Business Law

Are emails at work confidential or privileged?

A reader wondered about communicating with her lawyer from work.  In particular, she wondered if such communications are confidential or privileged.

Generally, communications between a client and her lawyer are subject to solicitor-client privilege, and may not be revealed in court.

However, if the client contacts her lawyer from work, and in particular uses her work smartphone, work computer or her employer’s Internet connection, her employer may have access to her communications with her lawyer.   This applies even if the client uses her work computer but uses her own web-based email (like Gmail or Hotmail) to send and receive emails with her lawyer.

This is because most employers have an information technology policy which allows the employer to have access to all data stored on an employee’s work computer, as well as access to all data transfers in and out of an employee’s work computer.  There is likely a similar policy with respect to smartphones issued by the employer as well.

If an employee absolutely needs to contact a lawyer while at work, I recommend that the employee use their own personal email account on their personal smartphone to do so.

And please remember to make sure the personal smartphone is using your cellular provider’s network, and not the employer’s wifi network.

Setback for creation of Canada wide securities regulator

In the United States, the Securities and Exchange Commission (SEC) regulates capital markets, including the stock market throughout the entire country.

In Ontario, the Ontario Securities Commission regulates the Toronto Stock Exchange (TSX), while in BC the British Columbia Securities Commission regulates the Vancouver Stock Exchange (VSE). However, there is no single capital markets regulator covering all of Canada.

A nationwide regulator covering all of Canada would ensure that Canada’s financial markets are regulated with the same laws and enforced with the same rigor, fueling Canada’s economy and maintaining Canada’s financial stability. With that aim in mind, the federal government has been trying to create a nationwide securities regulator for Canada for some time, under its proposed Securities Act.  Unfortunately, the creation of a nationwide securities regulator was dealt a setback by the Supreme Court of Canada in the Reference re Securities Act released today.

The problem is that under the Canadian constitution, the federal government has a general power to regulate trade and commerce but each provincial government has the sole power to regulate matters over property and civil rights and matters of a local or private nature within their own province.  The Court held that as it is currently drafted, the proposed Act is not chiefly aimed at genuine federal concerns, but is principally directed at the day‑to‑day regulation of all aspects of securities and is thus unconstitutional.

The Court however recognized that there are specific aspects of the Act aimed at addressing matters of genuine national importance that is distinct from provincial concerns, including the management of systemic risk and national data collection, which the provinces, acting alone or in concert, lack the constitutional capacity to sustain a viable national scheme.

The next step for the federal government then would be to redraft the Securities Act taking into account the Supreme Court’s ruling, and hopefully reintroduce it later on in 2012.  A nationwide regulator is important for Canada as a whole, and the federal government should make it a priority in the new year.

BC court confirms website terms of use enforceable as legal contracts

In Century 21 Canada Limited Partnership v. Rogers Communications Inc., 2011 BCSC 1196, the BC Court held that Rogers infringed Century 21’s copyright and terms of use by scraping Century 21’s real estate listings from its website and incorporating the listings into the real estate search engine Zoocasa.

Starting in 2008, Zoocasa copied photos, property listings, and pricing from Century 21’s website and provided hyperlinks that directed a user to specific pages of the Century 21 Website that contained the property listings.  Despite letters from Century 21, Zoocasa chose not to stop scraping until early 2010, nearly 2 and a half years after Century 21 first advised Zoocasa they did not consent to Zoocasa’s activities and advised them of the Century 21 Terms of Use and Zoocasa’s breach of these terms.

The court considered the enforceability of website terms of use as a contract, and explored various analogous software licences and contracts created over the Internet such as shrink wrap agreements, click wrap agreements, and browse wrap agreements.  The court confirms that website terms of use are enforceable as legal contracts at para 119:

The act of browsing past the initial page of the website or searching the site is conduct indicating agreement with the Terms of Use if those terms are provided with sufficient notice, are available for review prior to acceptance, and clearly state that proceeding further is acceptance of the terms.

In addition, the court confirms that liability is not avoided by automating the website scraping as the scraping program must initially be set up manually.

Changes to rules regarding .ca domain disputes

The Canadian Internet Registration Authority (CIRA) recently announced changes to the CIRA Domain Name Dispute Resolution Policy (CDRP). The CDRP, which governs disputes over .ca domain names alleged to be registered in bad faith, has been in effect since 2002.

Some of the changes include:

  • Bad Faith “Legitimate Interest Factors” are now Non-Exhaustive.
  • Bad Faith Factor of Commercial Gain Added.
  • Electronic Filing of complaints and respondent submissions.
  • Separation of Filing Fees from Panellist Fees.
    • “Previously, Complainants were required to pay the entire $4,000 filing fee upon filing a CDRP complaint. Under the revised CDRP Rules, Complainants are now only required to pay the Dispute Resolution Provider fee of $1,000 to file a complaint.”

The revised CDRP rules come into effect August 22, 2011.

43.849382-79.35245

The New Consumer Product Safety Act

Late last year, the Canada Consumer Product Safety Act was enacted into law, as part of the government’s effort to protect the public from dangers to human health or safety from both imported and domestic consumer products.  The Act is expected to come into force on June 20, 2011.

Companies that manufacture, import, advertise or sell goods such as baby walkers, kite strings that may conduct electricity, lawn darts, and bisphenol A baby bottles need to be aware that this Act specifically prohibits these goods for sale in Canada.

Other notable aspects of this Act include a duty to report health and safety incidents and the power for mandatory recall orders, which will be discussed in a later post.

Operating a business together

You and a buddy want to operate a business, and both of you want to save some money. You’re both informal people eager to get on with business, so both of you simply start selling stuff. 

You’ve just entered into a partnership with your buddy.  As partners, each of you is liable to the full extent of your personal assets for the debts and other liabilities of the partnership business.

That sounds scary, but a partnership is not automatically a bad thing.  Depending on the particular circumstances, a partnership may be the best way to do business because the law may not allow you to incorporate.  For example, many investment funds operate as a partnership, and some law firms operate a special form of partnership as well.

What is important is that both of you know that you’ve created a partnership, and that both of you wanted it to be that way. 

A partnership may be created even without an express partnership agreement.  Whether a partnership exists is determined objectively by a court.

In fact, an express provision in a written agreement denying that the you and your buddy are NOT partners may not be conclusive proof in showing that a partnership does not exist.

The best way to show that you’re not in a partnership?  Incorporate.