Law Times

Law Times • JuLy 13/20, 2009 FOCUS PAGE 11 his eye on developing an informa- tion and privacy law practice. "A partner approached me and Privacy and information law: steady growth T BY JULIUS MELNITZER For Law Times hirteen years ago, Kris Klein was working at a large fi rm, where he had told me I was wasting my time be- cause I would never bill a penny from that type of practice," Klein says. But the young lawyer per- sisted, and after a spell with the Justice Department, he's now a sole practitioner in Ottawa with a successful practice that specializes in information and privacy law. "As information became such an important commodity, people were desperate for lawyers who were fa- miliar with privacy and access to information laws," he recalls. Th e services Klein provides in- clude advising on privacy compli- ance (including training), data pro- tection, and access to information. He defends privacy complaints, ap- pears in Federal Court, and negoti- ates with regulators when necessary. His clients include individuals, companies subject to privacy legis- lation or those facing common law privacy issues, and a host of Crown corporations that have recently be- come subject to privacy and access to information laws. "I have a relationship with most of the privacy commissioners in Canada, something that's proven invaluable in serving clients." But it's not just sole practitioners who are practising in the area. Large fi rms and boutiques are among those who have found it advisable to have privacy specialists on hand. Barbara McIsaac, of Borden Ladner Gervais LLP in Ottawa, has been involved in privacy issues since she joined the Justice Department in the early '80s, when the Informa- tion to Access Act and the Privacy Act fi rst came on the scene. She moved to McCarthy in 1994, where her practice embraced a wide range of federal regulatory law. But passage of the Personal Information Protection and Elec- tronic Documents Act led to a new emphasis on privacy law. "Th e privacy side of my practice involves helping clients get privacy policies and procedures organized internally, assisting clients with for- mal complaints, and guiding them through general compliance issues," says McIsaac. "Many of these issues arise in the employment or health privacy context." On the access to information side, assisting clients with third party applications is McIsaac's most common type of mandate. "For ex- ample, a client may have provided information to government as part of a grant application and then somebody makes a request for that information," McIsaac explains. She also assists government agencies and Crown corpora- tions in dealing with information requests. Her practice even has a transactional aspect. "Th ere are an increasing number of transactions where privacy issues arise," she says. "Certainly that's almost al- ways the case where there's a trans- fer of customer or other databases containing private information." Meanwhile, at human resource boutique Hicks Morley Hamilton Stewart Storie LLP's Toronto of- fi ce, privacy and information law e-discovery counsel starting to emerge on fi les," Michaluk says. Growth in privacy and infor- mation law has been steady, but not exponential. "Th at's how fi rms thinking of developing a practice should look at it," Michaluk says. Still, if the anti-spam legisla- tion introduced by the federal gov- ernment is passed, the practice is bound to get a considerable boost. Although Canada is the only Kris Klein specializes in infor- mation and privacy law. fi les take up almost three-quarters of Dan Michaluk's time. "I deal with compliance issues, privacy complaints defences, access to information matters, and advice and advocacy related to the pro- duction of information," he says. "Th e four most important client base sectors for me, in order, are the employment, public, health-care, and commercial sectors." Th e commercial sector is the newest market, although it's still small. "For example, there's a real need for legal advice about privacy- related policies and procedure in the gaming industry," he says. Privacy complaint defence man- dates come in various forms. "You have privacy-related grievances under collective agree- ments, regulatory complaints like those under PIPEDA, provincial privacy law complaints, and court- based litigation," Michaluk says. Indeed, privacy issues framed in tort or contract are appearing more and more often in litigation. On the access to information side, Michaluk acts for institu- tions covered by such legislation. "It's not a huge market unless the stakes get high, because typi- cally companies don't expect to use outside counsel on these things," he says. Otherwise, privacy issues are increasingly appearing in the con- text of production and discovery. "Electronic discovery is mak- ing these issues very complex, to the point where you'll see BALL_Canadian Employment Law (LT 1-4x3).indd 1 Get Our Environmental w Specialistson Your Team! Get Our Environmental Law Specialists*on Your Team! Our team of environmental lawyers includes 5 Environmental Law Specialists* We help you help your clients. Call us. G-8 country and one of only four members of the Organisation for Economic Co-operation and De- velopment that does not have anti- spam legislation, if the electronic commerce protection act is enacted in anything resembling its current form, it will be the broadest such legislation in the developed world. Unlike other international anti- spam legislation, the provisions of the act are not limited to messages that may be harmful such as those containing some element of fraud or deceit. Indeed, ECPA prohibits the sending of any "commercial electronic message," to an electron- ic address without the recipient's prior consent, where the purpose of the message is to encourage par- ticipation in a commercial activity. In other words, the act as- sumes that all electronic commu- nications are unwanted spam and prohibits all commercial elec- tronic messages, except in limited circumstances. It will have a huge impact on how legitimate com- panies conduct their electronic message marketing. Otherwise, the act applies not only to business-to-consumer mes- sages, but also business-to-business messages. It covers all forms of elec- tronic messaging and the consent provisions are quite rigid. Finally, the legislation has teeth. Off enders would be liable to administrative monetary penal- ties of up to $1 million for indi- viduals and up to $10 million for corporations. Offi cers, directors, and agents would be liable if they directed, authorized, or partici- pated in the violation. LT Canadian Employment Law Also available on CD-ROM or Internet! One of Canada's foremost employment authorities provides an examination of the facts you can count More than 5,500 cases cited! This one-stop reference provides a thorough survey of the law. It clearly analyzes current law and devel- oping trends, suggests potential avenues of attack as well as identifies potential weaknesses in the law. Covering the complete range of employment law in Canada, Canadian Employment Law provides the detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: • • • • • wrongful dismissal fiduciary obligations tort law and vicarious liability issues remedies constitutional issues Easily compare lengths of notice awards and examine pertinent decisions This resource also includes a Table of Reasonable Notice—a chart, which groups together comparable types of positions so you can easily compare length of notice awards. All topics are illustrated with extensive case law and heavily footnoted. Canadian Employment Law has been cited by the Supreme Court of Canada. ORDER your copy today Looseleaf & binders (2) • $297 • Releases invoiced separately (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $221 • • • occupational health and safety employment contracts duty of good faith and fidelity and human rights For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0302 2/25/09 2:56:17 PM www.willmsshier.com * Certified by the Law Society of Upper Canada ENVIRONMENT, ENERGY & RESOURCES LAW www.lawtimesnews.com Juli Abouchar 416 862 4836 Doug Petrie 416 862 4835 John Willms 416 862 4821 Donna Shier 416 862 4822 Marc McAree 416 862 4820 Law Times #MS07-06B – 7-7/8" x 4-7/8" Stacey Reginald Ball

• Cover
• The LSUC Honours
• Social Justice
• Focus On Legal Specialists & Boutiques