Teresa Scassa - Blog

In R. v. Orlandis-Habsburgo the Ontario Court of Appeal revisited the Supreme Court of Canada decisions in R. v. Spencer, R. v. Gomboc, and R. v. Plant. The case involved the routine sharing of energy consumption data between an electricity provider and the police. Horizon Utilities Corp. (Horizon) had a practice of regularly reviewing its customers’ energy consumption records, including monthly consumption figures as well as patterns of consumption throughout the day. When Horizon encountered data suggestive of marijuana grow operations, they would send it to the police. This is what occurred in Orlandis-Habsburgo. The police responded by requesting and obtaining additional information from Horizon. They then conducted observations of the accused’s premises. The police used a combination of data provided by Horizon and their own observation data to obtain a search warrant which ultimately led to charges against the accused, who were convicted at trial.

The defendants appealed their convictions, arguing that their rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed when the police obtained data from Horizon without a warrant. The trial judge had dismissed these arguments, finding that the data were not part of the “biographical core” of the defendants’ personal information, and that they therefore had no reasonable expectation of privacy in them. Further, he ruled that given the constellation of applicable laws and regulations, as well as Horizon’s terms of service, it was reasonable for Horizon to share the data with the police. The Court of Appeal disagreed, finding that the appellants’ Charter rights had been infringed. The decision is interesting because of its careful reading of the rather problematic decision of the Supreme Court of Canada in Gomboc. Nevertheless, although the decision creates important space for privacy rights in the face of ubiquitous data collection and close collaboration between utility companies and the police, the Court of Appeal’s approach is highly contextual and fact-dependent.

A crucial fact in this case is that the police and Horizon had an ongoing relationship when it came to the sharing of customer data. Horizon regularly provided data to the police, sometimes on its own initiative and sometimes at the request of the police. It provided data about suspect residences as well as data about other customers for comparison purposes. Writing for the unanimous court, Justice Doherty noted that until the proceedings in this case commenced, Horizon had never refused a request from the police for information. He found that this established that the police and Horizon were working in tandem; this was important, since it distinguished the situation from one where a company or whistleblower took specific data to the police with concerns that it revealed a crime had been committed.

The Court began its Charter analysis by considering whether the appellants had a reasonable expectation of privacy in the energy consumption data. The earlier Supreme Court of Canada decisions in Plant and Gomboc both dealt with data obtained by police from utility companies without a warrant. In Plant, the Court had found that the data revealed almost nothing about the lifestyle or activities of the accused, leading to the conclusion that there was no reasonable expectation of privacy. In Gomboc, the Court was divided and issued three separate opinions. This led to some dispute as to whether there was a reasonable expectation of privacy in the data. In Orlandis-Habsburgo, the Crown argued that seven out of nine judges in Gomboc had concluded that there was no reasonable expectation of privacy in electricity consumption data. By contrast, the appellants argued that five of the nine judges in Gomboc had found that there was a reasonable expectation of privacy in such data. The trial judge had sided with the Crown, but the Court of Appeal found otherwise. Justice Doherty noted that all of the judges in Gomboc considered the same factors in assessing the reasonable expectation of privacy: “the nature of the information obtained by the police, the place from which the information was obtained, and the relationship between the customer/accused and the service provider.” (at para 58) He found that seven of the judges in Gomboc had decided the reasonable expectation of privacy issue on the basis of the relationship between the accused and the utility company. At the same time, five of the justices had found that the data was of a kind that had the potential to reveal personal activities taking place in the home. He noted that: “In coming to that conclusion, the five judges looked beyond the data itself to the reasonable inferences available from the data and what those inferences could say about activities within the home.” (at para 66) He noted that this was the approach taken by the unanimous Supreme Court in R. v. Spencer, a decision handed down after the trial judge had reached his decision in Orlandis-Habsburgo. He also observed that the relationship between the customer and the service provider in Orlandis-Habsburgo was different in significant respects from that in Gomboc, allowing the two cases to be distinguished. In Gomboc, a provincial regulation provided that information from utility companies could be shared with the police unless customers explicitly requested to opt-out of such information sharing. No such regulation existed in this case.

Justice Doherty adopted the four criteria set out in Spencer for assessing the reasonable expectation of privacy. There are: “(1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.” (Spencer, at para 18) On the issue of the subject matter of the search, the Court found that the energy consumption data included “both the raw data and the inferences that can be drawn from that data about the activity in the residence.” (at para 75) Because the data and inferences were about a person’s home, the Court found that this factor favoured a finding of a reasonable expectation of privacy. With respect to the interest of the appellants in the data, the Court found that they had no exclusive rights to these data – the energy company had a right to use the data for a variety of internal purposes. The Court described these data as being “subject to a complicated and interlocking myriad of contractual, legislative and regulatory provisions” (at para 80), which had the effect of significantly qualifying (but not negating) any expectation of privacy. Justice Doherty found that the appellants had a subjective expectation of privacy with respect to any activities carried out in their home, and he also found that this expectation of privacy was objectively reasonable. In this respect, he noted that although there were different documents in place that related to the extent to which Horizon could share data with the police, “one must bear in mind that none are the product of a negotiated bargain between Horizon and its customers.” (at para 84) The field of energy provision is highly regulated, and the court noted that “[t]he provisions in the documents to which the customers are a party, permitting Horizon to disclose data to the police, cannot be viewed as a ‘consent’ by the customer, amounting to a waiver of any s. 8 claim the customer might have in the information.” (at para 84) That being said, the Court also cautioned against taking any of the terms of the documents to mean that there was a reasonable expectation of privacy. Justice Doherty noted that “The ultimate question is not the scope of disclosure of personal information contemplated by the terms of the documents, but rather what the community should legitimately expect in terms of personal privacy in the circumstances.” (at para 85) He therefore described the terms of these documents as relevant, but not determinative.

The documents at issue included terms imposed on the utility by the Ontario Energy Board. Under these terms, Horizon is barred from using customer information for purposes other than those for which it was obtained without the customer’s consent. While there is an exception to the consent requirement where the information is “required to be disclosed. . . for law enforcement purposes”, Justice Doherty noted that in this case the police had, at most, requested disclosure – at no point was the information required to be disclosed. He found that the terms of the licence distinguished this case from Gomboc and supported a finding of a reasonable expectation of privacy in the data.

The Court also looked at the Distribution System Code (DSC) which permits disclosure to police of “possible unauthorized energy use”. However, Justice Doherty noted that this term was not defined, and no information was provided in the document as to when it was appropriate to contact police. He found this provision unhelpful in assessing the reasonable expectation of privacy. The Court found the Conditions of Service to be similarly unhelpful. By contrast, the privacy policy provided that the company would protect its customers’ personal information, and explicitly set out the circumstances in which it might disclose information to third parties. One of these was a provision for disclosure “to personas as permitted or required by Applicable Law”. Those applicable laws included the provincial Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) Justice Doherty looked to the Supreme Court of Canada’s interpretation of PIPEDA in Spencer. He found that the exception in PIPEDA that permitted disclosure of information to law enforcement could only occur with “lawful authority” and that “[t]he informal information-sharing arrangement between Horizon and the police described in the evidence is inconsistent with both the terms of Horizon’s licence and the disclosure provisions in PIPEDA.” (at para 104) He also found that it did not amount to “lawful authority” for a request for information.

The respondents argued that s. 32(g) of MFIPPA provided a basis for disclosure. This provision permits disclosures to law enforcement agencies without referencing any need for “lawful authority”. However, Justice Doherty noted that, like PIPEDA, MFIPPA has as its primary goal the protection of personal information. He stated: “That purpose cannot be entirely negated by an overly broad and literal reading of the provisions that create exceptions to the confidentiality requirement.” (at para 106) He noted that while s. 32(g) provides an entity with discretion to release information in appropriate circumstances, the exercise of this discretion requires “an independent and informed judgment” (at para 107) in relation to a specific request for information. The provision could not support the kind of informal, ongoing data-sharing relationship that existed between Horizon and the police. Similarly, the court found that the disclosure could not be justified under the exception in s. 7(3)(d)(i) of PIPEDA that allowed a company to disclose information where it had “reasonable grounds to believe that the information relates to . . . a contravention of the laws of Canada”. While Justice Doherty conceded that such disclosures might be possible, in the circumstances, Horizon “did not make any independent decision to disclose information based on its conclusion that reasonable grounds existed to believe that the appellants were engaged in criminal activity.” (at para 110) It simply passed along data that it thought might be of interest to the police.

Although the Court of Appeal concluded that there was a reasonable expectation of privacy in the energy consumption data, and that the search was unreasonable, it ultimately found that the admission of the evidence would not bring the administration of justice into disrepute. As a result, the convictions were upheld. The court cited, in support of its conclusion that the trial judge had reached his decision prior to the Supreme Court of Canada’s decision in Spencer, and that the error in the judge’s approach was only evident after reading Spencer.

Skirmishes over right to freely access and use “publicly available” data hosted by internet platform companies have led to an interesting decision from the U.S. District Court from the Northern District of California. The decision is on a motion for an interlocutory injunction, so it does not decide the merits of the competing claims. Nevertheless, it provides insight into a set of issues that are likely only to increase in importance as these rich troves of data are mined by competitors, opportunistic businesses, big data giants, researchers and civil society actors.

The parties in hiQ Labs Inc. v LinkedIn Corp. are companies whose business models are based upon career-related personal information provided by professionals. LinkedIn offers a professional networking platform to over 500 million users, and it is easily the leading company in its space. hiQ, for its part, is a data analytics company with two main products aimed at enterprises. The first is “Keeper”, a product which informs corporations about which of their employees are at greatest risk of being poached by other companies. The second is “Skill Mapper” which provides businesses with summaries of the skills of their employees. For both of its products hiQ relies on data that it scrapes from LinkedIn’s publicly accessible web pages.

Data featured on LinkedIn’s site are provided by users who create accounts and populate their profiles with a broad range of information about their background and skills. LinkedIn members have some control over the extent to which their information will be shared by others. They can choose to limit access to their profile information to only their close contacts or to an expanded list of contacts. Alternatively, they can provide access to all other members of LinkedIn. They also have the option to make their profiles entirely public. These public profiles are searchable by search engines such as Google. It is the data in the fully public profiles that is scraped and used by hiQ.

hiQ is not the only company that scrapes data from LinkedIn as part of an independent business model. In fact, LinkedIn has only recently attempted to take legal action against a large number of users of its data. hiQ was just one of many companies that received a cease and desist letter from LinkedIn. Because being cut off from the LinkedIn data would effectively decimate its business, hiQ responded by seeking a declaration from the California court that its activities were legal. The recent decision from the court is in relation to hiQ’s request for an interlocutory injunction that will allow it to continue to access the LinkedIn data pending resolution of the substantive legal issues raised by both sides.

hiQ argued that in moving against its data scraping activities, LinkedIn engaged in unfair business practices, and violated its free speech rights under the California constitution. LinkedIn, for its part, argued that hiQ’s data scraping activities violated the Computer Fraud and Abuse Act (CFAA), as well as the digital locks provisions Digital Millennium Copyright Act (DMCA) (although these latter claims do not feature in the decision on the interlocutory injunction).

Like other platform companies, access to and use of LinkedIn’s site is governed by website Terms of Service (TOS). These TOS prohibit data scraping. When LinkedIn demanded that hiQ cease scraping data from its site, it also implemented technological protection measures to prevent access by hiQ to its data. LinkedIn’s claims under the CFAA and the DMCA are based largely on the circumvention of these technological barriers by hiQ.

The court ultimately granted the injunction barring LinkedIn from limiting hiQ’s access to its publicly available data pending the resolution of the issues in the case. In doing so, it expressed its doubts that the CFAA applied to hiQ’s activity, noting that if it did, it would “profoundly impact open access to the Internet.” It also found that attempts by LinkedIn to block hiQ’s access might be in breach of state law as anti-competitive behavior. In reaching its decision, the court had some interesting things to say about the importance of access to publicly accessible data, and the privacy rights of those who provided the data. These issues are highlighted in the discussion below.

In deciding whether to grant an interlocutory injunction, a court must assess both the possibility of irreparable harm and the balance of convenience as between the parties. In this case, the court found that denying hiQ access to LinkedIn data would essentially put it out of business – causing it irreparable harm. LinkedIn argued that it was imperative that it be allowed to protect its data because of its users’ privacy interests. While hiQ only scraped data from public profiles, LinkedIn argued that even those users with public profiles had privacy interests. I noted that 50 million of its users with public profiles had selected its “Do Not Broadcast” feature which prevents profile updates from being broadcast to a user’s connections. LinkedIn described this as a privacy feature that would essentially be circumvented by routine data scraping. The court was not convinced. In the first place, it found that there might be many reasons besides privacy concerns that motivated users to choose “do not broadcast”. It gave as an example the concern by users that their connections not be spammed by endless notifications. The Court also noted that LinkedIn had its own service for professional recruiters that kept them apprised of updates even from users who had implemented “Do Not Broadcast”. The court dismissed arguments by LinkedIn that this was different because users had consented to such sharing in their privacy policy. The court stated: “It is unlikely, however, that most users’ actual privacy expectations are shaped by the fine print of a privacy policy buried in the User Agreement that likely few, if any, users have actually read.” [Emphasis in original] This is interesting, because the court discounts the relevance of a privacy policy in informing users’ expectations of privacy. Essentially, the court finds that users who make their profiles public have no real expectation of privacy in the information. LinkedIn could therefore not rely on its users’ privacy interests to justify its actions.

In assessing whether the parties raised serious questions going to the merits of the case, the court considered LinkedIn’s arguments about the CFAA. The CFAA essentially criminalizes intentional access to a computer without authorization, or in a way that exceeds the authorization provided, with the result that information is obtained. The question, therefore, was whether hiQ’s continued access to the LinkedIn site after LinkedIn expressly revoked any permission and tried to bar its access, was a violation of the CFAA. The court dismissed the cases cited by LinkedIn in support of its position, noting that these cases involved unauthorized access to password protected sites as opposed to accessing publicly available information.

The court observed that the CFAA was enacted largely to deal with the problem of computer hacking. It noted that if the application of the law was extended to publicly accessible websites it would greatly expand the scope of the legislation with serious consequences. The court noted that this would mean that “merely viewing a website in contravention of a unilateral directive from a private company would be a crime.” [Emphasis in original] It went on to note that “The potential for such exercise of power over access to publicly viewable information by a private entity weaponized by the potential of criminal sanctions is deeply concerning.” The court placed great emphasis on the importance of an open internet. It noted that “LinkedIn, here, essentially seeks to prohibit hiQ from viewing a sign publicly visible to all”. It clearly preferred an interpretation of the CFAA that would be limited to unauthorized access to a computer system through some form of “authentication gateway”.

The court also found that hiQ raised serious questions that LinkedIn’s behavior might fall afoul of competition laws in California. It noted that LinkedIn is in a dominant position in the field of professional networking, and that it might be leveraging its position to get a “competitively unjustified advantage in a different market.” It also accepted that it was possible that LinkedIn was denying its competitors access to an essential facility that it controls.

The court was not convinced by hiQ’s arguments that the technological barriers erected by LinkedIn violated the free speech guarantees in the California Constitution. Nevertheless, it found that on balance the public interest favoured the granting of the injunction to hiQ pending the outcome of litigation on the merits.

This dispute is extremely interesting and worth following. There are a growing number of platforms that host vast stores of publicly accessible data, and these data are often relied upon by upstart businesses (as well as established big data companies, researchers, and civil society) for a broad range of purposes. The extent to which a platform company can control its publicly accessible data is an important one, and one which, as the California court points out, will have important public policy ramifications. The related privacy issues – where the data is also personal information – are also important and interesting. These latter issues may be treated differently in different jurisdictions depending upon the applicable data protection laws.

In early July 2017 I attended an excellent workshop hosted by researchers at the Centre for Information Technology, Society and Law at the University of Zurich. The objective of the workshop was to bring a group of academic experts together to discuss data ownership rights.

It is perhaps not surprising that the issue of ownership rights in data is bubbling to the surface as we move further into the evolving big data environment. Data have been described as the new “oil” of the information society. They have a tremendous value and are strongly linked to innovation. One of the ways in which industrialized nations have nurtured innovation has been through the creation of intangible property rights such as intellectual property rights. Data ownership rights flow from that same industrial era mind set. However, it is far from clear that this paradigm is a good fit for data and data-related innovation.

The concept of a data ownership right was raised in the EU in the European Data Market Study, Second Interim Report, June 2016. At page 146, it states:

In fact, the way data are made available and the extent to which data are flowing across sectors and organizations, play a fundamental role in sustaining and developing the emergence of a European data-driven economy. In defining and specifying the rights to create, edit, modify, share and restrict access to data, data ownership becomes a pivotal factor affecting a growing number of potential data users and an increasing range of data-related activities.

One might perhaps be forgiven for thinking that there are already data ownership rights; for example, terms of service for websites frequently state that the company behind the website “owns” its data. Canada’s federal government even got its knuckles rapped by the Federal Court of Appeal for making a similar copyright-based claim in one of its data licences (see my post on this decision here). And, while the law of confidential information could be argued to provide a kind of property right in data or information, in reality what is protected by this body of law is the confidentiality of the information. Once confidentiality is lost, it is clear that there is no underlying ‘property’ right in the data.

Policy makers have long been wary of extending IP rights to data – and for some very good reasons. Copyright law, for example, does not protect “facts”, viewing them instead as the building blocks for creativity and expression, and therefore part of the public domain. Of course, copyright law does protect the original selection and arrangement that goes into creating a compilation of facts (i.e. a data set). How extensive this protection ultimately is depends on what a court sees as the taking of a substantial part of that selection or arrangement. It is this protection for compilations of data that no doubt supports those Terms-of-Service claims to ownership of data mentioned above, but the scope and extent of copyright protection in such circumstances is nevertheless limited and uncertain. In the EU, database rights have provided a broader protection for databases, but it still, fundamentally, is not a protection for the data that make up the database.

It is difficult to see where the interest in a data ownership right is coming from. No clear or pressing need to enhance the protection available for data has been identified. Data ownership rights might be more likely to create confusion and uncertainty – and to increase transaction costs and slow innovation – than to improve the current situation. It would be difficult – and hugely problematic – even to begin to try to identify the ‘owners’ of rights in data and to manage the potential competing interests. And while there are undoubtedly issues around the fairness of particular uses of data, or the legitimacy of means used to acquire data, existing laws already offer a range of recourses and remedies that may be applicable in any given case.

The brief summary of our meetings on data ownership is now publicly available, and it addresses these and many other issues relating to data ownership rights. Our conclusions – that there is no evident need for a new data ownership right and that it would be impossibly difficult to define or constrain – offer a caution to those who regard property rights as a panacea in marketplaces of all kinds.

The Supreme Court of Canada has just granted leave to appeal a decision of the British Columbia Court of Appeal in a case involving evidentiary issues in the province’s law suit to recover health care costs from the tobacco industry. The law suit was brought under the Tobacco Damages and Health Care Costs Recovery Act – a law passed specifically for the purpose of recovering health care costs from the industry. The case raises interesting issues regarding the balance between privacy rights and fairness in litigation; it also touches on issues or re-identification risk in aggregate health care data.

Under the B.C. statute, the province has two options for recovering health care costs. It can recover actual costs for particular identified individuals, or it can recover costs on an aggregate basis “for a population of insured persons as a result of exposure to a type of tobacco product.” (s. 2(1)) The province chose the second option. Under s. 2(5) of the Act, if this route is chosen, the province is not required to identify specific individuals or to establish tobacco-related illnesses with respect to those individuals. Further, the health records of specific individuals need not be provided as part of the litigation. However, if aggregate data is relied upon, the court retains the right to “order discovery of a statistically meaningful sample” of the records, and can issue “directions concerning the nature, level of detail and type of information to be disclosed.” The court must nevertheless ensure that the identities of the specific individuals to whom the data pertain are not disclosed.

The province generated aggregate statistical data regarding costs from its databases of health care services provided to insured persons, and indicated its intention to rely upon this data to prove its case. The defendant tobacco companies sought access to the data relied upon by the province. The province declined to provide the data directly. Instead it arranged for a limited form of access through third party intermediaries, which included Statistics Canada employees. Although some of the defendants accepted this approach, Philip Morris International (PMI) did not. It argued that it was entitled to access the data itself in order to assess the reliability and accuracy of the province’s analyses. Both the court at first instance and the B.C. Court of Appeal ultimately sided with PMI.

The B.C. Information and Privacy Commissioner, who intervened in the appeal before the B.C. Court, argued that “the interpretation of a statutory provision aimed at protecting personal privacy must be approached in light of the importance of protection of privacy as a fundamental value in Canadian society” (at para 25 of the BCCA decision). He maintained that the court should rely upon the Freedom of Information and Protection of Privacy Act (FIPPA) in interpreting the Tobacco Act, and that FIPPA required the terms “personal information” and “record” to be given a broad interpretation. The Court of Appeal summarily rejected this argument, stating that “FIPPA does not limit the information available by law to a party to a proceeding (s. 3(2)) and has no role in the interpretation of s. 2(5)(b).” (at para 25)

The Court of Appeal noted that the Tobacco Act provided two routes for the province to establish damages, one that required consideration of individual health records and one that did not. It chose the second route, which means that in general terms, individual health records are not compellable. The province argued that their decision to choose this route was motivated by a desire to protect the privacy of affected individuals. The Information and Privacy Commissioner argued that a requirement to disclose the aggregate data “has privacy implications for millions of insured persons who are not involved as litigants in the underlying action.” (at para 28) The Court of Appeal noted, however, that the legislation established the ‘playing field’ on which the litigation would take place and that there was no indication that this playing field was not intended to be even. It observed that the legislation does not make privacy a “paramount concern” (at para 31) since it did provide the province with the option to choose a route that would involve consideration of thousands of specific records. Had this route been chosen, the Court noted, “all of the individualized persons’ health care records would be subject to discovery and disclosure notwithstanding any privacy concerns that such disclosure might raise.” (at para 31)

With an aggregate action, the focus is not on individualized health care records. Section 2(5)(b) protects the privacy of individuals if such a route is chosen, and prevents “the aggregate action from becoming bogged down with “individual forms of discovery” in which the defendants could demand voluminous records of thousands or millions of people.” (at para 34) However, the Court noted that in following this route, the province will rely upon the data generated from its databases to establish both causation and damage. This makes the databases highly relevant to the litigation. The Court noted that s. 2(5)(b) “is not intended to block the discovery of the cumulative data contained in the databases, which data is essential to prove causation and damages.” (at para 35)

The Court ruled that the anonymized data on which the province would base its analyses would pose “no realistic threat to personal privacy.” (at para 36) Further, the defendants would be bound not to disclose the information provided to them as part of the litigation-related implied undertaking. The Court also observed that the identity of the specific individuals would be of no interest to the defendants, making it highly unlikely any attempts at re-identification would be made.

The Court of Appeal was particularly concerned about the unfairness that might result if “The only data available to the defendants would be the data the Province offers up on restrictive terms, or the data the Province’s testifying experts eventually choose to rely on in their reports.” (at para 37) It found that fairness required that the databases be produced.

It should be noted that in reaching its decision, the B.C. Court of Appeal declined to follow a judgment from the New Brunswick Supreme Court in a very similar case under nearly identical legislation. In Her Majesty the Queen in Right of the Province of New Brunswick v. Rothmans Inc., the judge had dismissed an application by the defendant tobacco companies for the production of anonymized health care data in the same circumstances. The judge in that case had access to the decision of the B.C. Supreme Court which had ordered production of the databases, but had declined to follow that decision on the basis that the anonymization of the data would not be sufficient to protect privacy, and that the database was “a document containing information that relates to the provision of health care benefits for “particular individuals””. (BCCA decision at para 20) In declining to follow the New Brunswick decision, the B.C. Court of Appeal observed that the New Brunswick judge had relied entirely on the privacy provisions and “did not attempt to read the provisions in the New Brunswick Act as a harmonious whole.” (at para 39) The New Brunswick Court of Appeal declined leave to appeal. With two conflicting decisions from two different provinces, the matter is now heading to the Supreme Court of Canada.

Toronto Star journalist Theresa Boyle has just won an important victory for access to information rights and government transparency – one that is likely to be challenged before the Ontario Court of Appeal. On June 30, 2017, three justices of the Ontario Divisional Court unanimously upheld an adjudicator’s order that the Ministry of Health and Long-Term Care disclose the names, annual billing amounts and fields of medical specialization of the 100 top-billing physicians in Ontario. The application for judicial review of the order was brought by the Ontario Medical Association, along with many of the doctors on the disputed list (the Applicants).

The amount that the Ontario Health Insurance Program (OHIP) pays physicians for services rendered is government information. Under the Freedom of Information and Protection of Privacy Act (FOIPPA), the public has a right of access to government information – subject to specific exceptions that serve competing issues of public interest. One of these is privacy – a government institution can refuse to disclose information if it would reveal personal information. The Ministry had been willing to disclose the top 100 amounts billed to OHIP, but it refused to disclose the names of the doctors or some of the areas of specialization (which might lead to their identification) on the basis that this was the physicians’ personal information. The Adjudicator disagreed and found that the billing information, including the doctors’ names, was not personal information. Instead, it identified the physicians in their professional capacity. FOIPPA excludes this sort of information from the definition of personal information.

The Applicants accepted that the physicians were named in the billing records in their professional capacity. However, they argued that when those names were associated with the gross amounts, this revealed “other personal information”. In other words, they argued that the raw billing information did not reflect the business overhead expenses that physicians had to pay from their earnings. As a result, this information, if released, would be misinterpreted by the public as information about their net incomes. They argued that this made converted it into “other personal information relating to the individual” (s. 2(1)(h)). How much doctors bill OHIP should be public information. The idea that the possibility that such information might be misinterpreted could be a justification for refusal to disclose it is paternalistic. It also has the potential to stifle access to information. The argument deserved the swift rejection it received from the court.

The Applicants also argued that the adjudicator erred by not following earlier decisions of the Office of the Information and Privacy Commissioner (OIPC) that had found that the gross billing amounts associated with physician names constituted personal information. Adjudicator John Higgins ruled that “Payments that are subject to deductions for business expenses are clearly business information.” (at para 18) The Court observed that the adjudicator was not bound to follow earlier OIPC decisions. Further, the issue of consistency could be looked at in two ways. As the adjudicator himself had noted, the OIPC had regularly treated information about the income of non-medical professionals as non-personal information subject to disclosure under the FOIPPA; but for some reasons had treated physician-related information differently. Thus, while one could argue that the adjudicator’s decision was inconsistent with earlier decisions about physician billing information, it was entirely consistent with decisions about monies paid by government to other professionals. The Court found no fault with the adjudicator’s approach.

The Applicants had also argued that Ms Boyle “had failed to establish a pressing need for the information or how providing it to her would advance the objective of transparency in government.” (para 31). The court gave this argument the treatment it deserved – they smacked it down. Justice Nordheimer observed that applicants under the FOIPPA are not required to provide reasons why they seek information. Rather, the legislation requires that information of this kind “is to be provided unless a privacy exception is demonstrated.” (at para 32) Justice Nordheimer went on to note that under access to information legislation, “the public is entitled to information in the possession of their governments so that the public may, among other things, hold their governments accountable.” He stated that “the proper question to be asked in this context, therefore, is not “why do you need it?” but rather is “why should you not have it.”” (at para 34).

This decision of the Court is to be applauded for making such short work of arguments that contained little of the public interest and a great deal of private interest. Transparency within a publicly-funded health care system is essential to accountability. Kudos to Theresa Boyle and the Toronto Star for pushing this matter forward. The legal costs of $50,000 awarded to them make it clear that transparency and accountability often do not come cheaply or without significant effort. And those costs continue to mount as the issues must now be hammered out again before the Ontario Court of Appeal.

Bill C-58, the government’s response to years of calls for reform of Canada’s badly outdated Access to Information Act has been criticized for falling far short of what is needed and from what was promised during the last election campaign. I share this concern. However, this blog post focuses on a somewhat different issue raised by Bill C-58 – the new relationship it will create around privacy as between the Offices of the Information Commissioner and the Privacy Commissioner of Canada.

While Canadian provinces combine access to information and the protection of personal information in the hands of government under a single statute and a single commissioner, the federal government has kept these functions separate. As a result, there is a federal Information Commissioner charged with administering the Access to Information Act and a federal Privacy Commissioner charged with administering the Privacy Act. In 2001, the Privacy Commissioner was also given the task of overseeing Canada’s private sector data protection statute, the Personal Information Protection and Electronic Documents Act (PIPEDA). Certainly at the federal level it makes sense to separate the two regimes. While there is a close relationship between access and privacy (citizens have a right of access to their personal information in the hands of government, for example; and access rights are limited by the protection of the personal information of third parties), access to information and the protection of privacy have important – and sometimes conflicting – differences in their overall objectives. The reality is, as well, that both bring with them substantial and growing workloads, particularly at the federal level. Just as the role of the Privacy Commissioner has expanded with the addition of new responsibilities under PIPEDA, with the rapid advance of information technologies, and with new challenges at in relation to the actions of law enforcement and national security officials, so too has the Information Commissioner’s role been impacted by technology, and by the growing movement towards open government and open data.

In spite of these different spheres of activity, there remain points of intersection between access and privacy. These points of intersection are significant enough that changes to the role of one Commissioner may have implications for the other. For example, a government institution under the ATIA can refuse to disclose records if doing so would reveal third party personal information. The Information Commissioner, fielding a complaint about such a refusal, will consider whether the information at issue is personal information and whether it should be disclosed. The federal Privacy Commissioner, dealing with complaints regarding the mishandling of personal information, must also determine what is or is not personal information.

This overlap is poised to be affected by proposed changes to the ATIA. First, Bill C-58 will make the definition of “personal information” in the ATIA match that in the Privacy Act. Second – and significantly – the Bill will give the Information Commissioner order-making powers. This means that the Information Commissioner can rule on whether information in the hands of a government institution is or is not personal information. The decision will be binding and enforceable if it is not challenged. The Privacy Commissioner currently does not have order-making powers (these are on the wish-list for Privacy Act reform). Ironically, then, this means that the Information Commissioner will be in a position to make binding orders regarding what constitutes personal information in the hands of government whereas the Privacy Commissioner cannot. Even if the Privacy Commissioner eventually gets such powers, there will still be the potential for conflicting decisions/interpretations about how the definition of personal information should be applied to particular types of information.

No doubt in recognition of the potential for conflict in the short and longer term, Bill C-58 provides for the Information Commissioner to consult with the Privacy Commissioner. The proposed new section 36.2 reads:

36.‍2 If the Information Commissioner intends to make an order requiring the head of a government institution to disclose a record or a part of a record that the head of the institution refuses to disclose under subsection 19(1), the Information Commissioner may consult the Privacy Commissioner and may, in the course of the consultation, disclose to him or her personal information. [my emphasis]

In theory then, the Information Commissioner should touch base with the Privacy Commissioner before making orders regarding what is or is not personal information, or perhaps even whether certain personal information is subject to disclosure. It is worth noting, however, that the new provision uses the verb “may”, rather than “must”. Neither consultation nor consensus is mandatory.

Bill C-58 anticipates potential problems. A revised section 37(2) requires the Information Commissioner to give notice to the Privacy Commissioner before any order is made regarding the disclosure of personal information. Section 41(4) then provides:

41(4) If neither the person who made the complaint nor the head of the institution makes an application under this section within the period for doing so, the Privacy Commissioner, if he or she receives a report under subsection 37(2), may, within 10 business days after the expiry of the period referred to in subsection (1), apply to the Court for a review of any matter in relation to the disclosure of a record that might contain personal information and that is the subject of the complaint in respect of which the report is made.

Thus, if the Privacy Commissioner disagrees with a decision of the Information Commissioner regarding what constitutes personal information or whether it should be released, he can apply to a court to have the dispute resolved before a final order is made by the Information Commissioner. Note that this can happen even if the applicant and the government institution are satisfied with the Commissioner’s proposed resolution.

It will be interesting to see whether the Privacy Commissioner will get order-making powers if and when the Privacy Act is reformed. This seems likely. What will be even more interesting will be whether any decision by the Privacy Commissioner about what constitutes “personal information” will similarly be open to challenge by the Information Commissioner, with the outcome to be settled by the Federal Court. This too seems likely. In the provinces, decisions about personal information for access and privacy purposes are made by a single Commissioner. The best way to achieve consensus as to the meaning of “personal information” at the federal level with two different Commissioners with different mandates, will be to have any conflicts referred to the courts. This will add a layer of delay in any case where disputes arise, although in theory at least, with open lines of communication between the two Commissioners, such disputes may be few and far between. Nevertheless, there may be a disadvantage in pushing controversies over the definition of “personal information” directly to the courts which lack the same experience and expertise as the two Commissioners in an increasingly complex data landscape. True, the courts already have the last word when it comes to interpreting the definitions of personal information in either statute. But those interpretations have, to date, been confined in impact to one or the other of the statutes and understood in the context of the particular legislative goals underlying the specific statute at issue. The impact of these changes will interesting to monitor.

Note that for ease of reference the different provisions of the bills/laws discussed here are reproduced at the end of this post.

The Liberal government, which had promised during the last election campaign to reform Canada’s outdated Access to Information Act (ATIA) has tabled its reforms in Bill C-58. First reviews of the bill, by key users of the ATIA such as academics and journalists have been highly critical of the many ways in which the proposed reforms fall short of what was promised. While acknowledging the importance and salience of these critiques, this post will focus on two very specific amendments in this Bill that are most welcome.

Government departments and agencies subject to the ATIA have long been able to refuse to disclose records covered by solicitor-client privilege. This is an important exception. As the Supreme Court of Canada stated in Blood Tribe, “Solicitor-client privilege is fundamental to the proper functioning of our legal system.” (at para 9). The court noted that the privilege permits a free flow of legal advice between lawyer and client, and stated that without solicitor-client privilege, “access to justice and the quality of justice in this country would be severely compromised.” (para 9) It is not surprising, therefore that documents covered by solicitor-client privilege would not be disclosable under the ATIA. In the same vein, the right to access one’s personal information under the federal Privacy Act, or the Personal Information Protection and Electronic Documents Act (PIPEDA), is similarly limited – access cannot be had to records containing personal information that are subject to solicitor-client privilege.

While this is understandable, the problem has long been that there has been no proper oversight of assertions of solicitor-client privilege by record-holders. The courts have treated the privilege as so absolute, that only the most explicit statutory language will permit a Commissioner (whether the Information Commissioner or a Privacy Commissioner) to review such documents in order to determine whether the claimed privilege is actually justified. In Blood Tribe, the Supreme Court of Canada found that the rather open-ended language in PIPEDA did not meet the test, and as a result the federal Privacy Commissioner could not review claims of solicitor client privilege in records containing personal information under that statute. Much clearer language was needed.

While the outcome in Blood Tribe is fair enough, a 2016 decision by the Supreme Court of Canada seemed to move from protecting solicitor client privilege to fetishizing it. In Alberta (Information and Privacy Commissioner) v. University of Calgary, the Supreme Court of Canada considered wording in Alberta’s Freedom of Information and Protection of Privacy Act that was quite a bit more explicit than that in PIPEDA, and that appeared quite sufficient to give Alberta’s Commissioner the power to review claims of solicitor-client privilege in government records sought through access to information requests. Yet the majority of the Court determined that Blood Tribe dictated that only the clearest statutory language could derogate from the protection of solicitor-client privilege. They took the position that solicitor-client privilege was no mere privilege of the law of evidence. It arose in circumstances outside the court room, and had the character of “an important civil and legal right and a principle of fundamental justice in Canadian law.” (at para 41) Because of this, the majority ruled that the wording of the statute, which allowed the Commissioner to access records “despite . . . any privilege of the law of evidence” (s. 56(3) was “not sufficiently clear, explicit and unequivocal to evince legislative intent to set aside solicitor-client privilege.” (at para 44) It should be noted that Justice Cromwell wrote a separate opinion in University of Calgary making it clear that he strongly disagreed with the interpretation of the majority, and stating that in his view the language of the statute was perfectly clear and gave the necessary powers to the Commissioner. The majority decision in University of Calgary was so surprising that Ontario’s Information and Privacy Commissioner in his Annual Report released in mid-June 2017, asked the Ontario government to amend very similar language in Ontario’s Freedom of Information and Protection of Privacy Act so as to make it crystal clear that the Ontario Commissioner has the power to review claims of solicitor client privilege in documents being withheld by government departments and agencies.

If passed, Bill C-58 will amend section 36(2) of the ATIA to provide in language that even the most punctilious judge would find hard to ignore, that the Information Commissioner can review records being withheld on the basis of solicitor-client privilege in order to determine whether such privilege is properly claimed. Notably, the bill will also amend the Privacy Act to add similar language giving the Privacy Commissioner the power to review records withheld under claims of solicitor client privilege. Both sets of amendments make it clear that this review does not constitute a waiver of those privileges or of professional secrecy. It is a necessary compromise to ensure a proper balancing of interests. These changes, at least, should be welcome.

Statutory language discussed in the above post:

PIPEDA (interpreted in Blood Tribe and found to be too vague to support review by the Commissioner):

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

[. . . ]

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible

Access to Information Act (currently):

36 (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Information Commissioner may, during the investigation of any complaint under this Act, examine any record to which this Act applies that is under the control of a government institution, and no such record may be withheld from the Commissioner on any grounds.

Privacy Act (currently):

34 (2)  Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

Freedom of Information and Protection of Privacy Act (Alberta) (at issue in University of Calgary and found to be insufficient):

56(3) Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection (1) or (2).

Ontario’s Freedom of Information and Protection of Privacy Act:

52 (4) In an inquiry, the Commissioner may require to be produced to the Commissioner and may examine any record that is in the custody or under the control of an institution, despite Parts II and III of this Act or any other Act or privilege, and may enter and inspect any premises occupied by an institution for the purposes of the investigation.  R.S.O. 1990, c. F.31, s. 52 (4).

Proposed Amendment to the Access to Information Act in Bill C-58:

36 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Information Commissioner may, during the investigation of any complaint under the Part, examine any record to which this Part applies that is under the control of a government institution, and not such record may be withheld from the Commissioner on any grounds.

Proposed Amendment to the Privacy Act in Bill C-58:

34 (2) Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, and subject to subsection (2.1), the Privacy Commissioner may, during the investigation of any complaint under the Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen’s Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds.

The Supreme Court of the United States (SCOTUS) has struck down a provision of that country’s trademark statute, the Lanham Act, for violating the constitutionally guaranteed freedom of speech. The provision in question is the “disparagement” clause, which barred the registration of any trademark “which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” (§1052(a)).

The long-simmering issue of the constitutionality of this provision came to a head in two recent high profile cases, only one of which was before SCOTUS. The case heard by SCOTUS was Matal v. Tam, and it involved the Asian dance band The Slants, which had unsuccessfully sought to register their name as a trademark. The band’s name uses a common racial slur, but their objective in registering the name was “to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity.” (at p. 7) The other case, which had been put on hold by an appellate court pending the decision of SCOTUS in Matal v. Tam, involved the infamous name of the Washington D.C.’s football team, the Redskins. The Trademark Trial and Appeal Board had ruled that this name was disparaging of Native Americans, and ordered it struck from the register. This decision had been upheld by a court in review, and was under appeal. As a result of the decision in Tam, this name will undoubtedly be allowed to stand.

In a nutshell, a unanimous SCOTUS ruled that the disparagement clause prohibited certain forms of speech, and confirmed that “[s]peech may not be banned on the ground that it expresses ideas that offend.” (pp. 1-2) The court easily rejected a series of arguments by the U.S. government to the effect that trademarks were government and not private speech; that trademarks were a form of government subsidy; or that trademark registration was a kind of government program. It came back to the view that the case was simply a matter of “viewpoint discrimination” – in other words, that some speech was being banned by government because of the point of view that it expressed. Justice Alito, writing the majority opinion, firmly stated that a government attempt to prevent the expression of ideas that offend “strikes at the heart of the First Amendment.” (at p. 25) He noted that the clause was so broadly worded that it prohibited disparagement on any basis, suggesting that it could be applied to trademarks such as “Down with racists” or “Down with sexists” (not, of course, that this has ever happened). He characterized it as “not an anti-discrimination clause; it is a happy-talk clause”. (at p. 25) Justice Alito noted that as drafted, the “clause protects every person living or dead as well as every institution.” (at para 26) The court found the provision unconstitutional regardless of whether it was characterized as commercial speech (which carries a lower level of scrutiny than, for example, political expression). He wrote: “The commercial market is stacked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates.” (at para 26) He observed that free speech would be endangered if “affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility”.” (at para 26)

This decision ends a long saga involving offensive trademarks in the United States. In the Canadian context, a provision in the Trade-marks Act that effectively prohibits the adoption, use or registration of a trademark that is “scandalous, obscene or immoral” (s. 9(1)(j)) has yet to be properly tested in court or measured against the Canadian Charter of Rights and Freedoms. Given the erratic history of the use of the provision (see my post here), it undoubtedly violates the freedom of expression, and would be difficult to save under section 1 as a reasonable limit, demonstrably justified in a free and democratic society. This raises the question of what other means are available to address offensive speech in trademarks. In the U.S. many have argued that this is an issue for the market to decide; if a mark is sufficiently offensive, consumer repugnance will lead to a failure of the product or service or force the trademark owner to change the mark. Given the long history of sports team names and logos such as those of Washington D.C.’s NFL team and Cleveland’s Major League Baseball team, this is a questionable theory. The disparagement of minority groups is not easily addressed by market forces if the majority is indifferent to or complicit in the offense.

In Canada, the answers may come from outside trademark law. Certainly there are hate speech laws in Canada that might apply to the adoption of highly offensive trademarks. The human rights challenges brought by indigenous activist Douglas Cardinal against Rogers, Major League Baseball and the Cleveland baseball franchise (see my post here) are well worth watching. If these claims eventually succeed, they may provide another route by which some trademarks (at least those associated with the provision of services covered by human rights legislation) may be challenged.

A recent court decision (Assn. for Reformed Political Action Canada v. Ontario) raises some interesting questions about the relationship between the Charter right to freedom of expression and access to information rights.

On June 9, 2017, Justice Labrosse of the Ontario Superior Court of Justice ruled that a statutory exemption to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) violated s. 2(b) of the Canadian Charter of Rights and Freedoms, and could not be justified under s. 1. He issued a suspended declaration of invalidity, giving the province 12 months to repair the offending legislation.

Like other access to information regimes in Canada, Ontario’s FIPPA sets a default rule that citizens have a right of access to information in the hands of government and its agencies and departments. This default rule is subject to a number of exceptions that allow government institutions to refuse to disclose information that would, among other things, violate solicitor client privilege, reveal third party confidential commercial information, or adversely impact privacy rights. When a government institution refuses to release all or some of the requested information on one of these statutory grounds, the requesting party can complain to the Office of the Information and Privacy Commissioner (OIPC), which is authorized to resolve such disputes. That, in a nutshell, is the regime established under FIPPA.

In this case, the applicants challenged a provision of FIPPA that was added to the statute in 2012. Section 65(5.7) provides that “This Act does not apply to records relating to the provision of abortion services.” The Applicants argued that this exception violated their right to freedom of expression under s. 2(b) of the Charter by limiting their right of access to information. In a 2010 decision, the Supreme Court of Canada held that there was no constitutional right of access to information; rather, access was a “derivative” right related to the freedom of expression. A denial of access to information could violate the freedom of expression where access “is a necessary precondition of meaningful expression on the functioning of government.” (at para 30) Justice Labrosse’s decision therefore turns on a conclusion that the denial of access to the statistical data at issue in this case prevents “meaningful expression on the functioning of government.” In this case, Justice Labrosse characterizes the information currently available as “less than 50% of some of the statistical information on a matter of important public interest.”(at para 6).

To be clear, the effect of s. 65(5.7) is not to prohibit the disclosure of information relating to the provision of abortion services. Rather, it simply removes decisions about the disclosure of such information from the statutory scheme. The Ontario government argued that freedom of expression rights were not affected by s. 65(5.7) because hospitals and/or the government could still release such information outside of the statutory scheme. Indeed, the government of Ontario had disclosed statistical information about abortion services to the applicant, and had even argued that because this information had been provided, the application was moot.

Prior to 2012, requests for data relating to the provision of abortion services could be made to government departments or agencies that were in possession of such data. For example, the Ministry of Health would have data about the number of abortions billed to OHIP, and those data could be sought through an access to information request. In responding to requests, the department or agency would ensure that the release of data was not subject to any of the exceptions in the legislation. Any disputes would be dealt with by the OIPC. In 2012, FIPPA was amended so as to include hospitals under the legislative scheme. This meant that the public would be able to make freedom of information requests to hospitals for data about their services. It was at this time that the legislation was amended to add s. 65(5.7). Justice Labrosse noted that the government’s justification for the addition of this exception was “to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of [hospital] patients, health care providers and other staff.” (at para 59). He characterized this as a pressing and substantial objective. He expressed skepticism, however, about the government’s stated secondary objective which was to “allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.” (at para 59). He noted that there was no policy framework put in place for such disclosures, and that no voluntary disclosures had ever been made.

Justice Labrosse essentially found that the exemption of the application of FIPPA to information about abortion services, which, as argued by the government, leaves hospitals and other government bodies free to disclose this information outside the FIPPA scheme, violates the freedom of expression. It is therefore the failure to ensure a framework for access to information, with all of its balancing exceptions and limitations that presents the constitutional problem. In rejecting the sufficiency of assurances by government that information can be provided outside of FIPPA on a voluntary basis, he noted that “Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario.” (at para 40)

Justice Labrosse also rejected Ontario’s claims that Charter rights were not affected since statistical data was already available from other sources such as the Canadian Institutes for Health Information (CIHI), billing information voluntarily disclosed by the government, and statistical information available in some scholarly research. The government argued that this information was sufficient to allow for an informed public debate. In his view, significant discrepancies between the government data and the CIHI data meant that the CIHI data was not an adequate substitute. He also added that “requiring interested parties to project forward from dated statistical information published in journals” (at para 42) was also not sufficient to allow for meaningful public discussion.

Although Justice Labrosse accepted that the government had a pressing and substantial concern in protecting the safety and security of patients and health care providers, he found that the s. 65(5.7) went too far. He noted that the exception “includes no criteria to allow for disclosure of records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services” (at para 66). The suspended declaration of invalidity means that the government now has 12 months in which to try to craft an exception that better balances their objectives with the public right of access to information.

It is worth comparing the provision struck down in this case with the new exemption in FIPPA for information relating to medically assisted dying. Medically assisted dying is also controversial and the government was clearly concerned about possible privacy and security implications for individuals and institutions. Yet the solution they crafted is much narrower than the broad exemption for information relating to abortion services. A new section 65(11) provides that: “This Act does not apply to identifying information in a record relating to medical assistance in dying.” This exception is only with respect to “identifying information”, rather than with respect to “records” more generally. Section 65(12) defines “identifying information as information “(a) that relates to medical assistance in dying, and (b) that identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility”. This provision may well serve as a model for the government as it crafts a new exception to replace s. 65(5.7).

An interim decision of the Ontario Human Rights Tribunal paves the way for a challenge to the legitimacy of the use of an offensive sports team name and logo during Major League Baseball (MLB) games at Rogers Centre in Toronto. The decision is of particular interest in that it dismisses arguments that the grant of a registered trademark in Canada confers a positive right to use that mark that cannot be interfered with by provincial legislation such as the Ontario Human Rights Code.

The challenge to offensive sports team names and logos is long overdue in Canada. In the United States, after having its own trademark invalidated for disparagement, Washington D.C.’s football team is awaiting the outcome of a U.S. Supreme Court challenge to the constitutionality of the provision of the Lanham Act used to bar the registration of an allegedly offensive trademark in another case. Although Washington’s trademarks are also registered in Canada, their legitimacy has yet to be challenged here. In 2015 Justice Murray Sinclair (now Senator Sinclair), head of the Truth and Reconciliation Commission, called for an end to the appropriation of indigenous names for sports teams and for a cessation of the use of racist names and logos. On the eve of the American League Baseball Championship Series in 2016, architect and activist Douglas Cardinal sought an injunction to prevent the broadcasting of the offensive name and logo of Cleveland’s major league baseball team. He argued that doing so would violate the Canadian Human Rights Act. He was unsuccessful in obtaining the injunction, but his related complaint to the Canadian Human Rights Commission – regarding discrimination in the provision of broadcasting services is ongoing. At the same time, Cardinal launched his complaint before the Ontario Human Rights Tribunal, arguing that when Cleveland’s team plays at Rogers Centre in Toronto, the provision of sports entertainment services (in the form of the games) is carried out in a discriminatory fashion. This is because Cardinal, a baseball fan, is confronted with racism in the form of the team name (the Indians) and logo (a grotesque caricature), particularly on the uniforms of the Cleveland team’s players.

The Cleveland team’s trademarks are registered in Canada. This means that they somehow avoided the prohibition on the registration of trademarks that are “scandalous, obscene or immoral” in section 9(1)(j) of the Trade-marks Act when they were registered in 1988 and 2012 respectively. (For a discussion of scandalous, obscene or immoral marks see my post here). Unsurprisingly, the respondents in this case (Rogers Communications, MLB, and the Cleveland Indians Baseball Company Ltd.) argued that the Ontario Human Rights Code could have no bearing on the use of registered trademarks in Canada. In other words, they maintained that once a trademark has been registered, the owner has a right to use that mark in Canada, and that such use cannot be interfered with by provincial legislation.

Vice-Chair Jo-Anne Pickel made relatively short work of this argument. She found that the Trade-marks Act does not confer a positive right to use a trademark; rather it grants the right to exclusive use of the mark. The distinction is important. The right to exclusive use of a mark protects the trademark owner against the use of an identical or confusing mark by others. But it does not mean that the owner is entitled to use the mark without limitation or restriction. In fact, Pickel noted that restrictions on trademark use are not uncommon; she cited laws restricting the use of tobacco trademarks in advertising as examples of the kind of limitation that can be imposed on the use of trademarks under either federal or provincial legislation. Similarly, a right to use a trademark can be subject to a provincial law of general application such as the Human Rights Code. She brushed aside an argument by MLB that the continued existence of the ‘Edmonton Eskimos’ trademark demonstrated that not all trademark owners are treated the same way under the Human Rights Code. She noted that “The key is that a similar claim could be brought and that it would be treated in the same way as this Application against the Cleveland Team.” Vice-Chair Pickel also noted that an order that would enjoin the use of the team’s name and logo when it played at Rogers’ Centre in Toronto was not the same as an order prohibiting the use of the trademark entirely; the jurisdiction of the tribunal was limited to the scope of application of the Human Rights Code.

Pickel also rejected arguments that the application of the Code in this context would intrude on federal jurisdiction over trademarks. She noted that courts have described the core of the federal power over trademarks as being “to establish a national system for the adoption, use, transfer, and enforcement of rights in respect of registered and un-registered trademarks.” (at para 52). In her view, “the application of the Code to the use of particular trade-marks in the context of baseball games at the Rogers Centre would fall outside this core.” (at para 52). She found that the application of the Code would not frustrate the purposes of the Trade-marks Act, and concluded that nothing in the Constitution deprived the human rights tribunal of jurisdiction over the issue of the legitimacy of the use of the team name and logo during baseball games at Rogers Centre.

The result of this decision is to remove roadblocks to the case moving forward. The adjudicator noted that it would still remain to be determined at the hearing whether baseball games being held at Rogers Centre constitute a service under the Code. Further, it remained to be determined just how each of the three respondents was linked to the delivery of these services for the purposes of the application of the Code.

Because Cardinal is also proceeding with a complaint under the Canadian Human Rights Act (CHRA) relating to the broadcasting of the games (since broadcasting is under federal jurisdiction, it is the CHRA that would apply to those particular services), Pickel expressed concerns about both matters proceeding simultaneously. Because of the considerable overlap in factual and legal issues to be determined, there is a risk that the two tribunals might reach conflicting decisions on key issues of law or fact. She asked the parties to provide her with additional information about the status of the complaint under the CHRA in order to determine whether it would be best to postpone the hearing on the Human Rights Code application until the decision under the CHRA is rendered.

While it is almost certain that nothing will happen quickly as these matters proceed through the notoriously slow human rights tribunal processes, what is important is that something is finally starting to happen around the issue of offensive trademarks for sports teams in Canada. The legal tide is turning against the viability of such marks, creating new pressure for organizations to reconsider the value of clinging to offensive monikers in the name of ‘tradition’.