 15 and the Northwest Territories 16, there is no statutory entitlement to non-pecuniary/bereavement damages. However, in cases involving infants, BC courts have found a way around this by considering awards for loss of guidance, companionship and affection as pecuniary damages. Most recently, the conventional upper limit for these damages has been set at $35,000. 17 In case law arising out of the NWT, the court provisionally assessed non-pecuniary damages of $30,000 for loss of care, guidance and affection to the deceased s infant son, despite recognizing that there was no statutory provision for such an order. 18 There have been numerous efforts in BC to modernize the Family Compensation Act, including the formulation of the Wrongful Death Law Reform Society which has proposed legislation calling for reasonable non-pecuniary losses arising from the loss of the 13 Review of Damage Amounts Under Section 8 of the Fatal Accidents Act: A Discussion Paper, Government of Alberta, Justice and Solicitor General, May 2012 at p 5 14 See for example Fiddler v. Chiavetti, 2010 ONCA 210 and Shaikh c. Kane, 2010 QCCS 1871 15 Family Compensation Act, RSBC 1996, c. 126. 16 Fatal Accidents Act, RSNWT 1988, c. F-3. 17 Stegemann v. Pasemko, 2007 BCSC 1062. 18 Holan v. Stanton Regional Health Board, 2002 NWTSC 26. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 5

decedent s love, guidance, care and companionship and affection. 19 There was also the first reading of a bill in 2011 which would have amended the existing Family Compensation Act to include specified damages to family members of the deceased, however this bill was never passed. Conclusion The difference in non-pecuniary damages between jurisdictions in the context of wrongful death can be several tens of thousands of dollars. One must always be aware of the specific jurisdictional issues when dealing with wrongful death claims. Making The Case For Summary Judgment in Soft Med-Mal Claims By Mario Delgado, DWF Toronto, Email: mdelgado@dolden.com In Hryniak v. Mauldin, the Supreme Court of Canada called for a culture shift in the approach to civil litigation that entails simplifying pre-trial procedures and moving away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case noting that [t]he summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial. More recently, the courts have held that there is no right to a trial in civil matters. Where a judge is satisfied that it is in the interest of justice to proceed summarily for all or part of the action, proceeding in that manner better fulfills the goals of the justice system than a slower and more expensive trial. As a matter of law, where there is no genuine issue with respect to any one element of a cause of action, the cause of action cannot succeed and summary judgment must be granted. 19 http://intheirname.ca/wp-content/uploads/2015/10/wrongful-death- ACCOUNTABILITY-ACT.pdf at s 7(d). VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 6

In soft medical-malpractice claims, a plaintiff must prove, among other things, that the health practitioner fell below the requisite standard of care and that the breach of that standard caused the plaintiff s injuries. If a plaintiff cannot establish either one of these two elements, then the plaintiff s claims cannot succeed, irrespective of whether there is an injury or what the quantum of damages may be. As a general rule, in order to establish liability on the part of a healthcare practitioner, a plaintiff will be required to lead expert evidence in support of the claim that, (a) the health practitioner fell below the requisite standard of care; and (b) that the breach of the standard caused the plaintiff s alleged injuries. In these types of cases both plaintiff and defendant can readily assess negligence on the part of the health care practitioner well in advance of trial. The information required to assess negligence can be obtained without proceeding with full oral discoveries. It is important to note that pursuant to the Evidence Act in each province, the clinical notes and records made by health practitioners are taken to be an accurate account of the events as recorded. The issue of whether there was a breach in standard of care can often be assessed solely on a review of the clinical notes and records of the healthcare practitioner. For illustration, assume the allegation is that the technique employed during the laser hair removal procedure fell below the standard of care. One could discern what technique was employed by reviewing the clinical notes and records. From there, it is a matter of having an expert opine as to whether the technique documented in the records meets the standard of care. Barring a failure by the medical practitioner to take adequate notes, the issue of whether there was a breach of the standard of care does not require the examination of the defendant, as no better information will be gained by examining the defendant. Further, the issue of whether the breach caused the plaintiff s alleged injuries can also be assessed on a review of the clinical notes and records of the healthcare practitioner, coupled with the clinical notes and records of the plaintiff s preceding/subsequent treating healthcare practitioner(s). VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 7

For illustration, assume the allegation is that the defendant chiropractor caused a back injury to the plaintiff. From a review of the plaintiff s past medical history, it becomes apparent that the plaintiff had a pre-existing back injury. From a review of the clinical notes and records of the plaintiff s subsequent treating healthcare providers it becomes evident that the back injury remains consistent with the plaintiff s pre-existing symptoms. These records will allow an expert to opine on whether the treatment provided by the defendant chiropractor caused or exacerbated the plaintiff s alleged injuries. Generally, if after a review of the clinical notes and records, the plaintiff is unable to deliver an expert report that is supportive of negligence, then it is unlikely that the plaintiff will be able to obtain an expert report after the examinations of both parties are completed. In fact, in many instances, the examination of the plaintiff is not necessary to determine issues of negligence (although necessary to determine issues of damages). In cases where the plaintiff cannot produce an expert report following a review of the documentary production, then the defence would be well served to consider moving for summary judgment. Winter Maintenance Mid Year Update By Robert Smith, DWF Toronto, Email: rsmith@dolden.com I know you are thinking, Why am I reading about winter maintenance cases in the summer - I just survived a brutal winter and a mediocre spring. If there is one thing we know about Canada, it s that winter is always just around the corner. Given that our courts dockets are groaning under the weight of winter slip and fall claims, it is never too early to start studying the most recent cases. Be Careful What You Wish For: Mackay v. Starbucks Corporation, 2017 ONCA 350 In this case, the Ontario Court of Appeal reaffirmed the principle that the owner of a property adjacent to a municipal sidewalk can face liability under the Occupiers Liability Act, R.S.O. 1990, c. O.2 (the OLA ) under certain circumstances. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 8

The plaintiff fell on an ice-covered municipal sidewalk at the entrance to a patio in front of Starbucks. The patio was enclosed by a fence that included a three foot wide opening that joined the patio and the sidewalk. Starbucks maintained the patio and the area of the sidewalk where the fall occurred. The pedestrian traffic over the portion of the sidewalk where the plaintiff fell was almost exclusively used by Starbucks customers. The trial judge concluded that Starbucks created a path for its customers over the subject portion of municipal sidewalk and it did this for its commercial gain. As a result, the trial judge held that Starbucks had assumed sufficient control over the sidewalk to become an occupier for the purposes of the OLA. The Court of Appeal held that the municipality owned the sidewalk and therefore has primary responsibility for its maintenance. The Court of Appeal held that much more than the mere clearance of ice and snow is required for the owner of an adjacent property to face liability under the OLA. The Court of Appeal held that there was no blanket rule that imposes liability for winter maintenance on the owners of properties that are adjacent to municipal sidewalks. Instead, the court held that such a determination will be made on a case-by-case basis. The Court of Appeal upheld the trial judge s determination and held that, in this case, Starbucks became an occupier of the municipal sidewalk by exercising control over it. See the Big Picture: Reichert v. Home Depot, 2017 ABQB 184 A winter maintenance contractor escaped liability because a slip and fall occurred when there was one inch of snow on the ground and the contract forbade it from performing any maintenance until two inches of snow had fallen. The court noted it is the industry standard for winter maintenance contracts to oblige the contractor to monitor the weather and clear snow only after more than two inches have fallen. The court referred to the inch that fell on the date of loss as a minimal amount of snow. The court also noted that it was more reasonable not to clear such a small amount of snow immediately after it fell. The evidence showed that it would have endangered pedestrians to bring in plowing/salting trucks while Home Depot was open for business and its parking lot was full of cars and people. In light of this, defence counsel and adjusters should question contractors about what actions would have been needed to clear a given amount of snow at the time of the loss. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 9

This evidence may be very useful in determining whether reasonable care was taken in the circumstances. Eyewitness Testimony Wins the Day: Cannon v. Cemcor Apartments Inc., 2017 ONCA 378 The Ontario Court of Appeal upheld the trial judge s dismissal of a slip and fall matter on the basis that the evidence of the site conditions showed that a full clearing of the parking lot was not required. The trial judge held that Environment Canada s snowfall records did not accurately reflect the conditions at the parking lot in question, in light of the fact that they were recorded at an airport 25 kilometers away. The trial judge preferred the eyewitness testimony that showed that the entire parking lot had been cleared except for one icy patch where the plaintiff fell. The Court of Appeal concluded that it was open for the trial judge to prefer the eyewitness testimony over the Environment Canada records. VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 10

EDITOR Chris Stribopoulos Tel: 647.798.0605 Email: cstribopoulos@dolden.com Please contact the editor if you would like others in your organization to receive this publication. CONTRIBUTING AUTHORS Kathryn Marshall Tel: 647.252.3557 Email: kmarshall@dolden.com Emily Unrau Tel: 250.980.5582 Email: eunrau@dolden.com Mario Delgado Tel: 647.798.0606 Email: mdelgado@dolden.com Robert Smith Tel: 647.798.0609 Email: rsmith@dolden.com VANCOUVER KELOWNA CALGARY TORONTO WWW.DOLDEN.COM 11