CIPPIC was granted leave to intervene before the Federal Court of Appeal in Teksavvy Solutions Inc v Bell Media Inc, FCA File No A-440-19, an appeal of an order compelling Canada's ISPs to block access to a website accused of copyright infringement. The order under appeal is novel, and if approved will have far-reaching implications for free expression and balanced copyright, creating an extraordinary new censorship power that the applicants have sought in trade negotiations, at parliament, and at the CRTC, without success.

The intervention order itself adopts a thoughtful, but decidedly novel approach in its application of the Federal Court of Appeal's uniquely rigorous test for public interest intervention. As set out in CIPPIC's initial motion to intervene, dated February 3, 2020 (paras 5-12) and affirmed by the case management judge in a brief and pointed direction dated April 24, 2020, the test for intervention requires extensive coordination among different public interest interveners to avoid duplication. In light of the interveners' demonstrably successful efforts to coordinate, the Court took the exceptional step of merging many of the parties, allowing CIPPIC to file a joint intervention with our close colleagues at the Canadian Internet Registration Authority (CIRA). The British Columbia Civil Liberties Association (BCCLA) was also granted leave to elaborate on its detailed proposed submissions regarding the need to account for freedom of expression when issuing orders that interfere with access to expressive content. The intervention order is also innovative for its willingness to depart from a categorical approach to classifying proposed interveners, and instead consider the particular characteristics of specific parties and their historical record of intervention. This allows for a more thoughtful and contextual approach to granting intervener status, while interveners will need to be more cautious in implementing the Court's conditions of intervention, or risk developing a negative track record and threatening future interventions.

Three other parties seeking to intervene on behalf of intellectual property rights holders were also granted leave to intervene, and merged into a single intervention. CIPPIC is represented by Alyssa Tomkins and James Plotkin of Caza Saikaley, SRL/LLP.

IMAGE SOURCE: Stanislav Lvovsky, "Censored", Flickr, September 28, 2015, CC-BY-NC-ND 2.0

In partnership with our fellow Samuelson-Glushko Clinic at the University of Colorado, CIPPIC today submitted comments to the Office of the Privacy Commissioner regarding two of its proposals for reforming PIPEDA—Canada's federal private-sector privacy statute—to deal with the challenges posed by artificial intelligence. Our submissions on behalf of 25 privacy scholars from Canada, the United States, and Europe—led by Prof. Margot Kaminski of the University of Colorado and CIPPIC Director Vivek Krishnamurthy—respond to OPC's proposals to amend PIPEDA to “[p]rovide individuals with a right to explanation and increased transparency when they interact with, or are subject to, automated processing” (Proposal 4), and “[r]equire the application of Privacy by Design and Human Rights by Design in all phases of processing, including data collection” (Proposal 5).

Specifically, our submissions suggest that a revised PIPEDA should include:

1. An individual right to an explanation of an algorithmic decision with significant effects on individuals;

2. Legal requirements for the application of Privacy and Human Rights by Design in all phases of data processing;

The appeal of Cooperstock v United Airlines, Inc., scheduled to be heard Tuesday, December 10, has been discontinued as the parties have reached a settlement.

While undoubtedly a positive development for the parties - who bear the cost and stress of the litigation - the development leaves intact the troubling lower court decision in United Airlines, Inc. v. Cooperstock, 2017 FC 616 (CanLII).  Mr. Cooperstock operated Untied.com, a consumer criticism site targeting the plaintiff, United Airlines.  United, after years of tolerating Mr. Cooperstock's stings, in 2012 concluded that it could take no more and filed a statement of claim alleging copyright infringement and a number of violations of its rights under the Trademarks Act.  The lower court agreed sided with United in a controversial opinion. Mr. Cooperstock appealed.

CIPPIC has filed its intervener factum in the Supreme Court in Uber v. Heller, SCC No, 38534, an important case addressing when courts should refuse to enforce contractual restrictions on fair access to justice. CIPPIC’s argument focuses on the applicability of the equitable doctrine of unconscionability to standard form contracts that include contractual restrictions that deny access to justice. CIPPIC proposes a two-step test to aid courts in determining whether such contractual restrictions would result in the unconscionable denial of access to justice.

Professor Marina Pavlović and Cynthia Khoo (LLM Candidate and CIPPIC researcher) are acting for CIPPIC in this intervention.  Newly minted lawyer and former CIPPIC Articling Student Johann Kwan also signed on CIPPIC's behalf.

The case is scheduled to be heard November 6, 2019.

• CIPPIC Factum