Posts

Karen Zvulony, Toronto Employment Lawyer, discusses the definition of wrongful dismissal and the law of firing/terminating employees in Ontario, Canada. She discusses an employees rights under the Employment Standards Act and the Common Law. She also reviews factors that could aggravate (i.e. bad faith) or mitigate (i.e. new employment) a damages award. A must read for any employee that believes they were unfairly dismissed.

By Pravnikliniky (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Privacy Law in Ontario
by Shaya Silber

As we move forward into an age where growing portions of our lives are becoming digitized, many holes are becoming apparent in these new information systems. A lot of these holes revolve around issues of personal information and privacy. Because this scenario is relatively new, many people including policy makers, academics, lawyers and so on, are grappling with the consequences; and more importantly, with avenues by which to remedy apparent wrongs.

Privacy Complaints

Generally speaking, a complaint can be launched where someone’s personal information was collected, used or disclosed in an improper manner. There are two approaches that Ontario residents can take with regards to complaints relating to violations of their privacy.

Ontario – Information and Privacy Commissioner

The first avenue is Ontario’s Information and Privacy Commissioner (IPC). Ontario’s Commissioner hears complaints that violate the Freedom of Information and Protection of Privacy Act (FIPPA), Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and in some circumstances Personal Health Information Protection Act (PHIPA).

When a complaint is filed with the IPC, one of three things may happen. The complaint can be settled, dismissed or launched into an investigation. If an investigation is launched, the IPC will examine the situation and prepare a “Privacy Complaint Report.” The report is provided to the parties, and may contain recommendations. However, the Commission does not have the authority to award damages, nor is the report binding on the parties.

At the moment, Ontario’s Information and Privacy Commissioner only deals with violations of privacy where the alleged violation was made by a government body.

It is expected that the Information and Privacy Commissioner’s will be expanded to examine beyond the scope of government violations. But for now, it does not apply to violations of privacy between individuals or businesses.

Federal – Office of the Privacy Commissioner of Canada

The second avenue is the Federal Office of the Privacy Commissioner of Canada (OPC). The OPC primarily overseas the implementation of the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Privacy Act.

Unlike its Ontario counterpart, the Privacy Commissioner of Canada’s mandate extends beyond privacy violations by government bodies. The Federal Office of the Privacy Commissioner examines complaints that allege violations by private organizations and individuals, with a few exceptions. PIPEDA provides the right for individuals to know when and why their personal information is being collected, used or disclosed. It also provides recourse for any use of personal information for a purpose other than what was consented to.

When a complaint is filed with the Federal Office of the Privacy Commissioner, an investigation may be launched. The Privacy Commissioner’s investigation is impartial with respect to the parties involved. Upon concluding the investigation, the Privacy Commissioner will prepare a report. The report may contain recommendations for the parties, and request that the organization provide notice of any action taken with respect to the recommendations. Finally, in some circumstances, the report may discuss the recourses, if any, that may be able available at the Federal Court.

In most cases, courts are unwilling to award any monetary damages pursuant to violations of PIPEDA. However, in a recent case, the Federal Court awarded $5,000.00 to an individual who was denied a loan due to incorrect information provided by the credit bureau. This seems to indicate a new approach to privacy law in Canada. It will be interesting to see how future cases apply damages in these circumstances.

By www.Pixel.la Free Stock Photos (cold-light-alcohol-glass) [CC0], via Wikimedia Commons

The Law of Impaired Driving in Canada

Drinking and driving in Canada is a crime. Section 253 of the Criminal Code of Canada sets out the offence of impaired driving (drinking and driving) in Canada:

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

A person is guilty of impaired driving where he uses a motor vehicle while under the influence of alcohol or a drug. The person must either use the vehicle while impaired or after his blood alcohol level was 80mg of alcohol to 100ml of blood (0.08).

Proving Impaired Driving

The Crown must prove two basic things: first, that the accused used the vehicle; second, that the accused did so while impaired (intoxicated). These elements must be proved beyond a reasonable doubt. A person will have used the motor vehicle if he either operated the vehicle, or he had care or controlof the vehicle. It does not matter whether the vehicle was in motion at the time of the incident.

Care or Control of the Vehicle

The term care or control has been defined in law as follows:

Care or control may be exercised […] where an accused performs some act or series of acts involving the use of the car, its fittings or equipment […] whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent. (Ford v. The Queen)

In one case, an accused was found guilty of impaired driving where the car was parked but the motor was running to keep warm.  In another case, an accused was acquitted of impaired driving where he was found in the front seat in a sleeping bag.  The court acquitted him because lying in the sleeping bag kept him from being in de facto control of the vehicle.  Courts judge care or control by the potential danger that may be posed to the public at the time of the incident.

Impairment or Intoxication

A person either has to have consumed enough alcohol or drugs so that his ability to drive was impaired, or to have a blood alcohol level of 0.08 at the time of the offence. Any degree of impairment, whether slight, great, or in between, is enough to meet the first part of this element, as long as the impairment relates to the accused’s ability to drive. A finding of a 0.08 blood alcohol level is sufficient to meet the second part of this element, whether or not the accused intended to drink above the legal limit.

Involuntary Intoxication

A defence available to an accused for impaired driving is the defence of involuntary intoxication. This defence has been defined in law as follows:

Involuntary intoxication may occur: (a) where a person is made intoxicated by the fraud or stratagem of another, e.g., where, unknown to him, someone has placed a drug in his drink or (b) where he has taken a drug bona fide prescribed by his physician without being aware of the effect. (R. v. King)

In a leading case, an accused fell unconscious while driving after he had been given an anesthetic at the dentist’s office. He had been warned about the drug’s effects only after it was administered. The court acquitted him, reasoning that he could not have been in a state to appreciate that his driving ability would be impaired. Where the person did not know, or could not have known, that he was consuming something that would cause his ability to drive to be impaired, the defence of involuntary intoxication will result in an acquittal.

Sentencing and Punishment

Courts look at various purposes and factors when deciding which sentence is appropriate in the circumstances. Among the relevant factors are the seriousness of the offence, the accused’s condition at the time of the incident, the accused’s living circumstances and responsibilities, the community’s safety, and the accused’s past record. This list is not exhaustive, and the facts of each case determine the outcome.

A convicted offender will typically face a fine or imprisonment, together with a driving prohibition, and a driver’s license suspension.

high blood-alcohol level is an aggravating factor in considering a sentence but will not always mean a severe punishment.  In one case, a defendant was convicted of a first time offence of driving with a blood-alcohol level of 0.18. The court sentenced him to pay $600 and a one-year driving prohibition, despite the high blood-alcohol level, considering his living conditions and responsibilities.  In another case, a defendant was convicted of his tenth impaired driving offence. The court sentenced him to four and a half years of imprisonment, looking at his dangerous conduct at the time of the offence, and the fact that this was his tenth conviction.