Law Times

Page 4 April 10, 2017 • lAw Times www.lawtimesnews.com NEWS NEWS NEWS He says one such shift that could help the new challenge is that the interpretation of s. 15 of the Charter has changed several times in the years since. The section holds that all in- dividuals have equal benefit and protection under the law with- out discrimination. Rosenthal noted the Supreme Court's 2013 decision in Canada (Attorney General) v. Bedford, in which the court found that it could revisit a previous decision and overturn it if new legal issues have been raised as the result of significant developments in law "or if there is a change in the circumstances or evidence that fundamentally shifts the param- eters of the debate." Rosenthal says that in Banks, the Court of Appeal looked at very narrow issues. He says the fact that the new challenge is on behalf of an or- ganization will mean the court will have to look at the act as a whole and not just the facts of individual cases as it did in Banks. There is also a lot more infor- mation on the effects of the act that has been gathered since its early days. "We have the benefit of hind- sight now of seeing what's ac- tually happened and what's ac- tually happened is it hasn't had any real effect on behaviour. It's kept people from getting off the streets and it's costing the prov- ince a lot of money," says Daniel Ciarabellini, the student direc- tor of Fair Change. Ciarabellini says that ticket- ing under the act has increased steadily over the years since the act's early days. A 2011 report conducted by professors at the University of Guelph and York University found that there were 15,324 Safe Streets Act charges laid that year in Toronto and that the number of tickets issued had risen expo- nentially over the previous 10 years. Before the constitutional challenge is launched, Rosen- thal says he intends to request a meeting with Attorney General Yasir Naqvi's office to call on the provincial government to repeal the Safe Streets Act. Rosenthal notes that the On- tario Liberal Party was against the Safe Streets Act while in op- position during the government of former premier Mike Harris, but it has not repealed it since coming to power in 2003. Clare Graham, a spokes- woman for Naqvi, said that "keeping our streets safe and secure" is a top priority for the government. "The Ministry is open to hearing from stakeholders about the impact of the Safe Streets Act and will make any decisions based on evidence," she said in an email. The Fair Change clinic, which is staffed by Osgoode Hall Law School students under the supervision of lawyers, is currently conducting research to prepare the legal challenge, which Ciarabellini says he ex- pects to file this summer. The clinic recently scored a small but significant victory in fighting Safe Streets Act tickets by reaching an agreement with the Old City Hall courthouse in downtown Toronto to mass appeal tickets with a single set of paperwork. Applicants previously had to submit multiple sets of forms for each ticket, but the agree- ment made what was once a very time-consuming process much more efficient, lawyers say. The Fair Change clinic is now looking to get to the root of its clients' legal woes. The issue is a personal one for Ciarabellini, whose father has struggled with alcoholism and mental illness in the past. Ciarabellini says he told him- self he would bring down the panhandling legislation when he first started volunteering for the clinic at the beginning of law school. Just a couple of years later, he is looking to follow through on that commitment. "They have to be able to do something to not only continue to survive but hopefully escape life on the street," he says. "That inability to legally pan- handle is a significant detriment both to their security of person, bodily and psychological integ- rity, as well as their freedom to make any meaningful choices to improve their lot in life." LT vacy Commissioner of Ontario. An IPC adjudicator ruled last year that under provincial free- dom of information provisions, all of the agreement should be disclosed. The agreement between TD and Ryerson contained financial information, but it did not meet the disclosure exceptions in s. 17 of FIPPA, concluded Gillian Shaw. She also rejected the bank's argument that a new "innova- tive contractual arrangement" exception should be created. The adjudicator's findings and the judicial review by the Divisional Court reached simi- lar conclusions to that of a num- ber of previous cases in Ontario on this issue, says David Goodis, a lawyer and an assistant com- missioner of the IPC. Without commenting on the specifics of the TD case, he sug- gests there are good policy rea- sons for these conclusions. "In the big picture, there is a very strong public interest in being able to scrutinize agree- ments by governments, par- ticularly details of spending by government to ensure they are getting value for money," says Goodis. TD was represented by Christine Lonsdale, a partner in the litigation group at McCarthy Tétrault LLP in Toronto. She referred questions to the communications department at the bank. "While we recognize the public's interest in activities un- dertaken by Ryerson, significant time and effort have gone into honing the unique and proprie- tary terms and conditions of the agreement. We are, therefore, seeking to protect it," says TD spokeswom- an Cheryl Ficker. Ryerson was represented by three lawyers at the Divisional Court hearing, including the university's general counsel, Ju- lia Shin Doi. "We have no comment," she replied when contacted by Law Times. The presumption that these commercial agreements are subject to disclosure in Ontario "comes as a surprise to vendors," says Catherine Beagan Flood, a litigation partner at Blake Cas- sels and Graydon LLP. "That is not their experience in other jurisdictions. "There is a long-standing con- troversy over whether this is the correct interpretation of third- party rights," suggests Beagan Flood, who is not involved in the TD case but has acted in several freedom of information/privacy legislation cases. As well, the analysis con- ducted under the Ontario stat- ute is different than the way the federal access to informa- tion provisions are interpreted, such as in the Supreme Court's 2012 decision in Merck Frosst v. Canada (Health), where the court stressed a need for a "care- ful balance," says Beagan Flood, who acted for Merck Frosst in the case. She also suggests there is a public benefit in being more protective of the right of a com- pany to keep information pri- vate that it believes would put it at a competitive disadvantage if disclosed. "You are creating a disincen- tive from offering government your best price or terms. "It will now be known to your competitors," says Beagan Flood. The public interest excep- tion in FIPPA, which can over- ride exemptions, is a better way to deal with this balancing of rights, such as in cases where there may be concerns raised about a specific commercial agreement, she says. For his part, Goodis believes it may be helpful for the Court of Appeal to provide guidance in this area. At the same time, he stresses that the procurement processes of governments and public in- stitutions should be transpar- ent. "If you don't like it, you don't have to bid," says the IPC assis- tant commissioner. In the TD case, the bank's central argument was that the "structure" of its affinity agree- ment is "innovative" and has not been replicated by its competi- tors. The bank compared it to a unique recipe or computer pro- gram. The argument was not ac- cepted by the IPC adjudicator or the Divisional Court. "Although the bank argues forcefully that the structure of the agreement is an informa- tional asset that it supplied to the university, it has not iden- tified with any precision what particular aspect of the con- tract's 'structure' it seeks to pro- tect. "In any event, I am not per- suaded that the agreement's structure can be viewed as sepa- rate from its terms," wrote Shaw, in finding the deal to be a nego- tiated agreement and not akin to a trade secret. LT Continued from page 1 Interpretation of the Charter has changed Appeal comes after FOI request Continued from page 1 TECHNOLOGY LAW SPRING FORUM CHAIRED BY Kirsten Thompson, McCarthy Tétrault LLP Ian Thorburn, Solicitor, City of Toronto St. Andrew's Club & Conference Centre 150 King Street West 16th Floor, Toronto ON, M5H 1J9 MAY 18, 2017 | WWW.IT-CONFERENCE.CA 2017 JOIN US FOR THE SAVE 10% Early Bird Extended to April 18, 2017 Powered by Untitled-4 1 2017-04-03 3:06 PM

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