Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Privacy ruling long overdue I n many ways, last week's Jones v. Tsige ruling on the tort of invasion of privacy was long overdue. With so much of our financial information stored online, the advent of cloud computing, and the privacy implications of social media, Canadians are more vulnerable than ever before, particularly in light of the legislative void given that, as the Ontario Court of Appeal noted in its ruling in Jones, "existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right." So while the appeal court may have been flexing its legal muscle in pronouncing on the tort of intrusion upon seclusion, it was high time for some authoritative body to provide clarity on the issue. In Jones, Winnie Tsige, a colleague of Sandra Jones at the Bank of Montreal, accessed her banking records on 174 occasions over four years. Tsige had been in a relationship with Jones' former husband and become involved in a finan- cial dispute with him. In setting aside the summary judgment dismissing Jones' action, Justice Robert Sharpe, writing for a unanimous appeal court panel, noted the conflicting and sometimes vague direction on the existence of a privacy tort in everything from Ontario case law to jurisprudence on the issue under the Charter of Rights and Freedoms. Despite the lack of clarity, he declared: "In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society." They were wise words, indeed. Now the task is for the courts and, ideally, the legislatures, to define the scope of that tort more precisely. While Ontarians need added protections for their privacy, it would be a mistake to broaden them so much such that people with axes to grind against their adversaries start tak- ing them to court with frivolous claims. Warring spouses who snoop on each other are an example of a scenario where there should be protec- tions, but it's important to ensure reasonable appli- cation of the tort. In an age of social media, unfor- tunately, people will snoop on each other to some degree. Plaintiffs, then, should have to show grievous conduct and significant and measurable harm. The appeal court, of course, noted those issues in its ruling in Jones. It also emphasized that damages for the tort of inclusion upon seclusion should be modest. The ruling, then, is a wise and balanced one. — Glenn Kauth COMMENT January 23, 2012 • Law Times Of course, it's no wonder there are so few of them as the financial eligibility criteria for legal aid haven't changed since 1996. The 2011 annual report of the auditor general notes that Ontario has one of the lowest income eligibility thresholds and issues fewer certificates per capita than most other provinces. As a result, a dearth of certificates has L compromised the salutary effects of the last decade's fee increases. About 80 per cent of approved applicants for certifi- cates in Ontario earn less than $10,000, are on social assistance or have no reported income. They're the poorest of the poor. A single individual seeking free legal aid must have an income below $10,800. The threshold is so low, the report noted, that someone working for minimum wage full-time would earn twice that amount. For a family of five, the income cutoff is $26,714. While repayment agreements are pos- sible, the clients still must be very poor Law Times LT Masthead.indd 1 egal aid certificates are down by 50 per cent in Ontario since the early 1990s. Where have they all gone? with a single individual hav- ing to make less than $12,500 in order to qualify. For a member of a family of five, the cutoff for a repayment agree- ment is $33,960. Qualifying for legal aid in Ontario on a criminal certifi- cate also requires a probabil- ity of incarceration premised on the Crown's position. The Crown, then, becomes a kind of gatekeeper for certificates. People in Ontario can't A Criminal Mind Rosalind Conway apply for a legal aid certificate until they've had a first appearance in remand court. That's when the Crown's screening form is provided. If it's not ready, the client isn't eligible to apply. Legal aid denies certificates for some people in custody for serious matters because their income exceeds the cutoff. Ironically, lawyers are doing bail hearings without certificates because there hasn't yet been a determination that the client is facing incarceration. Clients may be too embarrassed or feel it's pointless to contact counsel they can never retain. At the same time, it's difficult to apply for legal aid in Ontario. Legal Aid Ontario has closed local offic- es that used to take applica- tions. While the Ottawa court- house has a small office, LAO encourages people to use a toll- free number to apply for cer- tificates. This takes longer than in-person applications. What about clients without phones? The process of applying for legal aid can slow down a mat- ter's progress through the system because there can be multiple appearances while the accused and their counsel struggle to get a certificate. The auditor general's annual report out- lined some interesting disparities across the country. In British Columbia, a single person making less than $19,632 qualifies for a certificate. If the applicant is in a fam- ily of five, the cutoff is a much more gener- ous $59,028. British Columbia doesn't use repayment agreements, the report noted. At the same time, Ontario now has the highest rate of duty counsel assists among Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 905-841-6481 • Fax: 647-288-5418 • www.lawtimesnews.com Group Publisher ................... Karen Lorimer Editorial Director ................... Gail J. Cohen Editor .............................. Glenn Kauth Staff Writer ....................... Kendyl Sebesta Staff Writer ................... Michael McKiernan Copy Editor ..................... Katia Caporiccio CaseLaw Editor .................. Adela Rodriguez Art Director .......................Alicia Adamson Account Co-ordinator ............... Catherine Giles Electronic Production Specialist ........Derek Welford Advertising Sales ............... Kimberlee Pascoe Sales Co-ordinator ................... Sandy Shutt ©2012 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without writ- ten permission. The opinions expressed in articles are not necessarily those of the pub- lisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 905-841-6481 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and US$265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 1/18/12 9:47 AM the provinces at 87 per 1,000 population. The provincial average is 31. What should the cutoff be for an indi- vidual? Well, adjusting $10,800 for inflation would suggest that about $15,000 is appro- priate in 2012, but that's still low compared to British Columbia. In addition, LAO shouldn't restrict certificates only to those probably facing incarceration. During the early 1990s, 200,000 legal aid certificates were issued annually in Ontario for various matters. But by 2010- 11, despite significant population growth and immigration, LAO was issuing just over 100,000 certificates. The annual report concludes that LAO should study the impact of its financial eli- gibility threshold on the poor. But the effect is clear: only the very poorest Ontarians whom the Crown has decided are going to jail get a legal aid certificate. The situation will soon become critical if the provincial government doesn't remedy the eligibility criteria now. Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 905-841-6786 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................647-288-8018 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com Where have all the certificates gone?

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