Articles by our Lawyers

The Importance of a Well Drafted Termination Clause

Wood v. Deeley: Ontario Court of Appeal Refuses to Enforce Poorly Drafted Termination Clause By Toronto Employment Lawyer, Karen Zvulony An employment agreement, which contains a well drafted and statutorily compliant termination clause can be a useful tool for employers to limit their liability in the event of a termination without cause. The recent Ontario […]

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest

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Below is Section 137.1 of the Courts of Justice Act. This is Ontario’s Anti-SLAPP law. For the official version check  the E-Laws site.

Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

Definition, “expression”

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

No dismissal

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3.

No further steps in proceeding

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3.

No amendment to pleadings

(6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding,

(a) in order to prevent or avoid an order under this section dismissing the proceeding; or

(b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3.

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Procedural matters

Commencement

137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced. 2015, c. 23, s. 3.

Motion to be heard within 60 days

(2) A motion under section 137.1 shall be heard no later than 60 days after notice of the motion is filed with the court. 2015, c. 23, s. 3.

Hearing date to be obtained in advance

(3) The moving party shall obtain the hearing date for the motion from the court before notice of the motion is served. 2015, c. 23, s. 3.

Limit on cross-examinations

(4) Subject to subsection (5), cross-examination on any documentary evidence filed by the parties shall not exceed a total of seven hours for all plaintiffs in the proceeding and seven hours for all defendants. 2015, c. 23, s. 3.

Same, extension of time

(5) A judge may extend the time permitted for cross-examination on documentary evidence if it is necessary to do so in the interests of justice. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Appeal to be heard as soon as practicable

137.3 An appeal of an order under section 137.1 shall be heard as soon as practicable after the appellant perfects the appeal. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Stay of related tribunal proceeding

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal. 2015, c. 23, s. 3.

Notice

(2) The tribunal shall give to each party to a tribunal proceeding stayed under subsection (1),

(a) notice of the stay; and

(b) a copy of the notice of motion that was filed with the tribunal. 2015, c. 23, s. 3.

Duration

(3) A stay of a tribunal proceeding under subsection (1) remains in effect until the motion, including any appeal of the motion, has been finally disposed of, subject to subsection (4). 2015, c. 23, s. 3.

Stay may be lifted

(4) A judge may, on motion, order that the stay is lifted at an earlier time if, in his or her opinion,

(a) the stay is causing or would likely cause undue hardship to a party to the tribunal proceeding; or

(b) the proceeding that is the subject of the motion under section 137.1 and the tribunal proceeding that was stayed under subsection (1) are not sufficiently related to warrant the stay. 2015, c. 23, s. 3.

Same

(5) A motion under subsection (4) shall be brought before a judge of the Superior Court of Justice or, if the decision made on the motion under section 137.1 is under appeal, a judge of the Court of Appeal. 2015, c. 23, s. 3.

Statutory Powers Procedure Act

(6) This section applies despite anything to the contrary in the Statutory Powers Procedure Act. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

Application

137.5 Sections 137.1 to 137.4 apply in respect of proceedings commenced on or after the day the Protection of Public Participation Act, 2015 received first reading. 2015, c. 23, s. 3.

Section Amendments with date in force (d/m/y)

2015, c. 23, s. 3 – 03/11/2015

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About Long Term Disability Claims

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Toronto Disability lawyer gives an overview of Long Term Disability Insurance Policies

Online Harrasment

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Toronto internet lawyer, Gil Zvulony was recently interviewed by City News about the laws dealing with online harassment and cyber bullying.

Top Ten Tips for Internet Defamation Victims

This article explores ten essential tips for dealing with defamation on the internet. It provides some simple and practical advice to people who have been libeled on the internet, including how to determine the severity of the defamation, whether the posting is defamatory, and whether it is worth suing over.

Predators on Dating Sites

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Gil Zvulony spoke to CityNews about the problem of predators and pedophiles using dating websites to lure children. Gil cautioned that many dating websites do not verify the identity of their users. He also, highlighted that the law, as it currently stands, does not require dating sites to actively pre-screen their users.

Privacy and Health Records

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Toronto privacy lawyer, Gil Zvulony appeared on CHCH’s Square Off to discuss the problem of unlawful disclosure of health records and privacy breaches in hospitals.

Can you opt out of Facebook’s Terms of Use?

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Toronto Privacy lawyer, Gil Zvulony spoke to Dan Misener of CBC Radio regarding a Facebook status update that has gone viral (radio segment embedded below). The update purports to prevent Facebook from using the user’s intellectual property and private information. These types of updates have been going around for some time.  The latest looks like this:

Due to the fact that Facebook has chosen to involve software that will allow the theft of my personal information, I stated: at this date [insert date] in response to the new guidelines of Facebook, pursuant to articles L.111, 112 and 113 of the code of intellectual property, I declare that my rights are attached to all my personal data drawings, paintings, photos, texts etc…. published on my profile and my page. For commercial use of the foregoing my written consent is required at all times.
Those who read this text can do a copy/paste on their Facebook wall. This will allow them to place themselves under the protection of copyright.
By this statement, I tell Facebook that it is strictly forbidden to disclose, copy, distribute, broadcast, or take any other action against me on the basis of this profile and or its content. The actions mentioned above also apply to employees, students, agents and or other personnel under the direction of Facebook.
The content of my profile contains private information. The violation of my privacy is punished by the law (UCC 1-308 1-308 1-103 and the Rome Statute).
Facebook is now an open capital entity. All members are invited to publish a notice of this kind, or if they prefer, can copy and paste this version.
If you have not published this statement at least once, you tacitly allow the use of elements such as your photos as well as the information contained in the profile update.

Do these Status Updates have any Legal Effect?

Do these status updates help protect your information?  Do they have any legal effect? The short answer is no.  The reason is that a person cannot unilaterally change the terms of a contract.  A contract, by definition, requires the agreement of the parties.

When people first sign up to Facebook they are asked to agree to a contract or as Facebook calls it: “Terms“.  This type of contract, like most contracts people enter today, is called a “standard form contract“.  This means that the terms are standard to all who wish to sign up.  The terms are not negotiable.  It’s a “take it or leave it” option.  Facebook’s contract contains many terms regarding how Facebook uses your information and intellectual property.  It also contains terms on how the contract between the user and Facebook may be changed.

But Facebook Changes Their Contracts Unilaterally?

From time to time, Facebook changes its Terms. How can Facebook change it’s terms unilaterally, when a user cannot?  Because the User agreed to this amending formula at the time of signing up. In this sense, Facebook’s amendments are not unilateral.  The Facebook Terms state that in most cases they will give a user notice that the Terms will change and that  “Your continued use of Facebook following changes to our terms constitutes your acceptance of our amended terms.”  In other words, by using Facebook, you agree to allow them to change their Terms.

How to Protect Your Intellectual Property From Facebook?

Users who are concerned about how Facebook uses their data, should take some time to learn about Facebook’s policies.  Facebook has become more transparent in this regard.  Learning about Facebook’s policies may alleviate some concerns.

Ultimately, Facebook is a business.  And just like any business who makes you an offer, you can take it or leave it.  If you are unhappy with Facebook’s Terms, a better option than pasting legally meaningless jargon is to cancel your Facebook account.

Privacy Breaches Are Usually Not Worth Much Money

Toronto Privacy Lawyer Gil Zvulony recently spoke to Canadian Lawyer Magazine regarding the recent decision in McIntosh v. Legal Aid Ontario.  In that case the court awarded the plaintiff $7500 in damages for the tort of intrusion upon seclusion.

Gil Zvulony believes that the result is typical in that relatively minor privacy breaches will not result in a windfall damages award.  Most minor privacy breaches will fall in the realm of small claims court jurisdiction.  At the time of writing, all monetary claims under $25,000 must be brought in the Small Claims Court.  There can be negative consequences if a plaintiff recovers an amount within the monetary jurisdiction of the Small Claims Court.  In such a case, the court may order that the plaintiff shall not recover any costs.  Such an outcome can result in a plaintiff paying more in legal fees than in what is actually recovered by way of judgment.   The lesson here is to have a hard look at the amount of damages in privacy breaches before commencing an action.

The article in Canadian Lawyer Magazine can be found here: Legal aid employee to pay $7,500 for intrusion upon seclusion