Part #5 Exploring Tech Litigation & Investigations in Canada
Canada's Responsible Technology Landscape
Table of Contents
Key Acronyms
Introduction
Tech-Related Landmark Cases in Canada
Recently Decided Tech Cases in Canada
Pending Tech Litigation in Canada
Tech-Related Cases Focused on Charter Rights
Concluded Tech-Related Investigations in Canada by Administrative Bodies
Conclusion
Appendix A: Key Acronyms
Introduction
Legal actions and regulatory investigations play a pivotal role in influencing the trajectory of technological advancements and can help with the realization of digital rights. They address a range of critical concerns, from safeguarding data privacy to defining the boundaries of free speech and identifying when algorithms display discriminatory behavior, among other issues in the online realm.
Below is a compilation of significant cases, encompassing recent decisions and ongoing proceedings across various Canadian superior courts and tribunals. These cases carry substantial importance, impacting the tech landscape in profound ways. Certain cases have had impacts on a wide range of stakeholders involved. It is important to note that this list is not exhaustive and will be continuously updated as developments unfold over time.
Tech-Related Landmark Cases in Canada
R. v Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 (Privacy, Search and Seizure)
Supreme Court of Canada - Link
In the case of R v Spencer, Spencer was accused of child pornography charges subsequent to Saskatoon law enforcement procuring his Internet Protocol (IP) address's subscriber details from Shaw, his Internet Service Provider (ISP). The police had approached Shaw for the information, bypassing the need for a warrant, invoking s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act (PIPEDA), and Shaw acquiesced to this request. The accused sought to exclude the evidence derived from Shaw's voluntary disclosure under s.24(2) of the Charter. His argument rested on the premise that the request for his subscriber information, devoid of judicial authorization, constituted an unreasonable intrusion and seizure as per Section 8 of the Charter.
The Supreme Court ruled that a user should reasonably anticipate privacy concerning the information shared by Shaw. This data wasn't solely subscriber data, but rather, it encompassed the identity of an internet user linked to specific, monitored online activities. This aspect invoked the accused's right to informational privacy, specifically the element of anonymity. The legal and contractual framework in this situation remained ambiguous, yet it couldn't decisively shape the accused's privacy rights. The Court concluded that due to this legitimate expectation of privacy, the solicitation for voluntary disclosure qualified as a search. Given that this search lacked grounding in any police authority as per the Criminal Code or approval from PIPEDA, its execution violated the Charter.
Nonetheless, in this instance, the broader societal interest in ensuring a thorough trial outweighed the accused's interest in suppressing the evidence. Therefore, the Court sanctioned the inclusion of the evidence despite its Charter infringement.
Stakeholders Affected: Individuals, Law Enforcement Agents, Internet Service Providers.
Google Inc v Equustek Solutions Inc, [2017] SCJ No 34 (Deleting Infringing Copyright items on a global basis, Copyright Infringement, Right to be Forgotten)
Supreme Court of Canada - Link
The case originated when a former distributor of Equustek, the plaintiff, allegedly misappropriated confidential information and began replicating and selling Equustek's products. Equustek initiated legal action in the British Columbia Supreme Court, alleging trademark infringement and trade secret misappropriation. Despite the defendant's initial presence in British Columbia (BC), it later moved its operations abroad, stopped defending the case, but continued to fulfill online orders for potentially infringing items from undisclosed locations.
As the defendant proved difficult to locate, Equustek sought assistance from Google to restrict access to the defendant's websites by removing them from its search results. Google complied with this request by removing specific URLs from its Canadian domain, google.ca, but it declined to block the entirety of the defendant's domains. Consequently, the defendant merely shifted the disputed content to new pages within its websites. Moreover, Google's actions were limited to its google.ca service, therefore users searching on google.com or other Google domains still had access to the defendant's web pages.
Growing frustrated with the defendant's evasiveness, Equustek pursued an interlocutory injunction against Google Inc., an American company. The BC court ruled in favor of Equustek, instructing Google to cease indexing or referencing the websites listed in the court's order on its search engines. This directive encompassed all subpages and subdirectories of the specified websites. Google appealed this decision to the BC Court of Appeal, which upheld the initial ruling. The Court of Appeal determined that the BC courts had jurisdiction over Google due to its activities within the province. Additionally, the Court of Appeal justified a comprehensive injunction, even though its effects reached beyond territorial boundaries.
Google appealed the decision to the Supreme Court of Canada (SCC), and the appeal was dismissed by a majority of the Supreme Court (7-2), affirming the global interlocutory injunction against Google. The Court emphasized that the decision to grant an injunction based on the RJR-Macdonald factors rests on discretion and merits significant deference. It underscored that the key consideration revolved around the fairness and appropriateness of the injunction within the specific circumstances while assessing the plaintiff's fulfillment of its obligations in this case.
The Supreme Court clarified that Canadian courts possess the authority to issue injunctions targeting innocent non-parties, a precedent already established, as exemplified by instances like Norwich orders (compelling non-parties to disclose information) and Mareva injunctions (freezing non-parties assets before trial).
The majority of the Court also rejected Google's contentions regarding extraterritoriality, deeming them as "theoretical." Despite Google's assertion that complying with the injunction might lead to violations of other jurisdictions' laws, the majority concluded that Google hadn't substantiated its argument and could always petition the issuing court to modify the injunction. Furthermore, the majority viewed the injunction as not significantly impinging on freedom of expression interests in a manner that would tilt the convenience balance in favor of Google.
Stakeholders Affected: Corporations, Search Engines,
Crookes v Newton, 2011 SCC 47, [2011] 3 S.C.R (Defamation, Contributory Liability, Hyper-Linking Publication)
Supreme Court of Canada - Link
In this case, the SCC ruled that a mere hyperlink is never a form of publishing defamatory content. Consequently, Crookes' defamation case was deemed unfounded, as the hyperlinks present on Newton's website, leading to other potentially defamatory content, did not amount to a "publication" of defamatory material. Nonetheless, had the article restated the defamatory content within it or if the hyperlink's text itself reiterated the defamatory material, there could have been grounds for considering it a "publication" that could be subject to the legal claim of defamation.
Stakeholders Affected: Bloggers, Online platforms, Publishers
Teksavvy Solutions Inc v Bell Media Inc, et al (Illegal Streaming, Copyright, Take-Down Orders)
Supreme Court of Canada - Link
The SCC rejected Teksavvy Solutions Inc.'s request for permission to appeal the Federal Court of Appeal's ruling (2021 FCA 100), which upheld the Federal Court's decision in Bell Media Inc. et al. v Goldtv.biz et al. (2019 FC 1432). This earlier decision had mandated the leading ISPs in Canada to obstruct their customers' entry to specific websites associated with piracy.
The background of the case is that Bell Media Inc., Groupe TVA Inc., and Rogers Media Inc. initiated legal action for copyright infringement against the unidentified developers responsible for two highly popular unauthorized subscription services operating under the name GoldTV (referred to as GoldTV Services). These services were distributing a significant volume of content owned by both the Plaintiffs and third parties. Despite the issuance of interim and interlocutory injunctions against GoldTV Services in July and August of 2019, certain aspects of the services continued to operate, leaving the Plaintiffs without a good avenue of remedy.
In light of this situation, the Plaintiffs pursued and eventually obtained a Court Order that mandated major ISPs in Canada to prevent their subscribers from accessing the GoldTV Services.
Teksavvy Solutions, an ISP that had previously contested the issuance of the site-blocking Order in front of the Federal Court, contested the Order through an appeal before the FCA. This appellate body, in a unanimous decision on May 26, 2021, confirmed the blocking order's legality and sided with Bell and Rogers.
Teksavvy Solutions subsequently sought permission to appeal the FCA’s decision to the SCC. They based their application on the argument that the Federal Court lacked jurisdiction to issue such an order under the Copyright Act and that the applied framework for its issuance was inappropriate, primarily due to concerns related to freedom of expression. However, the SCC denied Teksavvy Solutions’ leave to appeal.
Stakeholders Affected: Internet Service Providers, Individuals, Internet Protocol Television (IPTV) providers, ISP Subscribers.
Canada (Commissioner of Competition) v Rogers Communications Inc and Shaw Communications Inc (Competition Law, Mergers and Acquisitions)
CanLII - Link
On December 30, 2022, the Competition Tribunal made a significant decision in relation to the proposed merger between Rogers Communications Inc. (“Rogers”) and Shaw Communications Inc. (“Shaw”), which was valued at CA $26 billion. The Tribunal's ruling stated that the sale of Shaw's subsidiary, Freedom Mobile Inc. (“Freedom Mobile”), to Vidéotron Ltd. (“Vidéotron”), a Québec-based telecommunications company, before the completion of the sale to Rogers, would ensure that competition in the industry would not be significantly reduced. Therefore, the Tribunal dismissed the Competition Bureau's (“the Bureau”) application, which had raised concerns about the impact of the merger on competition in the telecommunications sector.
Stakeholders Affected: ISPs (especially small ISPs) ISP subscribers,
Recently Decided Tech Cases in Canada
Facebook, Inc. v. Canada (Privacy), 2023 FC 534
CanLII - Link
The Federal Court of Canada's April 14, 2023 decision in Office of Privacy Commissioner (OPC) v Facebook Inc. addressed allegations that Facebook (now “Meta Platforms, Inc.”) violated Canada's PIPEDA by sharing user data with a third-party app. The Privacy Commissioner's application claimed Facebook's actions breached Canadian privacy laws. The Court, however, dismissed the application, citing a lack of evidence.
The case stemmed from the "thisisyourdigitallife" (“TYDL App”) third-party app on Facebook Platform, which reportedly sold user data to Cambridge Analytica for political messaging during the 2016 U.S. presidential election. Despite global fines for Facebook over the Cambridge Analytica matter, the Canadian application was not upheld.
The Court focused on two key points:
Meaningful Consent: The Commissioner argued Facebook lacked meaningful consent when sharing data with the third-party app. While acknowledging third-party consent, the Court required reasonable steps to ensure meaningful consent. Insufficient evidence led the Court to conclude the Commissioner had not proven the case.
Safeguarding User Information: The Commissioner alleged Facebook failed to safeguard user data. Facebook contended its obligations ended with user authorization for third-party disclosure. The Court agreed, emphasizing that PIPEDA's safeguards didn't apply to data beyond an organization's control.
Stakeholders Affected: Online Platforms, Users of online platforms, Researchers
Gwendolyn Louise Deegan v Attorney General of Canada (Privacy, Search and Seizure)
Supreme Court of Canada - Link
In this case, the SCC rejected an appeal challenging the constitutionality of a part of the Canadian Income Tax Act. In 2014, Canada made its own laws to help the United States (US) with checking on people who have accounts outside the US but still need to pay US taxes. These laws require Canadian banks to provide the Canada Revenue Agency (CRA) information about customers who might have tax obligations in the US. Canada provides that information to the US Department of Internal Revenue Services.
Two individuals, Gwendolyn Louise Deegan and Kazia Highton, brought a lawsuit to challenge the constitutionality of this law before the Canadian Federal courts. Although they did not experience any specific personal harm as a result of this law, they argue that information sharing was akin to unreasonable search and seizure under Section 8 of the Canadian Charter of Rights and Freedoms and should therefore be rendered invalid. The Federal Court disagreed and held that the law was okay due to Canadian financial obligations and interests, even if this provision also aided US interests.
The Federal Court of Appeal (FCA) agreed with the Federal Court’s decision indicating that the law did not contravene the Charter, as the anticipated data collection was deemed reasonable within the context of Section 8. The FCA deemed that even though the US could use this information for matters such as prosecuting individuals for tax evasion and in the implementation of its tax regulations, the enactment of the provision was driven by a purpose beneficial to Canada and that the information being shared is “regulatory in nature.” The FCA further held that the law fits with international standards for sharing financial information.
On appeal, the SCC upheld the decisions made by the lower courts and dismissed the application of the Appellants.
Stakeholders Affected: Financial Institutions, Bank customers, and Canada Revenue Agency.
Michael Obodo v. Trans Union of Canada, Inc., Glenn Winder v. Marriott International, Inc. and Alina Owsianik v. Equifax Canada Co. (Privacy, Intrusion Upon Seclusion)
Supreme Court of Canada: Obodo v. Trans Union - Link, Winder v. Marriott - Link, and Owsianik v. Equifax - Link
In the three cases above, the SCC declined to grant permission for an appeal, thus upholding three decisions by the Ontario Court of Appeal (ONCA). These ONCA rulings refused to apply the legal concept of intrusion upon seclusion to entities referred to as "database defendants." These are organizations engaged in commercial activities that gather and maintain personal information and subsequently face unauthorized third-party breaches of their databases.
The SCC's decision holds particular significance for such database defendants since individuals pursuing legal action in data breach cases must now establish quantifiable harm (e.g. economic, reputational, etc.) to substantiate their claims against the defendant following an unauthorized breach by a third party. This requirement introduces challenges for plaintiffs, especially in joint legal actions where the group of plaintiffs has not encountered severe losses other than minimal.
Stakeholders Affected: Individuals, Credit Bureaus, Online Platforms that keep customers' private information.
Dione Setoguchi v Uber B.V., et al (Privacy, Data Breach Notification, Ransomware Attack)
Supreme Court of Canada - Link
In October 2016, Uber B.V. the payment processor for Uber Technologies, Inc faced a significant data breach incident involving the unlawful acquisition of private data belonging to a vast number of drivers and users. In response to this breach, Uber found itself confronted with a ransom demand from the hackers, which Uber obliged by paying a ransom. The terms of this agreement with the hackers assured the destruction of the compromised data, rather than its dissemination online. In November 2017, Uber publicly revealed the occurrence of the breach and announced its intentions to undertake specific measures to monitor and mitigate the impact on the affected individuals. Subsequently, the incident came under scrutiny, leading to investigative actions and resultant penalties on a global scale, with Canada also being among the jurisdictions taking action.
Within this context, Ms. Setoguchi, who was an active Uber user at the time of the data breach, initiated a court action. Her objective was to obtain certification for a class action, encompassing individuals situated in Canada whose personal information had been illicitly accessed from Uber's systems by the hackers. This category excluded individuals in Quebec, as their interests were being pursued through a distinct legal process. Ms. Setoguchi's legal contentions rested upon allegations of contractual breach and negligence attributed to Uber. Central to her assertions was the contention that Uber, as per the terms in its user and privacy agreements, had violated its obligation to safeguard the sensitive information owed to members of the class action lawsuit. The alleged breaches encompassed the unsanctioned transfer of user data to a third-party cloud-based service, the concealment of the breach event from users and relevant authorities, the disclosure of compromised information to the third party, and purported inadequacy in implementing robust security measures to ensure the protection of the said information.
Subsequently, a certification judge evaluated the appropriateness of pursuing the matter as a class action and determined that such a procedural avenue was not the most advantageous course. This conclusion was rooted in the uncertainty surrounding the ability to demonstrate harm that was consistently experienced across the entire class action lawsuit. Moreover, the judge deemed that pursuing the claim collectively would not substantially enhance the accessibility to justice, particularly given the expected nominal nature of potential damages. This decision was subsequently upheld, as the Court of Appeal dismissed Ms. Setoguchi's appeal against the certification judge's ruling.
Stakeholders Affected: Online Platforms, Users of online platforms
R v O’Brien (Privacy, Search and Seizure, Warrantless Search)
CanLII - Link
In this case, Mr. O'Brien and his wife were awakened by police officers who had a search warrant for their home and electronic devices. The police officers immediately asked O'Brien for the passwords to his smartphone and computer upon entry, without informing him of his rights. They found incriminating evidence on some of O’Brien’s password-protected devices. During the trial, it was revealed that police routinely ask for passwords without explaining the consequences, which raised concerns about police behavior. The trial judge excluded evidence from the smartphone, citing violations of O'Brien's rights to silence and protection against unreasonable search and seizure under the Charter of Rights and Freedoms. However, evidence from the computer was admitted, as police claimed the password was found near the computer. O'Brien was found guilty of cybercrimes including child pornography.
The Ontario Court of Appeal disagreed with the trial judge, stating that the deliberate and systemic misconduct by the police was serious. The court emphasized that the breach of Charter rights was significant due to the forced provision of passwords without the opportunity to consult a lawyer. The court excluded the computer data, overturned the conviction, and ordered a new trial.
The case serves as a barrier against law enforcement employing coercive strategies to deceive suspects into thinking they must reveal their passwords. The ruling censures law enforcement's tactic of exploiting the emotional turmoil of raids to compel suspects, during intense situations, to "voluntarily" provide their passwords without ensuring informed consent.
Stakeholders Affected: Individuals, Law enforcement Agents
Proctorio, Incorporated v Linkletter, 2022 BCSC 400 (Freedom of Speech, Copyright V. Public Right to Know)
CanLII - Link
Ian Linkletter, the learning technology specialist at the University of British Columbia, expressed his viewpoints on Twitter regarding Proctorio's software. This software is designed to monitor students during remote examinations on their computers. Linkletter accessed Proctorio's online platform and its unlisted instructional videos on YouTube, subsequently sharing seven of these links on his Twitter account. Once Proctorio became aware of this, it promptly disabled the links.
Proctorio initiated legal proceedings against Mr. Linkletter due to its objection to the public disclosure of its copyrighted and confidential information. The lawsuit encompassed claims of copyright infringement, circumvention of technological protection measures, and breach of confidence. Proctorio also filed an ex parte injunction.
Responding to this, Mr. Linkletter pursued an "anti-SLAPP" application under section 4 of the B.C. Protection of Public Participation Act, SBC 2019, c 3 (known as the PPPA). This section stipulates that the Court may dismiss an action arising from expression related to a matter of public interest unless the plaintiff can demonstrate "grounds to believe" that the action holds significant merit, that the defendant lacks a valid defense, and that the harm suffered by the plaintiff from the defendant's expression outweighs the public interest in safeguarding that expression.
In a decision issued on March 11, 2022, Proctorio achieved success, leading to the dismissal of Mr. Linkletter's application.
Stakeholders Affected: Individuals, Online Platforms, Manufacturers of Online Monitoring softwares.
Pending Tech Litigation in Canada
Voltage Holdings, LLC v Doe#1 et al, 2022 FC 827 (Copyright)
CanLII (High Court Decision) - Link
This is a Canadian copyright file-sharing lawsuit pending before the FCA that alleges that a group of internet subscribers using BitTorrent unlawfully made the film Revolt available for distribution. The movie production company is seeking both a default judgment against thirty internet subscribers and statutory damages and costs. This case could have broader implications on Freedom of Speech because cases like this are likely to extend to seeking orders to shut down sites that contain both legal and illegal content that will unintentionally censor legitimate speech.
Stakeholders Affected: Internet Service Providers, Internet Service Subscribers
Heller v Uber Technologies Inc. (Labour Rights)
Supreme Court of Canada - Link
An Uber class action lawsuit was initiated by employment law firm Samfiru Tumarkin LLP in October 2021 alleging that Uber’s drivers should in fact be classified as employees and seeking $200 million in compensation and $200 million in punitive damages on behalf of Ontario-based Uber drivers who have worked for the company since 2012.
In this case, David Heller ("Heller") an Uber driver who is one of the persons joined in the class action lawsuit was required, like other Uber drivers, to sign a standard form services agreement to commence work as an Uber driver in Toronto, Ontario. The agreement featured a clause stipulating that any disputes must initially be subjected to arbitration in the Netherlands.
However, the agreement failed to disclose the initial costs of USD $ 14,500 required to initiate the prescribed arbitration procedure. This arbitration expense greatly exceeded Heller's annual gross earnings, which fell within the range of approximately CAD$20,800 to $31,200. As a result, the arbitration provision effectively created a financial barrier for drivers wishing to raise claims against Uber. Heller challenged the provisions of the arbitration clause. Uber in an effort tried to compel Heller to stick to the terms of the arbitration he had signed.
The matter eventually got to the SCC, the majority of the Supreme Court refrained from addressing the Employment Standards Act, 2000 (ESA) matter. Instead, Justices Abella and Rowe arrived at the conclusion that the arbitration clause displayed characteristics of unconscionability. In doing so, they introduced noteworthy modifications to the doctrine of unconscionability in the Canadian context. The majority articulated the primary objective of unconscionability as safeguarding individuals who find themselves susceptible during the negotiation process, shielding them from potential loss or imprudent outcomes in the contractual arrangement that was established. This equitable mechanism empowers courts to nullify unjust agreements that significantly deviate from the principles of equitable, balanced, and equitable contracting.
Stakeholders Affected: Gig workers, Online Intermediaries.
Ha Vi Doan v. Clearview AI Inc., 2021 (Privacy)
Superior Court of Québec - Link
In this lawsuit, Clearview AI, an American company in the business of providing facial recognition and identification to third parties, is being sued for unlawfully gathering and selling Canadians' biometric data to external parties without obtaining consent.
The primary plaintiff in this case, Ha Vi Doan, asserts that Clearview acquires this data and employs an algorithm to construct a collection of images of a specific person. Third parties can subscribe to Clearview AI and gain access to these collections. The plaintiff further alleges that even policing agencies like the RCMP are among Clearview's clients.
Stakeholders Affected: Law Enforcement Agents, Search Engines, Users of online platform.
Guistra v Twitter, 2021 (Defamation)
CanLII - Link
In Giustra v Twitter, Inc., in 2021, the Plaintiff argued that Twitter was responsible for defamatory speech involving several tweets repeating allegations of involvement in a conspiracy theory known as “pizzagate. ” In this conspiracy, many of the posts are centered on Canada, including those focused on Mr. Giustra’s role as a founding patron of “boys Club.” These and other derogatory comments made baseless accusations of involvement in a pedophile ring.
In response, Twitter argued that the British Columbia (BC) Superior Court did not have jurisdiction on the grounds that its headquarters are located in San Francisco, U.S.A. There, Twitter would be protected by the U.S. Constitution's guarantee of free speech and by Section 230 of the U.S. Communications Decency Act (CDA), which shields online platforms from certain liabilities. Twitter also pointed out that, despite having a subsidiary in Toronto called Twitter Canada ULC, it had no employees or assets in BC or Canada.
While there was no clear evidence about how many people in BC accessed the tweets in question, Twitter estimated that it had roughly 500,000 users in the province. The BC court ultimately sided with Mr. Giustra, stating that the allegedly defamatory tweets were viewed, downloaded, and accessed in BC. As a result, the act of defamation occurred within BC’s jurisdiction, making it the appropriate jurisdiction for the case to be heard there. The Plaintiff’s lawsuit against Twitter claiming damages and injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform was allowed to proceed.
Stakeholders Affected: Online platforms, Individuals, Politicians
Facebook (Algorithmic Discrimination)
CBC News - Link
In this case, the Quebec Court of Appeals approved a class-action lawsuit that was launched against Facebook on behalf of Facebook users in January 2023. Claimants in the case alleged that the social media giant allowed advertisers to discriminate on the basis of age, gender, and race including for job and housing. The class action may include thousands of Quebec residents who have used Facebook since April 2016 and were looking for jobs or housing during that period.
Stakeholders Affected: Online Job boards that use Automated tools, Marginalized Individuals
Cool World Technologies Inc. v. Twitter Inc., 2022 ONSC 7156 (Freedom of Speech)
CanLII - Link
A lawsuit launched by Cool World Technologies claims that Twitter’s contract clauses that violate constitutional values violate public policy and should not be enforced. Twitter’s clauses essentially provide them with absolute discretion, which the claimant believes completely negates freedom-of-expression values and violates public policy. More information can be found here.
Stakeholders Affected: Online Advertisers, Online Platforms
Randy William Downes (Voyeurism)
Supreme Court of Canada - Link
A voyeurism case was filed in 2019 involving a coach of a Minor sports team who surreptitiously (without their knowledge or consent) took photographs using mobile devices in a sports facility changeroom where pre-teens were wearing only their underwear. Downes argued that the changing room was a public space and that the kids had no expectation of privacy. This argument was rejected by the courts and Downes was convicted in 2019 of voyeurism. His conviction was overturned in early 2022 on appeal as a result of a procedural issue. This decision to overturn his conviction was reversed in March 2023.
Stakeholders Affected: Minors
Tech-Related Cases Focused on Charter Rights
Over the past few years, Canadian courts have been faced with the challenge of balancing Charter rights with the use of technology in every sector of society. Several recent cases have specifically focused on Charter rights and freedoms.
R v Canfield, 2021 ABCA 352 (Warrantless Search, Privacy, Border Search, Validity of Laws that Contravene Charter Rights and Freedoms)
CanLII - Link
In this case, the Alberta Court of Appeal invalidated a law that allowed digital searches to be conducted without a warrant or any level of suspicion. The matter at hand arose in the context of the prosecution of Mr. Canfield and Mr. Townsend who were charged with possessing child pornography that was discovered on their personal digital devices (PDDs) during border searches conducted by the Canada Border Services Agency (CBSA) upon their entry into Canada. During the trial, the only matter in question was whether the searches and evidence obtained from electronic devices breached sections 7, 8, 10(a), and 10(b) of the Canadian Charter of Rights and Freedoms. The judge presiding over the trial concluded that section 99(1)(a) of the Customs Act was constitutional and valid. However, on appeal, the court determined that section 99(1)(a) violates section 8 of the Charter, which safeguards against unreasonable search and seizure since it places no limits or restrictions on the CBSA’s authority to search personal digital devices. The ruling takes into account that mobile phones capture information about vast areas of our personal and professional lives and that new laws related to mobile device searches should be narrow in scope in order to prevent infringing on personal privacy.
Stakeholders Affected: Individuals, Law Enforcement Agencies, Lawmakers
R. v. Telus Communications Co., 2013 SCC 16 (Privacy, Personal Information, Law Enforcement)
CanLII - Link
In the case of R. v. Telus Communications Co., the police obtained a warrant that required Telus Communications to provide copies of text messages sent or received by two of its subscribers. Telus objected to the production order, arguing that its customers had a reasonable expectation of privacy in their text messages and that the order violated their constitutional rights under section 8 of the Canadian Charter of Rights and Freedoms.
Siding with Telus, The SCC ruled that individuals have a reasonable expectation of privacy in their text messages, even if they are stored on a telecommunications provider's server. The Court recognized that text messages can disclose significant personal information and that individuals have a significant degree of control over their messages.
Stakeholders Affected: ISP Subscribers, ISPs, Law Enforcement Agencies
R v Spencer, [2014] 2 RCS 212 (Privacy, Personal Information, Search and Seizure)
Supreme Court of Canada - Link
The case involved whether an individual has a reasonable expectation of privacy in their internet usage information, including their IP address, which is collected by ISPs. The Court held unanimously that Internet users have a reasonable expectation of privacy in their subscriber information held by ISP. This means that police attempts to access such data could be subject to section 8 of the Charter of Rights and Freedoms.
Stakeholders Affected: Individuals, Law Enforcement Agents, Internet Service Providers.
R. v. Fearon, 2014 SCC 77 (Privacy in Mobile Devices, Warrantless Search)
CanLii - Link
The case involved the issue of whether police officers are permitted to search a suspect's cell phone without a warrant during an arrest. The case arose when Mr. Fearon was arrested for robbery, and his cell phone was seized and searched by the police without a warrant. The search revealed evidence that was used against him in court, and Mr. Fearon argued that the search was unconstitutional. Agreeing with Mr. Fearson, the Supreme Court held that the search of Mr. Fearon's cell phone was unconstitutional. The Court noted that while the search incident to arrest exception allows for searches for safety reasons and to preserve evidence, it does not allow for a warrantless search of a cellphone unless there are exigent circumstances. As mobile digital fingerprinting becomes more prevalent, there will not even be a need to wait for processing at the station. However, it remains arguable that technical bypasses of this type are more intrusive than a normal search of a mobile device and, hence, violate section 8 of the Charter if conducted in the absence of prior judicial authorization, even upon arrest.
Stakeholders Affected: Mobile Phone users, Law Enforcement Agents.
Rogers Communications Inc v Society of Composers, Authors and Music Publishers of Canada (Copyright, Freedom of Speech)
CanLII - Link
The case dealt with whether ISPs should pay royalties for transmitting copyrighted music. While the case did mention freedom of expression, protected by section 2 of the Charter, the Supreme Court emphasized the importance of ISPs in facilitating free expression but also held that the Copyright Board could set tariffs for copyrighted music, which some may view as limiting freedom of expression.
Stakeholders Affected: Authors, Publishers, ISPs, Music producers
Google Inc v Equustek Solutions Inc, 2017 (Deleting Infringing Copyright items on a global basis, Copyright Infringement)
CanLii - Link
The case focused on freedom of expression, a Charter right protected under section 2(b). The case involved a Canadian court order that required Google to remove certain websites from its search results, which Google argued impinged on its freedom of expression by restricting its ability to display information. However, the SCC determined that the court order did not breach Google's section 2(b) of Charter Rights and Freedoms.
Stakeholders Affected: Corporations, Search Engines
Canadian Constitution Foundation v Attorney General of Canada (Validity of Laws that Contravene Charter Rights and Freedom, Freedom of Speech, Fake News)
CanLII - Link
The Ontario Superior Court of Justice declared section 91 of the Canada Elections Act, 2000 invalid on February 19, 2021, as it violated section 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression. This provision prohibited the publication of false news during the election period, carrying significant penalties including imprisonment and fines. The provision was considered overly broad and applied to accidental or unknown falsehoods. The court found that the provision did not require knowledge of falsity and thus struck it down.
Stakeholders Affected: Lawmakers, Individuals, Politicians, Citizen Journalists
Englander v. Telus Communications Inc., 2004 FC 276 (Personal Information, Privacy)
CanLII - Link
Mathew Englander, a resident of Vancouver, lodged a formal complaint with the Privacy Commissioner of Canada (PCC) against Telus, his residential telephone service provider. The grievance centered around Telus' practice of disclosing the personal information of its customers to external entities without obtaining proper knowledge or consent from said customers. Additionally, the complaint addressed Telus' imposition of a two-dollar fee for the purpose of securing an unlisted phone number.
Upon investigation, the Privacy Commissioner determined that the complaint by Englander lacked strong merit. This assessment was supported by a rule established by the Canadian Radio-television and Telecommunications Commission (CRTC), which charges customers a two-dollar fee to have their phone number removed. Consequently, Englander took the matter to the Federal Court of Canada, seeking a formal legal pronouncement that Telus' policies were in contravention of PIPEDA, and also seeking related remedies. However, the court dismissed the application.
Upon further review, the Court of Appeal reached a two-pronged conclusion. First, the Court recognized Telus' legal entitlement, as per the CRTC regulations, to impose a fee for the removal of phone numbers. Second, the Court found that Telus had indeed violated PIPEDA by falling short of obtaining comprehensive consent. This violation emerged from Telus' failure to offer an explicit choice to customers, during the enrollment process, regarding the inclusion or exclusion of their names from the public white pages.
Stakeholders Affected: Internet Service Providers, Phone Users, Canadian Radio-television Telecommunications Commission
R v Tessling (Search and Seizure, Privacy)
CanLii - Link
R v Tessling [2004] 3 S.C.R. 432, is a leading SCC decision where the Court held that the use of thermal imaging by police in the course of an investigation of a suspect's property did not constitute a violation of the accused's right to a reasonable expectation of privacy under section 8 of the Canadian Charter of Rights and Freedoms.
Stakeholders Affected: Individuals, Law enforcement Agents
Concluded Tech-Related Investigations in Canada by Administrative Bodies
Privacy
Trimac (Privacy Investigation)
On September 29, 2022, the Office of Privacy Commissioner (OPC) published its report on Trimac’s use of an audio and video surveillance device in its truck cabins. The complainant, a truck driver employed by Trimac Transportation Services Inc. (“Trimac”), claimed the organization installed a dash camera into his vehicle that continuously recorded audio and video without his consent. The complainant was particularly concerned with the organization’s recording of audio.
CovaxOn (Privacy Investigation)
Around 360K people in Ontario were affected by a COVAXon privacy breach since the launch of the online booking system in 2021 according to reports by the Ministry of Public and Business Service Delivery on December 9, 2022.
Pending Tech-Related Investigations by Theme
Antitrust
Competition Bureau to Investigate Google and Meta - Following requests by news publishers and broadcasters urging Canada's Competition Bureau to investigate Meta's decision to block news content on its digital platforms in the country. The Competition Bureau has confirmed that it has initiated a preliminary investigation. Senior communications advisor John Power for the Bureau affirmed that the Bureau has received the request. He said, “I can also confirm that the Competition Bureau has been monitoring these developments closely and is in the process of conducting a preliminary review of this matter.”
The move comes as a response to Meta's announcement that it will permanently end news availability for Canadian users due to the Online News Act, also known as Bill C-18. This legislation requires tech giants like Meta and Google to pay media outlets for news content they use or share on their platforms. Meta's decision to block news content has been criticized as "anti-competitive" by Canadian news organizations, as it could strengthen Meta's dominant position in advertising and social media while harming Canadian journalism.
Critics of Bill C-18, including Meta and Google, argue that the law is unfair and amounts to a tax on links, without considering the traffic and exposure these platforms provide to news publishers. Meta contends that the legislation wrongly assumes it benefits more from news content than news outlets do from the platform's wider reach. The joint statement from CBC, the Canadian Association of Broadcasters, and News Media Canada accuses Meta of attempting to sideline Canadian news companies and reduce their visibility, calling for the Competition Bureau to intervene and prevent the blocking of news content.
While Meta claims that ending news availability is the only way to comply with the legislation, critics assert that this move is a strategic effort to exert dominance and avoid financial obligations. The Competition Bureau has received the complaint and is conducting a preliminary review. If Meta is found to have violated the Competition Act, it could face a fine of up to $10 million or three times the benefit gained from the anti-competitive behaviour.
Antitrust and Privacy Honourable Mentions
A number of other privacy and antitrust cases have also arisen in Canada in recent years and have potential to influence policy conversations and legislation.
Amazon ‘Abuse of Dominance’ Concerns Trigger Probe in Canada. Aug 14, 2020. Source: Bloomberg
Competition Bureau obtains court order to advance an investigation of Google. Oct 22, 2021. Source: Competition Bureau
Federal privacy commissioner investigating controversial ArriveCAN app. Jul 28, 2022. Source: CTV News
B.C. stores broke privacy laws on facial ID technology, privacy commissioner says. April 20, 2023. Source: Castanet
Canada tries to catch up with global antitrust reforms but faces domestic pushback. Feb 18, 2022. Source: Globe and Mail
Competition Bureau is likely to lose its appeal in Rogers-Shaw takeover. Jan 23, 2023. Source: The Globe and Mail
The antitrust scholar whose work laid the blueprint for a new wave of monopoly lawsuits against Big Tech. Dec 28, 2020. Source: National Post
Big Tech & Antitrust Suits. Nov 5, 2020. Source: IP Osgoode
U.S. news publishers are taking big tech to court, but in Canada, Aussie model appears more likely. Apr 27, 2021. Source: Financial Post
Conclusion
Overall, these cases collectively highlight the intricate challenges and opportunities that arise at the intersection of law and technology. They also reflect the dynamic legal landscape shaped by technological advancements, addressing complex issues ranging from intellectual property rights, labor rights, privacy, freedom of speech, and data protection along with how the legal system is evolving to address these complexities. The ongoing struggle between protecting privacy and ensuring security, exemplified by cases such as R v Spencer and R v Fearon, where courts grapple with balancing privacy rights and law enforcement requirements are some of the key themes emerging from analyzing these legal developments. The Heller v. Uber case also served as a crucial moment prompting the formulation of protective measures for gig workers and led to the Ontario legislature’s proactive steps to introduce the "Digital Platform Workers’ Rights Act".
Additionally, the Facebook v Canada privacy case has played a significant role in prompting adjustments to Canadian laws. The court's clarification in that case that the Commissioner's findings were not binding highlighted a need for more enforceable laws. Bill C-27, known as the Digital Charter Implementation Act (DCIA), addresses this issue to a certain extent by introducing provisions that would substantially alter the weight attributed to a Commissioner's findings. Specifically, Bill C-27 aims to repeal sections of PIPEDA and replace them with three new statutes—the Consumer Privacy Protection Act (CPPA), the Personal Information and Data Protection Tribunal Act (PIDPTA), and the Artificial Intelligence and Data Act (AIDA). These proposed legislative changes emphasize that decisions rendered by the Commissioner should be accorded deference, marking a significant step toward enhancing privacy protection in the digital age.
Yet while important progress has been made in recent Canadian cases and investigations that have helped shape legal standards, regulations, and practices in the digital age, many urgent questions remain about how to balance innovation and regulation. As technologies such as generative AI continue to advance rapidly, policymakers, civil society, researchers, and the judiciary will need to respond adeptly to safeguard rights while supporting economic growth and societal well-being. The decisions made today on key issues like privacy, competition, and algorithmic accountability will have far-reaching implications for the future.
Key Acronyms
AIDA Artificial Intelligence Data Act
BC British Columbia
CBSA Canada Border Services Agency
CDA Communications Decency Act
CPPA Consumer Privacy Protection Act
CRA Canada Revenue Services
CRTC Canadian Radio-television and Telecommunications Commission
DCIA Digital Charter Implementation Act
ESA Employment Standards Act
FCA Federal Court of Appeal
IP Internet Protocol
ISP Internet Service Provider
ONCA Ontario Court of Appeal
OPC Officer of the Privacy Commissioner
PCC Privacy Commissioner of Canada
PDD Personal Digital Devices
PIPEDA Personal Information Protection and Electronic Documents Act
PIDPTA Personal Information and Data Protection Tribunal Act
PPPA Protection of Public Participation Act
SCC Supreme Court of Canada
TYDL ThisisYourDigitalLife
URL Uniform Resource Locator
US United States
Version 1.0 — September 2023.
Legal Contributors: Barakat Abdulmumini and Femi Gbolahan. Editors: Onur Bakiner and Renee Black.