This year’s 19th annual golf tournament held at The Marches Golf Club in Kanata kicked off this year's Conference. The Marshes Golf Club was unique in that it offered both a full 18 hole course (“Marshes”) as well as a 9 hole executive par three course (“Marchwood”).  It was a perfect sunny day and we had **** golfers at all levels who enjoyed this fun event.

the title sponsor, put on another great tournament and was followed by a delicious **** served on the ****. Golfers had an excellent opportunity to network while enjoying refreshing drinks and delicious food. It remains a great way to relax and mingle with colleagues, sponsors and friends.

ILCO wishes to thank again Ricoh for supporting this golf tournament.

Congratulations to

Winning Team - Marches
Dillon Craig, Jackie Sievert, Dominic Cutri

Winning Team - Marchwood
Karen Ethier, Danielle Lepine, Bridget Forberg, Cory Lefebvre

On January 1, 2018, the section of Ontario’s Employment Standards Act, 2000 dealing with public holiday pay is revised. The new method for calculating public holiday pay comes into effect. Are you ready to calculate public holiday pay for the January 1, 2018, public holiday?

Calculation of public holiday pay (also known as statutory pay) will not be the same for entitlements for the New Year’s Day public holiday pay as it was for the calculation of 2017 Christmas Day and Boxing Day.

The amount an employee is entitled to be paid for the January 1, 2018, public holiday, is equal to:

Total amount of regular wages earned

in the pay period immediately before Jan. 1, 2018

÷ no. of days employee worked in that period

For example, if employee, John, earned $500 for the pay period December 24 to 30, 2017, and John worked 4 days during that period, he would be entitled to $125 in public holiday pay for January 1, 2018 ($500 ÷ 4 = $125).

OLD calculation:  John would have had to work on the last scheduled work day before January 1, 2018, and the next scheduled work day after January 1, 2018, to be entitled to public holiday pay. So, if John did not show up for work on the day before or after the public holiday, without reasonable cause for missing the day, he would not be entitled to public holiday pay. Also the calculation was different. The public holiday was calculated on the amount of earnings for the four weeks prior to the public holiday divided by 20.

What if the employee did not work during pay period before January 1, 2018?

If the employee was on vacation or on a leave under section 50 of the Employment Standards Act, 2000, during the entire pay period immediately before the January 1, 2018, public holiday, then you calculate the public holiday pay on the pay period before the start of the leave or vacation.

What if you have a new employee that started work during the pay period that includes January 1, 2018?

If you have a new employee that was not employed during the pay period immediately before the January 1, 2018, public holiday, then you calculate that employee’s public holiday pay on his/her regular wages earned in the paid period that includes the public holiday divided by the number of days the employee worked in that period.

There are a number of additional changes to the Employment Standards Act, 2000 many of which are taking effect on January 1, 2018, such as vacation time increase, leaves of absence, and personal sick days. Are you ready?

Millennials are a loosely defined group of people (those born approximately between 1981 to 2001) who are now beginning to enter the workforce and acquire their own assets. With an aging population it is inevitable that there will be a significant wealth transfer between baby boomers and millennials over the next several decades. In order to plan for this, the younger generation should turn their mind to drawing up a Will, giving careful consideration to who they wish to benefit and take steps to protect family wealth and/or an inheritance. Not only is succession planning important, a Will clearly outlines their intentions and alleviates stress for families if an unexpected death occurs.

Why is it important to prepare a Will when young? A young person who has no dependants and only plans to leave their assets and personal effects to their parents may view the expense of a Will as unnecessary as their wishes can be addressed on intestacy under the Ontario Succession Law Reform Act. That being said, a Will safeguards against changing circumstances and as well is an important educational tool in increasing financial literacy. A millennial may not own significant property currently, but may expect to do so in the future, or decide to have children. In Ontario and many other jurisdictions, marriage revokes a prior Will, unless made in contemplation of marriage. Having Wills in place as a young couple will provide protection if either were to die unexpectedly. As well, if they are living common law, under Ontario legislation, unless they do so under their Will, a common law partner is not entitled to any share of the deceased partner's estate on an intestacy.

Not only is a Will a safeguard, a Will allows one to decide who to put in charge, how to allocate money, and to whom. What intestacy laws do not contemplate is carrying out particular wishes. This includes:

• Legacies and bequests of a specific property to family, friends, and/or charities;
• Multiple residual beneficiaries of their estate;
• Funeral and burial wishes;
• Executor and trustee appointments;
• Insurance and TFSA/RRSP designations;
• Trust provisions for children (ex: 1/2 at 25 and the remainder at 30) and a spouse (ex: a spouse and/or family trust); and
• Guardians of minor children.

Another consideration for a tech-savvy generation is digital assets and accounts. For a social media obsessed generation, very few understand what happens to their accounts and assets on death. Some social media entities, such as Facebook, have privacy rules or terms of use that outline management of the account on death, whereas others are less specific. To ensure there are no issues with access and management, maintaining an accessible account and password list is helpful. It is also important to include a specific designation regarding digital assets and accounts in their power of attorney for property and Will to provide the attorney or executor with management power.

Incapacity planning is also key to the estate planning process. As a young healthy individual in their twenties, incapacity is not at the forefront of their mind, but accidents or unexpected illness do happen. Having the freedom to appoint their chosen attorney, but also make it easier on their family by preventing a costly guardianship application to the court, is important. Powers of attorney for property and personal care should not be overlooked. By the time they become necessary, it may be too late.

We encourage millennials to see postmortem planning as a long-term investment in their future and a preventative measure for unanticipated circumstances. Having this conversation early with the younger generation will only make this topic easier in the future and is an important stepping stone to taking control of one's future.

We’ve reached a milestone in this country! 2018 marks the 50th anniversary of Canada’s first federal Divorce Act, and a lot has changed in family law since it was passed.

The Divorce Act established a uniform divorce law across Canada. Before that, there were different laws relating to divorce in different provinces. This Act introduced the concept of permanent breakdown of marriage as grounds for divorce as well, making it much easier for couples, and women in particular, to part ways. Before the Act, a husband could petition for divorce on the grounds that his wife had committed adultery, but a wife could only petition for a divorce based on adultery combined with other offenses.

As our values, expectations and experiences change, so too do the laws that guide us. Below are three other significant changes that have improved the way in which Ontarians resolve divorce and family law issues.

Expansion of the Family Court

In Ontario, family law matters are heard in the Superior Court of Justice, the Ontario Court of Justice, or the Family Court branch of the Superior Court of Justice. The issue in dispute, and where parties are located within the province, will determine which court they attend.

The Superior Court of Justice is the general court for the entire province. It has jurisdiction over criminal, civil, and family cases. It cannot take cases relating to adoption and child-protection matters, except in limited circumstances.

The Ontario Court of Justice hears only those disputes that are governed by provincial law. It also deals with family and non-family matters. In the family realm, it will hear cases regarding child custody and access, child and spousal support matters, as well as child protection and adoption hearings. It does not deal with divorce or divorce-related issues.

The Family Court branch however, is unique in that it is authorized to hear all family law matters. Sometimes referred to as the Unified Family Court, it began as a pilot project in Hamilton in 1977. By 1999, the Family Court was a fully integrated component of the Superior Court of Justice, and 17 Family Court sites were in effect. All 17 sites remain active today.

Why This Change Matters

Unified Family Courts save Ontarians time, and promote access to justice by allowing parties to go to one court to fully resolve their legal issues. It can be very frustrating for individuals to have to switch back and forth between courts, not to mention costly and time-consuming.

Recommendations have been made to expand Unified Family Courts provincewide, but reaching that goal is not a one-step process.

Family Law Rules

The Family Law Rules are specialized rules of procedure for family law cases. They apply in all courts that deal with family cases. They were introduced in 1999 in Family Courts and the Ontario Courts of Justice, and were expanded to apply in all Superior Courts of Justice in 2004.

As a result, there is now one set of court rules for all family cases at the trial level across the province.

Why This Change Matters

Litigants can and should expect fairness and justice from Ontario family court judges, and the Family Law Rules ensure that fairness is woven into court processes.

Furthermore, these rules make it easier for self-represented parties to navigate the legal system. More and more Ontarians are having to represent themselves in court, and these rules make it easier for them to understand, on a step-by-step basis, how their case will be handled and resolved.

Child Support Guidelines

Child support is not determined arbitrarily. It is calculated based on a set of guidelines. The Federal Child Support Guidelines, which were passed in 1997, use various formulas that incorporate factors such as the income of each of the parents, and whether the child lives primarily with one of them.

It’s important to note that federal law applies to child support ordered in cases of divorce, while provincial law applies to child support ordered in all other cases, for example, when the parents are separated or were never married. Provincial law also applies to all child support agreements that are not part of a court order. To maintain consistency, Ontario adopted provincial guidelines under the Family Law Act that mirror the federal ones at the end of 1997.

The main objectives of the federal and provincial Guidelines are to establish a fair standard of support for children from both parents after separation, to reduce conflict and tension between parents by making the calculation of child support orders more objective, to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement, and to ensure consistent treatment of spouses and children who are in similar circumstances.

Why This Change Matters

Since Ontario changed its Family Law Act, there is one consistent method of calculating child support for all Ontario families. It does not matter if parents are divorced, separated or never married. It also eliminates the element of surprise for parents. Finally, the Guidelines make it possible for parents to set up their own support agreement, provided it is fair to the child.

Change can be hard when we’re talking about a set of rules or a system designed to regulate an entire province, but it can also be very good, and who said good things come easy.   

While the approach may be out of date, the law still treats animals as property, Toronto family lawyer Jennifer Samara Shuber tells AdvocateDaily.com.

Shuber, a lawyer with Beard Winter LLP, says a string of decisions from across the country confirming that pets are viewed no differently than furniture or personal belongings in divorce proceedings can be disturbing to animal lovers.

“There are people who believe that statutes need to reflect the new reality of how people view their pets, which is more like part of the family. It’s an ongoing debate, but for now, the law is the law and pets are treated as property,” she says. “It’s a bit of an outmoded view that whoever shelled out the money for the pet is the one who gets to keep it, but whether it’s a dog, a ring or a car, they’re all treated the same way.”

As a result, she says pet owners may wish to enter into contracts akin to prenuptial agreements, laying out what should happen to animals in the event of a separation.

“People are reluctant to do that because they’re worried it forecasts a breakup,” Shuber says.

Animal rights advocates have hailed a Newfoundland and Labrador decision as a step forward in the debate.

While the majority of the three judges on the province’s Court of Appeal reiterated the traditional legal approach by ruling that an ex-couple’s dog should go to the boyfriend because he had paid for it, a dissenting member of the panel said she would have awarded the girlfriend co-ownership after she argued she was the pet’s primary caregiver.

"Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them," the dissent reads.

Shuber says advocates may also be boosted by existing distinctions drawn in family law disputes over items of property with sentimental value to one party.

“If a family heirloom on the wife’s side was gifted to the couple when they were married, a court will consider the emotional attachment she may have if there’s a fight over ownership,” she explains.

But Shuber says pet owners who go to court in the hopes of finding someone who will treat their pet like a child are still likely to receive short shrift from many judges. For example, in a 2016 Saskatchewan case , a woman asked the court to order that two dogs owned with her estranged husband should stay with her after their separation.

Labelling him a “cat person,” the woman conceded her ex should be granted “reasonable access” to the dogs for limited visits on agreed days, while the husband countered with an offer that they each keep one but that she could choose which dog she preferred.

However, Queen’s Bench Justice Richard Danyliuk used his decision to reject the “custody approach” to pets altogether.

“I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me,” he wrote. “I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly, that is what these parties did. But that choice does not alter the law that pets are property.

"My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.”

The judge then went on to describe the whole dispute over the pets as “wasteful” of scarce judicial resources that should be discouraged.

“I urge both parties to attempt to resolve this matter prior to the necessity of a pre-trial conference and trial. Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants,” Danyliuk added.

On June 12, 2018, the Office of the Privacy Commissioner (“OPC”) [1] released its report [2] into Profile Technology Ltd.’s (“Profile Technology”) use of “publicly available” Facebook profiles. The OPC concluded that Profile Technology had not obtained the necessary consents from individuals whose Facebook profiles they were collecting for the purposes of establishing its own social networking website. The case is an important one since it sheds light on what limits may be imposed by Canadian privacy regulators on the use of personal information that may be available to the public from time-to-time on social networking platforms.

Background

Profile Technology, a New Zealand-based company, had been retained by Facebook in 2007 to provide advanced search functions for its site. Specifically, it indexed the public parts of users’ profiles – in a manner that is similar to how Google and other search engines index information on the internet more broadly. To this end, Profile Technology claimed that it was provided unlimited access by Facebook to information that its users had consented to make public and accessible to search engines.

Profile Technology subsequently used the information that it had collected from Facebook to build its own social networking site, never seeking the consent – implied or express – of the users whose profiles were being migrated and incorporated into its site.

Subsequently, five Canadian individuals filed complaints with the OPC, alleging that Profile Technology had collected and used their personal information without their knowledge and consent. These complainants explained: (i) in certain circumstances, they were unable to have their personal information removed from the website; (ii) the personal information used by Profile Technology was not accurate; and (iii) Profile Technology had inadequate procedures in place to receive and respond to complaints and inquiries about its policies and practices relating to the handling of personal information.

Findings

Profile Technology Did Not Have Users’ Consent

The Canadian complainants indicated to the OPC that they learned that their information appeared on Profile Technology’s website after they conducted internet searches for their own names.

The complainants pointed out in their claims that Profile Technology never sought their consent for the collection and use of their personal information. Interestingly, Profile Technology argued that such information was “publicly available” and that it was not required to obtain consent of the users. Further, Profile Technology claimed that Facebook was responsible for obtaining permission to make the information public and available to search engines. It relied on Facebook’s privacy policies from 2009 and 2010 and Facebook’s blog post from 2007 to assert that notice had been given to users that their public information may be found by external search engines.

More specifically, Profile Technology claimed that publicly accessible Facebook profiles should be considered a “publication” under PIPEDA’s Regulations Specifying Publicly Available Information [3] (the “Regulations”). Subsection 1(e) of the Regulations refers to “personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.” Profile Technology submitted that a person who places information on their Facebook profile “publishes” the information, making Facebook profile information a “publication” for the purposes of the Regulations.

The OPC flatly rejected Profile Technology’s assertion that profile information is “publicly available”, such that is exempt from the requirement to obtain consent. Even if the OPC accepted that Facebook users’ consent for its original collection of profile information for the purposes of offering search engine services, it did not have consent to subsequently use that information for purposes of creating and populating its own social networking website. [4]

Not All Public Information is “Publicly Available”

The OPC noted that PIPEDA recognizes that not all information in the public domain will be considered “publicly available”. In this regard, there is an acknowledgment that information that may be in the public domain is still worthy of privacy protection. Treating a Facebook profile as a publication would be counter to the intention of PIPEDA, undermining the control users otherwise maintain over their information at source.

The OPC concluded that the personal information at issue was not publicly available within the meaning of PIPEDA. [5] As such, the respondent was required to ensure individuals’ consent for its use of their personal information copied from Facebook and posted on its website.

OPC Recommendations

The OPC recommended that, among other things, Profile Technology remove from its website and delete from its records, all individual profiles and groups associated with any Canadian (or Canadians), including those associated with the complainants. Profile Technology did proceed with the bulk deletion of Canadian data.

Prior to issuance of the OPC report, Profile Technology had removed the profiles from its website. As of April 1, 2018, the website simply consisted of a notice page titled “Profile Engine has now been donated to the Internet Archive (31st March 2018)”. On April 9, 2018, the OPC observed that the files were becoming increasingly difficult to find via search engines (which had presumably de-indexed the links to the torrent files [6]) but the OPC was still able to find the torrents on the dark web.

Key Takeaways

The OPC’s decision in the Profile Technology case is important given that an increasing number of individuals regularly share their personal information with multiple social networking websites. As these websites become increasingly sophisticated and use third party vendors to get insights about their users (e.g., through the use of analytics), they provide vendors access to their users’ personal information. Implied consent in lengthy privacy policies that very few users read and understand is not sufficient from a Canadian privacy standpoint, as stated by the OPC in its recently released Guidelines for Obtaining Meaningful Consent. [7] Accordingly, to the extent that a vendor is relying on the consent obtained by the entity collecting the personal information in the first instance, it should ensure that it has taken necessary steps to demonstrate – e.g., through contractual language – that the requisite consents were obtained for the purposes contemplated by the vendor.

Another key takeaway is that simply because a third party may be able to publicly access an individual’s personal information does not mean that it is “publicly available”, as defined in PIPEDA and the Regulations. In fact, information that may be in the public domain is still worthy of privacy protection and appropriate consents should nonetheless be obtained.

From a jurisdictional standpoint, Profile Technology was unsuccessful in arguing that the OPC had no jurisdiction on that basis of the company not having a physical presence in Canada. PIPEDA has extraterritorial scope if a real and substantial connection can be established. That said, in cases where the OPC’s jurisdiction may be established, enforcement is another matter, one which was not tested in this case. However, the extraterritorial scope issue is likely to be an important topic as the EU’s General Data Protection Regulation [8] and the California Consumer Privacy Act of 2018 [9] both have extraterritorial reach.

[1] The Office of the Privacy Commissioner of Canada is an agent of the Canadian Parliament responsible for the protection and promotion of privacy rights. It oversees compliance with the Privacy Act, which covers the personal information-handling practices of federal government departments and agencies, and the Personal Information Protection and Electronic Documents Act (“PIPEDA”), Canada’s federal private-sector privacy law.

[2] Office of the Privacy Commissioner, Complaints under the Personal Information Protection and Electronic Documents Act (the “Act” or “PIPEDA”) against Profile Technology Ltd., PIPEDA Report of Findings #2018-002, June 12, 2018, available online.

[3] Regulations Specifying Publicly Available Information, SOR/2001-7.

[4] Supra note 3, para 86.

[5] Supra note 3, para 95.

[6] A “torrent” is a file that facilitates efficient dissemination of the file via peer-to-peer sharing, whereby any person who “replicates” (i.e., downloads) a file can then “seed” it (i.e., make it available for download by others).

[7] Office of the Privacy Commissioner of Canada, Guidelines for Obtaining Meaningful Consent, May 2018, available online.

[8] General Data Protection Regulation, (EU) 2016/79, available online.

[9] California Consumer Privacy Act 2018, Bill No. 375, Chapter 55, June 29, 2018, available online.