INFOTECH-NWS 2014-01

Mann's Technology Newsletters

September 2014

— Information & Technology Law Newsletter

J. Fraser Mann & Elisabeth Symons, Co-Editors

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All

rights reserved.

Contents

I. Case Comments

I.1 Decision by Saskatchewan Information and Privacy Commissioner Concerning Unauthorized

Access to Government Database

I.2 Planification Organization Publications Systèms (POPS) Ltée and Posada (Appellants) v. 9054-

8181 Québec Inc., Chapus & Bojoge (Respondents)

I.3 Equustek Solutions Inc. v. Google Inc.

I.4 Leuthold v. Canadian Broadcasting Corporation

I.5 R. v. Spencer: A Warrant is Required When Seeking Subscriber Information

II. Case Digests

II.1 District of Mission: Decision of Office of Information and Privacy Commissioner of British Columbia

II.2 Domains and the Average Internet User: Insurance Corporation of British Columbia v. Stainton

Ventures Ltd.

II.3 Begum v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 2920, 2013

CarswellNat 3534, 2013 FC 824, 2013 CF 824, 231 A.C.W.S. (3d) 783 (F.C.)

II.4 Ministry of Natural Resources (Re), 2014 CanLII 2115, (Information and Privacy Commissioner,

Ontario, Order PO-3292)

II.5 R. v. Strowbridge, 2013 CarswellNfld 334, 2013 NLCA 57, 1061 A.P.R. 144, 109 W.C.B. (2d) 85,

341 Nfld. & P.E.I.R. 144 (N.L. C.A.)

I. — Case Comments

I.1 — Decision by Saskatchewan Information and Privacy Commissioner Concerning

Unauthorized Access to Government Database

By: J. Fraser Mann, Mann Symons LLP

An Investigation Report1 by the Saskatchewan Information and Privacy Commissioner (the "IPC")

provides insight into two issues relating to the improper use and access to a database of personal

information held by a government institution, namely: (i) where responsibility rests for a privacy breach

by an employee of one institution who obtains access to information held by another institution; and (ii)

the measures that a government institution should take upon the occurrence of a privacy breach in

order to address the breach and to prevent a re-occurrence.

Facts

Saskatchewan Government Insurance ("SGI") is a government institution responsible for maintaining a

database of information about drivers for both commercial and non-commercial vehicles. Another

government institution, the Ministry of Highways and Infrastructure ("MHI"), had entered into a data

sharing agreement to allow MHI employees to access information in the SGI database for purposes of

enabling the MHI employees to perform their duties of "commercial vehicle enforcement".

An MHI employee had accessed information about a driver in the SGI database for purposes of

discussing a highway incident that had occurred between the two individuals. When informed of the

privacy breach, SGI issued an apology to the complainant. However, no apology was issued by MHI,

being the institution whose employee had accessed the information. The IPC commenced an

investigation into the breach, to determine what institution was responsible for the breach and what

action should have been taken by that institution.

Responsibility for Privacy Breach

The IPC found that the MHI employee had committed a privacy breach by accessing personal

information in the SGI database for a purpose other than the performance of his duties relating to

commercial vehicle enforcement. This purpose was not in accordance with FIPPA2 which allowed

collection of personal information only for "a purpose that relates to an existing or proposed program or

activity of the government institution".

The IPC found further that the collection was a violation of the data sharing agreement between the

two government institutions. The agreement included an acknowledgement by MHI that information

was being disclosed only for specified business purposes, and provisions requiring MHI to use best

efforts to advise its employees of their obligations and making MHI responsible for the actions of its

employees with respect to any use or disclosure of information received from SGI.

The IPC found that MHI rather than SGI was responsible for the privacy breach, since its employee

collected and used the personal information for an unauthorized purpose.

Did MHI respond appropriately to the privacy breach?

The IPC found that MHI failed to respond appropriately to the privacy breach in several respects, first

by failing to carry out a full assessment of the breach; second, by failing to notify the complainant and

to issue an apology, while allowing another government institution to do so; and third, by failing to

create a comprehensive strategy to mitigate similar privacy breaches from occurring in the future.

With respect to its failure to assess and analyze the breach and associated risk, the IPC noted that

MHI had not put in place adequate safeguards, including capabilities to audit the actions of its

employees to ensure that they view only the information for which they require access in order to fulfil

their job duties.

The IPC also found that MHI failed to conduct further training after the occurrence of the privacy

breach. The IPC noted that regular and ongoing privacy training (and not just one-time training) was

necessary, and that such training should be specific to the employees' duties and should address the

parameters for the viewing of information by employees (particularly as there were limited technical

measures in place to prevent access to any information in the SGI database).

The IPC found further that the institution whose employee had committed the privacy breach should

have assumed responsibility for the breach and issued an apology. It was unclear how a future privacy

breach could be prevented if a different institution assumed responsibility for the breach.

Finally, the IPC found that MHI had failed to take adequate steps to prevent future privacy breaches,

insofar as it was unclear what disciplinary action was taken against the employee who committed the

breach (other than to restrict his duties and suspend his access privileges). MHI also failed to circulate

a directive to employees with a view to preventing further breaches. In addition, without putting in place

auditing capabilities, MHI failed to demonstrate that it had sufficient measures in place to prevent and

detect employee misuse.

Findings and Recommendations

In conclusion, the IPC found that MHI was the institution having primary responsibility for the privacy

breach in this case, that it had failed to adequately respond to and manage the breach and that it

collected information in contravention of FIPPA. Among its recommendations were that:

(i) MHI work with SGI to establish monitoring and auditing capabilities of MHI employees' use of the

SGI database;

(ii) MHI conduct random audits of employees' use of the SGI database on a sustained basis to ensure

information is used in compliance with FIPPA; and

(iii) MHI work with SGI to establish a technical solution to limit the extent to which MHI employees may

access and use personal information in the SGI database.

I.2 — Planification Organization Publications Systèms (POPS) Ltée and Posada (Appellants) v.

9054-8181 Québec Inc., Chapus & Bojoge (Respondents)3

By:J. Fraser Mann

Mann Symons LLP

This decision considered the scope of an implied license, and the rights granted thereunder, with

respect to certain computer software owned by the appellants.

Facts

Certain individuals had contributed to the development of software under the name Ceres, and granted

broad licenses for the use of that software to the corporate appellant (POPS), which was owned by the

individual appellant (Posada). POPS also obtained an assignment from the individual author of the

original program. Posada subsequently became a shareholder of the corporate respondent (IDP) and

POPS ceased operations. In her capacity as employee of IDP, Posada developed various

enhancements to the Ceres software. Various new versions and products derived from Ceres were

also developed by IDP.

After a dispute arose between Posada and other principals of IDP, Posada demanded that IDP cease

using Ceres as well as the other products and versions derived from Ceres.

Federal Court decision4

At trial, Crampton J. found that copyright subsisted in the various products; that POPS was at least

one of the rightful owners of the copyright in those products; that the respondent IDP had at least an

implied license "to use those products"; that the appellants were not entitled to revoke that license; that

IDP had not infringed POPS' copyright and that POPS accordingly had no right to damages, an

accounting for profits or other relief; and that the respondents should be awarded $20,000 on account

of their costs in the proceeding.

The Federal Court of Appeal considered several issues with respect to the findings of the Federal

Court, as follows:

(i) — The scope of the implied license to the applicable products

The appellants claimed that the trial judge had not applied the correct legal principles in determining

the scope of the implied license granted by POPS to IDP. The Court of Appeal accepted the

appellant's arguments that the trial judge was in error in allowing the respondents to obtain access to

the source code and to modify it. Because the trial judge did not indicate in his reason that such

access was a condition of the implied license, the judgment of the trial judge should be varied by

removing the reference to the source code. The assertion by the respondents that this conclusion may

pose difficulties in fixing any bugs in the versions of the software to which they were entitled was no

answer to the fact that neither the trial judge nor the appeal court could award more than was sought in

the proceeding.

On the question of whether the trial judge had erred in law by not applying various common law cases

in determining the terms of the implied license (and particularly a term as to whether the license could

be revoked), the Court found that those cases had not been brought to the attention of the trial judge.

The trial judge had not erred by applying the general rules for interpreting contracts in civil law,

including a rule that once a valid contract is shown to have been concluded, but without evidence of a

common intent with respect to a specific issue, then the Court should adopt an interpretation that can

be reconciled with the rest of the contract and the circumstances in which it was made.

Applying these principles to this case, the appellants had not established the existence of any palpable

or overriding error in the finding of the trial judge. There is no generally applicable rule of law

precluding a non-exclusive license from being non-revocable when the licensee has provided

consideration. The Court was satisfied that in the circumstances of this case, the appellants had no

right to revoke the license, whether the license was revocable for misconduct or fully irrevocable.

The Court of Appeal also found that the trial judge did not make any palpable error in finding that IDP

had provided substantial consideration for the right to use the software; in finding that it was not a

condition of the grant of the license by POPS to IDP that Posada would continue to be involved with

IDP; or by finding that IDP was not guilty of any misconduct with respect to its use of the software

before it received a demand that it cease use of the software.

The Court of Appeal concluded that the trial judge did not commit an error by finding that IDP did not

infringe the appellants' copyright by continuing to use the software without the appellant's consent.

The Court of Appeal also considered whether the trial judge had erred in law by striking a certificate of

registration of copyright that had shown Posada as the sole author and POPS as the sole owner of

certain software and certain lines of code. The Court found that there was sufficient evidence to show

that persons other than those named in the certificate had rights or interests in the software in

question, and accordingly that the trial judge did not err by expunging the registration.

Finally, the Court of Appeal found that the trial judge had not made an error in awarding legal costs in

the amount of $20,000 in favour of the respondents. The respondents were primarily successful in the

proceeding, and the appellants' conduct at all stages had caused the respondents' costs to increase

significantly.

Conclusions

Both the trial division and the Federal Court of Appeal applied strict rules of contract interpretation

under Quebec civil law in determining whether an implied license had been granted and the scope of

the license in this case. By applying such rules, it was found that there was no right on the part of the

licensor to revoke the license as a result of a change in circumstances from those which existed at the

time the license was granted. Specifically, the fact that one of the principals of both the licensor and

the licensee ceased to have a relationship with the licensee did not give rise to a right to revoke the

license. However, it is not clear the same conclusion would have been reached under common law

rules of interpretation, particularly when various common law decisions were not brought to the

attention of the trial judge, and accordingly were not considered by the Court of Appeal in determining

whether the trial judge had committed an error in law.

I.3 — Equustek Solutions Inc. v. Google Inc.5

By: J. Fraser Mann, Mann Symons LLP

This case was an appeal from a judgment of the British Columbia Supreme Court,6 which granted the

plaintiff a worldwide injunction prohibiting Google Inc. from indexing or referencing, in search results on

its search engine, certain specific websites. Google Inc. sought leave to appeal the decision of the

Supreme Court, and a stay of the injunction.

Trial Decision of BC Supreme Court

The underlying action before Madam Justice Fenlon arose based on claims by the plaintiffs that the

defendants conspired to design and manufacture products using the plaintiffs' trade secrets. The

defendants had failed to comply with various court orders prohibiting them from advertising and selling

their products through various websites. Google was not a party to the original action, but complied

with the plaintiff's request to remove specific web pages or URLs from its Google.ca search results,

i.e.: from searches originating from Canada. However, Google Inc. was not prepared to block an entire

category of URLs from searches conducted anywhere in the world.

The trial judge issued an order compelling Google Inc. from allowing access to the specified websites,

based on any searches conducted anywhere in the world. On the question of whether the Court had

territorial competence to issue such an order, Fenlon J. ruled that the injunction application involved an

order for someone to do something in relation to moveable property located in British Columbia; and

that Google Inc. carried on business in British Columbia by selling advertising to BC residents. Since

Google's search and advertising services were linked and its internet search websites were not

passive information sites, once the court had personal jurisdiction over Google Inc., it had jurisdiction

for all purposes.

On the question of whether British Columbia was the appropriate forum of a claim for a worldwide

injunction against Google Inc., Fenlon J. found that the comparative convenience and expense, and

the desirability of avoiding a multiplicity of proceedings, favoured British Columbia as the more

appropriate forum. The trial judge also rejected Google's claim that the court would be powerless to

enforce its order outside of British Columbia. There was no evidence that the granting of the order

would result in the laws of another state being contravened. Although the order would compel Google

Inc. to take certain actions in California, the order did not direct that steps be taken around the world.

The balance of convenience also favoured granting the injunction.

Application for Leave to Appeal

In considering whether to grant leave to appeal the trial court's decision, the Court of Appeal noted that

the order raised profound issues as to the competence of Canadian courts to issue global injunctions

affecting what content users around the world can view on the Internet. It would not be difficult for

Google to establish points at which the judgment would be a departure from established precedent.

The Court also noted that the fact that the order was made against a non-party raises additional

concerns to those that arise in respect of extraterritorial injunctions against parties to the proceeding

who are present in the jurisdiction. The issues on appeal were important not just to the parties but

those engaged in e-commerce generally. Moreover, the injunction represented a final determination of

whether Google was required to block search results on a worldwide basis.

The Court concluded that this was a case involving arguable and complex issues, of importance to the

parties and generally, and therefore leave to appeal should be granted.

Interim Stay of Injunction

The Court also considered Google's request to stay the order blocking searches on all platforms,

pending the outcome of the appeal.

On this issue, the Court found that Google Inc. had failed to establish that it would suffer irreparable

harm if the application for a stay were dismissed. Specifically, there was no evidence that Google

would incur significant costs or that costs of compliance would be irreparable, nor was there evidence

that the inability of customers to find the specific websites in question would harm Google's business

or result in any harm to the public.

The Court also rejected Google's submission that the fact that the order was made in the first place

would have a serious and damaging effect on its business, by opening the flood gates to similar orders

in other jurisdictions, and by causing users to lose trust in the credibility of Google search engines. A

stay would not change the fact that the original court found that it had jurisdiction to make the order in

the first place. The stay would only serve to avoid the irreparable harm in the manner alleged by

Google if Google used the stay as a basis for assuring its customers that the original order would not

stand on appeal. A stay should not be regarded as an expression by the Appeal Court of its opinion

with respect to the prospect of success on appeal. As a matter of principle, it should not give any

weight to the argument that Google's reputation would suffer if it acts in accordance with the rule of

law. Google's proper course of action was to appeal a decision that it believes would have an adverse

impact on its clients, thereby defending its business and its clients' interests.

Conclusions

The decision of the British Columbia Supreme Court prohibiting Google Inc. from including certain

websites in any searches conducted from anywhere in the world received wide attention. Google has

taken the position that the injunction will seriously affect its business, by opening the possibility that a

court in one jurisdiction may issue an order restraining activities on the Internet anywhere in the world.

However, the decision should be understood in the context in which the original injunction was issued,

which involved a limited number of websites operated by defendants that had breached court orders

for the protection of the plaintiffs' intellectual property rights. Moreover, both the plaintiffs and the

defendants in the original proceeding and Google itself were carrying on business in the jurisdiction in

which the injunction was issued. While the decision has limited precedential value even if it is

eventually allowed to stand, the upcoming appellate court decision should provide guidance to parties

concerned about the extent to which the courts of a certain jurisdiction may impose limits on activities

occurring anywhere on the Internet.

I.4 — Leuthold v. Canadian Broadcasting Corporation

By: Elisabeth Symons, Mann Symons LLP

Background

The Canadian Broadcasting Corporation (the "CBC") included five photographs taken by Catherine

Leuthold in a documentary. The documentary was aired by the CBC (on its flagship and its Newsworld

networks) prior to the negotiations for the necessary rights being concluded. Nonetheless, Leuthold

provided a limited consent to the CBC on March 19, 2002. A more formal license to use the images

once "for one broadcast on CBC's Network & Regional TV stations" was granted by Leuthold to the

CBC. The negotiations had proven difficult, so the CBC decided to remove Leuthold's images from the

documentary for future broadcasts, but an error occurred. The version of the documentary that

included the images was broadcast again in 2003 and 2004. Leuthold sued, claiming $22,000,000 in

damages.

The CBC admitted to copyright infringement in relation to six broadcasts, but three related issues

arose relating to the interpretation of the license to use the images "for one broadcast on CBC's

Network & Regional TV stations". They are: (i) did the license allow the CBC to broadcast the

documentary on its Newsworld network as well as its flagship network; (ii) did the license allow the

CBC to broadcast the documentary only once, or once in each time zone; and (iii) should each

retransmission that occurred between the CBC and its viewing audience be treated as a separate

infringement? The quantum of damages was also in question at trial.

Newsworld

At trial, the Trial Judge found that the license granted to the CBC allowed for broadcasts on both the

CBC's flagship network and its Newsworld network. In reaching that finding, the Trial Judge noted the

CBC's practice of securing rights to cover both networks, and dismissed Leuthold's argument based on

the contra proferentum rule (i.e., that an ambiguity in a contract drafted by one party should be

resolved in favour of the other party) because the license grant was negotiated and not a part of the

CBC's boiler plate form of agreement. As well, the Trial Judge noted that even though the CBC and

Newsworld are separate entities, as Leuthold argued, Leuthold was seeking damages for the

broadcasts on the Newsworld network from the CBC and not Newsworld.7

On appeal, it was found that the Trial Judge "considered all the evidence before him and, based on

that evidence, reached a conclusion that was reasonably open to him. . . . There is no palpable or

overriding error warranting this Court's intervention."8

Time Zones

The Trial Judge found that the license included "the right to one broadcast in each time zone on the

ground that this was industry practice".9 This finding was not expressly challenged on appeal.

10

Accounting for Retransmissions

The Trial Judge found that only six broadcasts had occurred, and on appeal, this finding was upheld.

Pelletier J.A., speaking for the Court of Appeal, emphasised that the drafters of the Copyright Act

intended to create an Act that was technologically neutral. Based on this intention, he found that "the

number of infringing acts does not vary according to the number of intermediaries in the transmission

chain."11

Measure of Damages

Having found that there had been only six infringements, the Justices of the Court of Appeal found that

the measure of damages awarded at trial was reasonable at $20,000 (US), not the $22,000,000 (US)

claimed by the appellant.12

Conclusion

The finding regarding intermediaries and retransmission is interesting, but it is not clear that same

conclusion would or should be reached if the group of intermediaries is not limited to cable companies

and their local affiliates.

I.5 — R. v. Spencer: A Warrant is Required When Seeking Subscriber Information

By: Elisabeth Symons, Mann Symons LLP

If one stops for a moment and thinks about their online activities in the last 24, 48, 90 or more hours, it

is probable that one will be struck by just how much those activities reveal about who you are. Some of

the revelations will be innocuous. Some may not be innocuous. In R. v. Spencer,13

when the police

connected a series of online activities to Mathew David Spencer, the revelations were not innocuous.

He was charged with possessing and distributing child pornography. At trial, he was convicted of

possessing child pornography.

The police connected Spencer to his online activities because the Internet Service Provider (ISP) that

provided Internet services to Spencer's residence responded to a request for subscriber information

made by the police without a warrant. Its response identified Spencer's sister as the subscriber and

included the address to which the services were being provided. With that information, the police were

able to obtain a search warrant for the residence, and, in the course of that search, they seized

Spencer's computer. When the computer was searched, the police found child pornography (hundreds

of still images and over 100 videos).

Issues

1. Did the police conduct a search when they requested and received the subscriber information from

the ISP?

2. Was section 8 of the Charter of Rights and Freedoms breached by the search?

3. Should the evidence be excluded?

Findings

1. — Did the police conduct a search when they requested and received the subscriber

information from the ISP?

The prevailing approach for determining whether or not a search has taken place is to take into

account a number of overlapping circumstances and consider them as a whole. The same

circumstances are also considered when determining whether or not a search that has taken place is

reasonable. In the Supreme Court of Canada's decision in R. v. Spencer, Cromwell J. set out the

overlapping circumstances: "(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".14

His consideration of these circumstances, as they manifested in R. v.

Spencer, led him to the conclusion that a search had taken place.15

In examining the subject matter of the alleged search, Cromwell emphasised the importance of not

considering the subject matter in a vacuum. In doing so he agreed with the decision made in the

Saskatchewan Court of Appeal and "looked at not only the nature of the precise information sought,

but also at the nature of the information that it reveals" and the impact of those revelations on the

individual.16

In this case, the implication was significant: the loss of anonymity. However, Cromwell J.

stopped short of finding a right to be anonymous. He did find that an individual may have an

informational privacy interest in remaining anonymous when interacting with others over the Internet.17

In examining whether or not Spencer's expectation of privacy was reasonable, Cromwell J. considered

the: (i) wording of the services agreement between the ISP and its subscriber (including the privacy

policy incorporated by reference into it); (ii) the provisions of the Criminal Code18

relating to searches;

and (iii) privacy legislation (specifically, the Personal Information Protection and Electronic Documents

Act (PIPEDA))19

. By reading the services agreement together with the privacy policy, Cromwell J.

concluded that the ISP might only disclose subscriber information in exceptional circumstances or

when required by law.20

After reaching this conclusion, Cromwell J. rejected the Crown's argument that

a request from law enforcement to provide information amounted to being required by law to do so,

and he disagreed with it, noting that that conclusion could not be supported by the wording set out

inPIPEDA (section 7(3) in particular).21

2. — Was section 8 of the Charter of Rights and Freedoms breached by the search?

In order not to breach section 8 of the Charter: (i) a search must be authorised by law; (ii) the law must

be reasonable; and (iii) the manner in which the search is carried out must be reasonable.22

Given that

he found the search of Spencer's residence to be unauthorised by law, Cromwell J. found that the

search was unreasonable and a breach of section 8.

3. — Should the evidence be excluded?

Cromwell J. concluded that the decision of the lower court to exclude the evidence arising from the

search was not well founded.23

Using the test from R. v. Grant,24

Cromwell J. considered "the effect of

admitting the evidence on society's confidence in the justice system having regard to: (1) the

seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-

protected interests of the accused; and (3) society's interest in the adjudication of the case on its

merits: para. 71."25

Balancing the three factors, Cromwell J. concluded that the evidence gathered from

the illegal search need not be excluded.26

In doing so, he commented that the police could not be said

to have acted with flagrant disregard for the Charter given that the trial judge and three judges of the

Court of Appeal had concluded, albeit in opposition to the Supreme Court's finding, that the search

was lawful.27

Conclusions

When investigating criminal or other unlawful activities, if it becomes necessary to identify an individual

based on an IP address, law enforcement personnel should obtain a warrant or other authorisation to

compel the applicable ISP to provide that information. While the evidence obtained from the search

conducted in breach of section 8 of the Charter was admissible in this instance, it is unlikely that the

same conclusion would be reached if the search were conducted in similar circumstances in the future.

II. — Digests

II.1 — District of Mission: Decision of Office of Information and Privacy Commissioner of

British Columbia28

By: J. Fraser Mann, Mann Symons LLP

In this decision, the British Columbia Office of the Information and Privacy Commissioner considered

whether a public body subject to the British Columbia Freedom of Information and Protection of

Privacy Act ("FIPPA") should be compelled to disclose proposals submitted in response to an RFP.

The application for disclosure in this case was brought by one of seven parties that had submitted

proposals, and sought the disclosure of the remaining six proposals.

The public body in this case, the District of Mission, relied on section 21(1) of FIPPA as grounds for not

releasing the proposals submitted by the other proponents. Section 21(1) provides that a public body

must refuse to disclose information to an applicant if three conditions are met:

(i) The information would reveal commercial, financial or certain other types of information of a third

party;

(ii) The information is supplied in confidence;

(iii) Disclosure of the information would cause one of four harms, namely, disclosure would harm

significantly the competitive position of the third party or would interfere significantly with that party's

negotiating position, or disclosure would cause undue financial loss or undue financial gain to any

person or organization.

Of these three conditions, the IPC determined that the first two conditions were met. First, the various

proponents' proposals contained commercial and financial information, insofar as they set out the

services proposed to be provided by the proponents and the means for doing so. Second, the

information contained in the proposals was clearly supplied by the proponents, and was also supplied

in confidence. The confidential nature of the information was demonstrated by the acknowledgement

that the proponents were required to provide stating that they had carefully read the RFP, and by

statements in the RFP indicating that the information in the proposals would be held in confidence, and

that information supplied by one proponent would not be discussed with another proponent. That the

information was supplied in confidence was confirmed by the District's affidavit stating that it received

the proposals in confidence and by submissions to the Court made by several proponents stating that

they had submitted their proposals in confidence.

On the third issue, the IPC determined that the District met the burden of establishing that one of the

four identified harms could reasonably be expected to occur. The IPC accepted the position taken by

both the District and several proponents that release of the information would significantly harm the

proponents' competitive position, or would interfere significantly with their negotiating position. In

reaching this conclusion, the IPC noted that the parties in question were direct competitors, and that

the industry for which the RFP was issued was competitive in nature.

The IPC found further that release of the information in question, in circumstances where no contract

had been awarded and the parties were expected to compete for the same or similar work in the

future, would reasonably be expected to result in undue financial loss or gain to the proponents.

Specifically, it would result in undue gain since the District had yet to negotiate terms for carrying out

the work and the applicant could use the information to provide a more attractive offer, thereby giving

the applicant something of value for nothing. The same circumstances could result in undue loss for

proponents. The IPC relied on an earlier decision29

which found that gain is considered to be "undue" if

it results from the acquisition of competitively valuable information for nothing (i.e., if disclosure results

in a competitive insight that provides an applicant with an unfair and inappropriate competitive

windfall).

The IPC concluded that the test of potential harm was not met for certain types of information set out in

the proponents' proposals, namely information that was publicly available, or information of such a

general nature that it would not reasonably be expected to have monetary value.

II.2 — Domains and the Average Internet User: Insurance Corporation of British Columbia v.

Stainton Ventures Ltd.30

By: Elisabeth Symons, Mann Symons LLP

The Court of Appeal for British Columbia recently concluded that the average Internet user knows

enough about how the Internet operates that the inclusion of an acronym that happens to be an official

mark of a public body in a compound domain name was not in and of itself enough to cause the user

to mistakenly believe that the web site using that domain name was operated by the public body who

adopted the official mark.

Background:

The Insurance Corporation of British Columbia, commonly referred to as "ICBC", adopted that

acronym as an official mark. The defendant, Stainton Ventures Inc., registered a number of domain

names that combine the letters ICBC with other words (for example, "icbcadvice.com",

"icbclawyers.ca", "icbcsucks.com" and "fighticbc.com"). All of the domain names registered resolved to

a web site operated by Stainton for the purpose of promoting the practice of a lawyer who acts for

individuals who have been injured in motor vehicle accidents. Further, some effort was made by

Stainton to make it obvious that the web site was not operated by ICBC. Regardless, ICBC sued

Stainton for infringement and passing off.

Finding

The trial judge found that there had been no infringement or passing off. Frankel J. of the Court of

Appeal for British Columbia agreed accepting the defendant's evidence that "no one ever

communicated any confusion or mistake as whether the website was ICBC", noting that ICBC failed to

provide any evidence of confusion31

and stating that:

"I am unable to accept this argument as it fails to give the "relevant consumer", i.e., an

Internet user, credit for even the most basic understanding of the function of a domain

name. Even though there is some resemblance between ICBCadvice.com and ICBC's family

of marks, the average Internet user with an imperfect recollection of ICBC's marks would not

likely be mistaken by the domain name. They understand, for example, that a domain name

which, in part, contains the name of a business or its acronym will not necessarily be affiliated

with or endorsed by that business and may, instead, be the subject matter of the website or

entirely unrelated to that business. As well, they understand that it is necessary to view a

website to determine whose site it is."32

The appeal was dismissed. No damages were awarded. The domain names in question were not

ordered transferred to ICBC.

II.3 — Begum v. Canada (Minister of Citizenship and Immigration), 2013 CarswellNat 2920, 2013

CarswellNat 3534, 2013 FC 824, 2013 CF 824, 231 A.C.W.S. (3d) 783 (F.C.)

The internet provides instant access to a vast amount of information on any given subject, some of this

information is accurate, and some of it is not. Even if the information were not to be considered as

extrinsic because it can be found on the internet, then there would also have to be some obvious

connection to the information, and the use intended to be made of it by an officer, such that an

applicant could reasonably expect that such information would be accessed and utilized in the context

of the particular decision being made by the officer. That was not the situation in this case. Where an

immigration officer relies on a document from a non-standard site, there is a duty to disclose novel and

significant evidence which affects the decision. The Officer reviewed the website of the university that

the principal Applicant attended, another website pertaining to the university's ranking, Bangladesh

country conditions prevailing at the time of her university attendance and the website of the school

where she taught in Bangladesh and concluded that the Applicant was not at a risk of hardship arising

from domestic violence as she must be from a wealthy family. The basis of this conclusion was that the

Applicant attended a high ranking university and could afford to do so during a time when Bangladesh

was suffering from the effects of famine then flooding. The Officer clearly relied on this extrinsic

evidence. Not only did the Officer rely on extrinsic evidence to reach a conclusion as to the principal

Applicant's family's wealth, the Officer then went on to state that the Applicant did not provide evidence

to dispel that assumption. It was a breach of procedural fairness to obtain and rely on extrinsic

evidence for the purpose of supporting an inference that had not been put to the Applicants and then

to fault them for not having responded to that inference. It was also unreasonable to expect the

principal Applicant to anticipate that the inferred wealth of her family twelve years ago would form the

basis of the Officer's finding that she would personally be unlikely to be at a risk of hardship due to

domestic violence if she returned to Bangladesh.

II.4 — Ministry of Natural Resources (Re), 2014 CanLII 2115 (Information and Privacy

Commissioner, Ontario, Order PO-3292)

The order disposed of the issues raised as a result of a decision made by the ministry in response to

an access request under theFreedom of Information and Protection of Privacy Act for records relating

to all verbal and written communications pertaining to the granting of a contract between the ministry

and the named company, and any extensions to it during its term. After considering the response from

the affected parties, the ministry issued a decision, granting access to some records, in whole or in

part. Other records were withheld, in full. The ministry claimed the application of the mandatory

exemptions in section 21(1) (personal privacy) and 17(1) (third party information), and the discretionary

exemptions in sections 13(1) (advice or recommendations), 18(1) (economic and other interests) and

19 (solicitor client privilege) of the Act. The information that was withheld from the appellant was

information concerning vacation and/or personal time taken by a number of identifiable individuals.

Information about the individuals' vacation and/or personal time is recorded information about them

and qualifies as their personal information despite the fact that the named individuals were acting in

their professional capacity. Information about an individual's vacation and/or personal time would

reveal something of a personal nature about them. There are no factors either favouring disclosure or

non-disclosure of the individuals' vacation and/or personal time to the appellant. However, as the

section 21(1) exemption is mandatory, and there are no factors favouring disclosure, the exemption

and the ministry's decision with respect to the personal information contained in the records was

upheld. Consequently, those portions of records that were withheld under section 21(1) will not be

disclosed to the appellant. Some of the records for which section 17(1) was claimed contain

information that would constitute "commercial" information for the purposes of section 17(1). These

records contain information relating to the buying, selling or exchange of merchandise or services. In

this case, there is information in the records about the affected party's proposed provision of services

to the ministry and the substance of negotiations between the affected party and the ministry. Similarly,

other records contain "technical" information. In particular, some of the records describe technical

problems and how they were proposed to be resolved, as well as implementation plans, validation

protocols and functionality. This type of information qualifies as technical information for purposes of

section 17(1), as it describes the operation or maintenance of a process, specifically the processing of

customers' payments using the on-line reservation system. The commercial and technical information

contained in the records at issue was supplied by the affected party to the ministry, or that the

information in the records meets the inferred disclosure exception, as its disclosure would reveal

underlying non-negotiated information supplied by the affected party. In this order, the adjudicator

upholds the ministry's decision, in part, and determines that the exemptions in sections 19 and 21(1)

apply to the records for which they were claimed. The adjudicator also determines that the exemptions

in sections 17(1) and 18(1) apply to some of the information at issue. However, the adjudicator finds

that the exemption in section 13(1) does not apply. Lastly, the adjudicator upholds the ministry's

exercise of discretion. The ministry is ordered to disclose some of the records at issue to the appellant.

II.5 — R. v. Strowbridge, 2013 CarswellNfld 334, 2013 NLCA 57, 1061 A.P.R. 144, 109 W.C.B. (2d)

85, 341 Nfld. & P.E.I.R. 144(N.L.C.A.)

Strowbridge applied for Judicial Interim Release pending his appeal from sentence following his

convictions for seven offences. He received a custodial sentence of 15 months plus 3 years probation,

restitution orders totaling $1,724.88 and a fine of $5,000. He acknowledged a prison term of 9 months

was fit for two frauds and three breaches of probation. However, he argued that a 6 month consecutive

prison term for copyright and trademark infringements was demonstrably unfit. Where no previous

authoritative decision has established the need for a prison term and determined the range of

sentence for a similar offence by a similar offender in similar circumstances, an appellant should not

be prevented from proceeding with an appeal of a custodial sentence and making submissions as to

the appropriate range. Strowbridge's appeal had sufficient merit to establish that it would cause

unnecessary hardship if he were detained in custody since the detention for the offences appealed

would commence before the appeal had been heard. The appeal, at least to some extent, would be

rendered nugatory.

Footnotes

1 Saskatchewan Office of the Information and Privacy Commissioner, Investigation Report F- 2013-

003, Re: Ministry of Highways and Infrastructure http://www.oipc.sk.ca/Reports/F-2013-003.pdf

2 S.S. 1990-91, c. F-22.01, s. 25.

3 2014 FCA 185, 2014 CAF 185, 2014 CarswellNat 2798, 2014 CarswellNat 2799.

4 2013 FC 427, 2013 CF 427, 2013 CarswellNat 1230, 2013 CarswellNat 1231, 434 F.T.R. 207 (Eng.),

111 C.P.R. (4th) 1.

5 2014 BCCA 295, 2014 CarswellBC 2141.

6 Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, 2014 CarswellBC 1694.

7 2014 FCA 173, 2014 CarswellNat 2246, paras. 25-28.

8 Ibid., para. 31.

9 Ibid., para. 11.

10 Ibid., para. 11.

11 Ibid., para. 39.

12 Ibid., para. 44.

13 2014 SCC 43, 2014 CSC 43, 2014 CarswellSask 342, 2014 CarswellSask 343, 11 C.R. (7th) 52,

[2014] 8 W.W.R. 209, [2014] S.C.J. No. 43.

14 Ibid., para. 18.

15 Ibid., para. 51.

16 Ibid., para. 26.

17 Ibid., para. 49.

18 R.S.C. 1985, c. C-46.

19 S.C. 2000, c. 5.

20 Ibid., paras. 58 and 59.

21 Ibid., paras. 65 and 71.

22 Ibid., para. 68.

23 Ibid., para. 75.

24 2009 SCC 32, [2009] 2 S.C.R. 353, 2009 CarswellOnt 4104, 2009 CarswellOnt 4105, EYB 2009-

161617, 97 O.R. (3d) 318 (note), 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, 309 D.L.R. (4th) 1, 82 M.V.R.

(5th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32.

25 2014 SCC 43, para. 76.

26 Ibid., para. 81.

27 Ibid., para. 77.

28 2014 BC IPC No. 24.

29 Order No. 03-33, 2003 CanLII 49212.

30 2014 BCCA 296, 2014 CarswellBC 2124.

31 Ibid., para. 5.

32 Ibid., para. 37.