Law Times

LAW TIMES / MAY 5, 2008 FOCUS PAGE 11 In ironic twist, court busts Adbuster's bid to advertise BY JULIUS MELNITZER For Law Times n a stroke of jurisprudential irony, the British Columbia Supreme Court has busted an attempt by Adbusters Media Foundation, the public advocacy organization and anti-consumerist magazine, to advertise in the main- stream media. It can never be said, however, I that Adbusters, best known for its spoof ads, went down without a fight. True to form, the magazine's case rested on a vigorous attempt to buck precedent. "To my mind, the big obstacle facing Adbusters was the deci- sion in Eldridge v. B.C., which represents current law regarding the application of the Charter to non-governmental entities," says Gregg Rafter of Vancouver's Boughton Law Corp., who rep- resented the CBC in Adbusters Media Foundation v. Canadian Broadcasting Corporation. The issue arose in the context of two motions: the first by Ad- busters seeking to add the CBC as a defendant; and the second by Global Television Network Inc. seeking a dismissal of Adbusters' claim against it. In 2003, Adbusters attempted to initiate a television campaign through the broadcast of 10 ad- vertisements. Not surprisingly, the short, video-based programs were focused on criticisms of the influ- ence television media wielded on society. The advertisements target- ed fast food, fashion, beauty, sex, violence, and consumerism. There was no issue that the ad- ROUND-UP Digital signatures banish lowly pen BY JULIUS MELNITZER For Law Times I tured Information Standards, a not-for-profit, international stan- dards consortium based in Boston, approved Digital Signature Ser- vices version 1.0 as an OASIS Standard. The new standard makes it easy to use digital signatures by allowing companies to control their signature applications on an organizational basis through a network-based server. "The standards are intended to promote inter-operability of In January, the Organization for the Advancement of Struc- secure digital signatures through a broad range of systems, equip- ment, and technologies," says Michael Beairsto of Fraser Milner Casgrain LLP's Toronto office. "For example, they allow banks to talk to payment conduits, and accountants to talk to banks so long as everyone involved has OASIS data security compliant soft- ware." The idea is to encourage more use of data signatures, which should make things move even faster — perhaps to the point where lawyers will have to be on call even more than the 24 hours a day they're expected to be around now. See Private, page 13 Ball&Alexander Barristers & Solicitors Excellence in Employment & Labour Law • Counsel in Leading Cases • • Authors of Leading Book • Wrongful Dismissal Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Workers' Compensation Employment Standards Administrative Law 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca Untitled-1 1www.lawtimesnews.com 4/7/08 9:02:11 AM Alan Farrer - Managing Partner | Desmond Dixon - Partner | David Neill - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom n today's e-driven world, pens rarely get to paper. Instead, digit- al signatures are becoming commonplace, especially when it comes to legal contracts. vertisements' quality met broad- cast standards. Global refused to air the nine ads that Adbusters submitted. The CBC accepted some of the advertisements, but only for re- stricted airing on outlets other than the main CBC network and CBC Newsworld. Adbusters responded by su- ing Global and seeking to add the CBC as a defendant. It contended that the exclusion of its material violated the right to freedom of ex- pression in s. 2(b) of the Charter. Adbusters' position was that of Canada confirmed that private entities acting sufficiently like government could be subject to Charter attack. More specifically, the court ruled that the Univer- sity of Guelph's mandatory re- tirement policy was not subject to Charter scrutiny. "Though the legislature may determine much of the environ- ment in which universities oper- ate, the reality is that they function as autonomous bodies within that environment," the court wrote. "There may be situations in both Global and CBC were "gov- ernment." It reasoned that because Global was acting pursuant to li- cences issued under the Broadcast- ing Act, the network was carrying out specific governmental objec- tives and thus "assumed the gov- ernment of Canada's Charter re- sponsibilities with respect to their performance in that regard." Global argued that it was a private corporation to which the Charter did not apply in respect of its dealings with Adbusters. Rafter noted that Adbusters' argument had already been rejected in a 1995 decision known as Adbusters No. 1. The 1995 decision, however, was based on the 1990 ruling in McKinney v. University of Guelph. In that case, the Supreme Court respect of specific activities where it can fairly be said that the deci- sion is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and, as noted, there is no statutory requirement imposing mandatory retirement on the universities." Adbusters maintained, how- ever, that McKinney was no lon- ger the law. It submitted that the Supreme Court's 1997 decision in Eldridge v. British Columbia formulated a new test for deter- mining whether a non-govern- mental entity was performing an inherently governmental activity. The expanded test, according to Adbusters, directed courts to consider whether the private en- tity was implementing a specific governmental policy or program — as it alleged the networks were doing in this case. Justice William Ehrcke disagreed with Adbusters that Eldridge repre- sented new law. "I agree with the Global de- fendants that the Supreme Court of Canada's decision in Eldridge does not amount to a departure from the principles in McKinney and therefore does not provide a basis for distinguishing the deci- sion of Holmes J. in Adbusters No. 1," he wrote. "In Eldridge Mr. Justice La For- est went out of his way to explain how his reasoning is based on what was said in McKinney." Adbusters No. 1, therefore, was determinative of the instant case. "That case clearly held the CBC's action of declining to broadcast one of Adbusters' adver- tisement was not subject to Char- ter scrutiny, and that the same re- sult would apply even if the CBC were a private broadcaster." It was therefore "plain and obvi- ous" that Adbusters had not raised a reasonable cause of action against Global. Similarly, there was no ba- sis on which to add the CBC as a defendant. LT Trust [ Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed.

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