M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted onĚý on Feb 23, 2023.

On February 2, 2023, Ontario’s Ministry of Health (the Ministry) released its new health care plan, entitledĚýĚý(the Plan). ĚýAs part of the Plan, the Ministry intends to replace fax machines with digital communication alternatives at all Ontario health care providers within the next five years. Ěý

The first pillar of the Plan is called “The Right Care in the Right Place” and focuses on making health care more available and convenient for those seeking to access health resources. ĚýThe Ministry’s mission to “axe the fax” falls under this pillar by eliminating the use of fax machines to reduce health care delays, promote safer patient care, and allow health data to easily follow the patient wherever they may access care.

The Plan also recognizes that eliminating the use of fax machines would promote patient privacy, which aligns with the Information and Privacy Commissioner of Ontario’s (IPC’s) initiative to modernize Ontario’s health communication infrastructure. ĚýAs previously reported by the E-TIPS® NewsletterĚý, the IPC joined fellow Canadian privacy regulators in September 2022 to acknowledge the link between certain data breaches and the use of fax machines, and call for the phasing out of faxes. Ěý

This was recently reinforced by the IPC’sĚýĚý(the News Release) following its review of a large number of privacy breaches at St. Joseph’s Healthcare Hamilton caused by misdirected faxes. ĚýIn the News Release, the IPC stated that “misdirected faxes are the leading cause of unauthorized disclosure of personal health information in Ontario” and there is an “enormous potential” for stakeholders to work with the government to replace this outdated communication system. ĚýThe IPC’s full review can be foundĚý.

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Aaron Dishy is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Identification with LGBTQ2IA+ communities is a social determinant for broad health inequities. These inequities can limited access to health care services and a corresponding lack of access to relevant health information. The Government of Ontario recognizes the collection and use of data from minority populations as a critical step in improving social, economic, political, and financial inequities. But this recognition raises questions about the scope and standards to be applied to the province’s legal obligation to collect data about the health of LGBTQ2IA+ communities.

There are many for the lack of LGBTQ2IA+ health information in Ontario. Community size, problematic surveys, concealment, and stigma all prevent the accurate representation of LGBTQ2IA+ communities and their needs. Sexual orientation and gender identity are also complex topics that are challenging to account for in survey and census style information collection. For example, other dimensions of sexual orientation, such as sexual behaviour and sexual attraction, are often unaddressed in the literature. Surveys also rarely allow for intersectional analyses by collecting data about the health of Indigenous or racialized gender and sexual minorities. Canadian scholars continuously for improved population-based surveys to include direct questions on sexual orientation and gender identity.

Even with the gaps in information, statues and case law extensively detail the government’s obligations to collect and provide equitable public health information to diverse subject communities. For example, the defines personal health information to include “information [that]... relates to the physical or mental health of the individual.” This Act seeks to provide individuals with a right of access to personal health information about themselves, subject to limited and specific exceptions. The requires government actors to ensure “health promotion, health protection and disease and injury prevention, including the prevention and control of cardiovascular disease, cancer, AIDS and other diseases.” It similarly requires the release of personal health information by the Chief Medical Officer of Health if there is “ to the health of persons anywhere in Ontario.”

Recent case law in Ontario courts affirms an ongoing commitment to the collection and availability of information as it relates to LGBTQ2IA+ communities in Canada. In , access to records of “personal health information” about individuals and their communities is considered a requirement to ensure self-determination and autonomy in healthcare decisions. The decisions in and affirmed a broad scope of the government’s obligation , permitting provincial actors to collect personal health information from medical and information institutions in their capacity as prescribed entities under the .

Despite the need for improvements, the government is still taking some action to collect and make accessible health information as it relates to LGBTQ2IA+ communities. Surveys the Canadian Community Health Survey (CCHS), Census of Canada and National Household Survey, and the Public Service Employee Survey collect and make accessible a growing body of public health information which details sexual orientation and gender identity. However, the evidence demonstrating a lack of information about the health of LGBTQ2IA+ communities and an affirmed legal obligation to make such information publicly and equitably available suggests a legal argument that more should be done.

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Jaime Zorrilla is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

After inviting public and stakeholder feedback in 2020, the Ontario Government commissioned the . The Report found significant deficits in IP related outcomes. While the Ontario government has introduced courses to raise IP awareness, making these courses at least partially mandatory might better address the Panel’s Recommendations.

The report identified several issues in Ontario’s attempt to become a hub for IP creation. Further, of the patents that are assigned to Canadian inventors, a significant percentage are subsequently assigned to foreign entities. Ěý

So far, the province has taken meaningful steps to address these deficits in education and governance contexts. Notably, . The Ontario Government has worked with the University of Toronto and the Centre for International Governance Innovation to launch . Missing, however, is the second part of the Expert Panel’s recommendations – that engaging with these modules or curricula be “”.

On the one hand, requiring founders to take a course can delay and complicate the launch of a successful venture. Failing a module could play a detrimental role in determining whether a particular venture gets access to additional resources from universities, accelerators or even funding partners. Additionally, the length of such a module could dissuade innovators from seeking out resources or help from these institutions.

Still, the potential payoffs are significant. The report identified benefits in proliferating IP in the province:

• Canadian small/medium enterprises (SMEs) holding registered IP rights are .
• SMEs that are aware of IP at all are .

The easiest way to promote IP awareness would be ensuring the module is simple to take; however, a course which is too rudimentary may prevent innovators and SMEs from being well appraised to best spot opportunities to commercialize new IP within their own businesses.

A two-pronged strategy might be preferable. Requiring that SMEs who receive government funding from grants or loans or who participate in commercialization aides such as accelerators or university programs take the existing module could meaningfully promote a baseline level of IP awareness. In addition, the Ontario Government could promote even greater familiarity with IP concepts by setting and enforcing targets for completion of levels two and three of these modules, potentially contingent on some degree of support by the province and its related agencies. The module established at the University of Toronto has, for example, developed additional modules on the value of various types of IP and the process of actually applying for a patent.

The latest development from the Expert Panel’s Report came in March when based in no small part from a recommendation by the panel’s Report. The new agency has so far identified IP education and awareness as one of its priorities. By working alone or with the province, implementing some form of mandatory training can go a long way to promoting IP awareness among inventors.

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Photo by Matthew Henry ()

Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law. This article was originally written as part of the IPilogue’s annual Year in Review but has instead been published as a standalone article.

2021 was a transformational year for Canadian privacy legislation. Following the changes made to the , several provinces amended their privacy legislation to protect their constituents’ interests. The private sector may be less welcoming to changes in many provinces which expose companies to . On the flip side, these proposed legislative changes will strengthen the privacy of Canadians in their everyday lives.

Provincial Legislative Changes

Quebec’s Bill 64 Passes Royal AssentĚý

The most significant development in privacy legislation is Quebec’s , An Act to modernize legislative provisions as regards the protection of personal information, which received royal assent on September 22, 2021. This legislation is significant because of its effects on the private sector. Starting September 2022, private sector organizations must inform the privacy regulator following any breach to compromised personal information that presents a “serious risk of injury” to affected individuals. To determine if there was a serious risk of injury to affected individuals, the province turns to the factors outlined in the “real risk of serious harm” section of the Federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). As , the gradual implementation of Bill 64 allows organizations the opportunity to update their processes and procedures to ensure compliance before September 2022. The Quebec legislation also takes inspiration from the European Union's General Data Protection Regulation (“G¶Ů±Ę¸é”), which has been touted as the “” privacy regime because of its strict privacy standards and its partiality towards consumers.

The omnibus bill included such as changes to company websites, assignment of a Privacy Officer, completion of Privacy Impact Assessments, and requirements for consent, individual rights, and automated decision making. To date, the analysis of the legislation compares the provisions to the European GDPR.

Companies operating in Quebec are now required to publish their company privacy policies on their websites. Such privacy policies must describe how companies plan to use personal information.

In the event of privacy infringements that violate individuals’ private information, individuals will now have recourse through administrative monetary penalties, penal offenses, and private rights of action.

Finally, similarly to the GDPR, Quebec introduced consent requirements for collecting personal information, including express consent before using sensitive information and parental consent for minors under the age of 14.Ěý

Ontario Welcomes Consultations and Proposes Changes

Under the leadership of Patricia Kosseim, the Office of the Privacy Commissioner pursued their goal of passing an equivalent piece of legislation in 2021. In response to an op-ed piece that argued against provincial legislation in fear of redundancy and duplication, Kosseim recently regarding the potential for new provincial legislation to “fill in the gaps” of what Federal privacy legislation cannot accomplish.

In keeping with Kosseim’s motivation to strengthen privacy laws in Ontario, the Government of Ontario released a along with calls for consultation in June 2021. The White Paper, titled “Modernizing Privacy in Ontario,” set out several proposals the Ministry is considering to strengthen privacy protection for Ontarians. To strengthen such protections, the Ministry has proposed making privacy a fundamental right in Ontario. Ontario has also included suggestions to protect youth privacy online, regulate automated decision-making, and require more informed consent and data transparency from private corporations.

The Ministry allowed the public to provide comments and feedback until August 2021. The Office of the Privacy Commissioner applauded the provincial government for taking a “” with its proposal.

BC’s PIPA Committee Releases their Final Report

The British Columbia Legislative Assembly also created a special committee to review the British Columbia (“PIPA BC”) in February 2020. The objective of this committee was to publish a report proposing amendments to PIPA BC, which the committee completed in December of 2021. In the , the committee suggested aligning PIPA BC with PIPEDA and Europe’s GDPR. Like the recently passed Quebec legislation, the committee also suggested mandatory breach notifications if a breach surpasses the “real risk of significant harm” threshold as established in PIPEDA. The committee also recommended broadening the definition of personal information to address the potential issue of de-identification. Finally, the committee proposed that the Office of the Information Privacy Commissioner have greater enforcement powers.

Federal Legislative Changes

The Federal Office of the Privacy Commissioner (“°ż±Ę°ä”) did not introduce any new legislation in 2021. The Office was engaged in issues surrounding as well privacy issues resulting from the COVID-19 pandemic, including privacy with respect to and the rise in reliance on video teleconferencing platforms like Zoom and Microsoft Teams. The Canadian OPC, along with privacy authorities in Australia, Gibraltar, Hong Kong SAR, China, Switzerland, and the United Kingdom, to the videoconferencing companies regarding their rapid expansion during the pandemic to query and confirm that these technology companies were using appropriate privacy safeguards. The letter led to a series of video calls between the signatories and representatives from the companies. Finally, the signatories and suggestions to improve privacy going forward. Among the suggestions were the implementation of end-to-end encryption, the identification of secondary use data (as well as an opt-out system), and the option for users to choose where their data is stored.

Conclusion

New and amended privacy legislation continues to develop in Canada and worldwide.ĚýFollow the IPilogue and subscribe to our newsletter, the IPIGRAM, for any important legislative changes that emerge in 2022.

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On March 15, 2021, the Ontario Court of Appeal (the Court), inĚýFamily and Children’s Services of Lanark, Leeds and Grenville v Cooperators General Insurance Company,Ěý, reversed the lower court’s decision that found that Co-operators General Insurance Company (Co-operators) had a duty to defend Family and Children’s Services of Lanark, Leeds and Grenville (FCS) and Laridae Communications Inc. (Laridae) against two claims in relation to a cyber hack.

Laridae was retained by FCS to perform communication and marketing services, including working on FCS’ website. FCS subsequently discovered that its website had been hacked and that a report containing personal information of 285 clients and subjects of FCS’ investigations was disclosed on Facebook without authorization. Both companies were insured by Co-operators and claimed that Co-operators had a duty to defend against the following two claims that arose out of the event:

1. a $75 million class action brought against FCS alleging that FCS was negligent in securing its website; and
2. a third-party claim in that proceeding brought by FCS against Laridae for negligence and breach of contract.

Co-operators denied that it had a duty to defend because its policies excluded claims arising from the distribution of data by means of an internet website. All three parties brought applications to determine the rights that depend on the interpretation of the policies.

The Court disagreed with the lower court’s finding that the matter could not be addressed by way of application, stating that there were no material facts in dispute requiring a trial and that the policy provisions in issue were clear and unambiguous. Upon assessing the issue, the Court found that the substance and true nature of both claims arose from the wrongful appropriation and distribution of confidential personal information on the internet. The Court held that all claims asserted were covered by the clear and unambiguous language of the exclusion clauses, and therefore Co-operators had no duty to defend either claim.

The Court did not waver when faced with FCS and Laridae’s argument that applying the data exclusions would nullify meaningful coverage under the policy. The Court held that the policies clearly stated that Co-operators would not insure against all risks, and therefore, holding the parties to the terms of the agreement, aligned with the reasonable expectations of the parties.

Written by M. Imtiaz Karamat, Osgoode Alumnus and Student-at-Law at Deeth Williams Wall LLP.

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