Winkler Dispute Resolution

Certified Specialist in Civil Litigation by the Law Society of Upper Canada

AdvocateDaily.com Staff

Does PIPEDA protect social media personal data?

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Companies like Facebook and Google — which have come under intense criticism for their handling of personal information — need to enter into a new social contract with their users or risk having one imposed by governments, says Toronto lawyer and mediator Howard Winkler.

“It’s time for a change in the social contract that Google and Facebook have with their users. It shouldn’t necessarily have to be the subject of legislation,” says Winkler, principal and founder of Winkler Dispute Resolution.

“I think that Google, Facebook and others should recognize that there are limits users want to put on the use and sale of their data. They should contemplate what those limits are, and give people an opportunity to opt out of certain uses of their data,” he tells AdvocateDaily.com.

Winkler points to revisions to the European Union’s General Data Protection Regulations (GDPR) as an example of how governments are responding to the massive privacy breach of Facebook users’ data through its ties with consulting firm Cambridge Analytica — a company which announced in early May that it was shutting down, CBC reports.

The GDPR changes, effective as of May 25, will enhance how personal data is protected by businesses and the public sector in 28 countries, and will have a particular impact on social media companies, Wired reports.

“The focus of those changes is requiring Facebook and Google to provide users with greater clarity in terms of what’s being collected and how their data is being used,” Winkler says.

He says the EU provisions are similar to what’s contained in Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), which is enforced by the privacy commissioner and governs the collection, use and disclosure of personal information by private-sector organizations.

“I think PIPEDA, in terms of covering the use of personal data, is sufficient, if properly enforced. What’s unresolved is how the privacy commissioner is going to interpret the existing rules in the context of Facebook and Google,” Winkler says, noting that in March, the commissioner opened an investigation into a complaint against Facebook with respect to Cambridge Analytica.

“It seems pretty clear to me that the existing legislation, and the spirit of its regulations, requires this meaningful and informed consent. I don’t think that when you first subscribe to Facebook or sign into Google and you click ‘I Agree’ to the terms of use that that constitutes what the Act would require as a meaningful and informed consent. So my view is that the legislation is or should be sufficient to prevent certain uses and sale of personal information.”

On May 24, the privacy commissioner announced it had published “two important new guidance documents — on obtaining meaningful consent and on inappropriate data practices — to help organizations ensure they comply with their privacy obligations in the digital age.”

Google recently released its revised privacy policy, and “while it does provide some explanation of the collection and use of information, it does not in my view go far enough or contemplate any change in their business practices.

“When I look at the terms of use on both Google and Facebook, it seems to me that there is still insufficient disclosure of the commercial use to which they are using people’s personal information.”

The Facebook-Cambridge Analytica situation “is perhaps a catalyst for greater public understanding of how our information is being used and sold for commercial gain. And it’s started a useful dialogue that hopefully will result in people being able to continue to receive the services they want from Facebook and Google,” he says.

“At the same time, people should be able to place some limits on the use of their data to be more consistent with their expectations. I think that that likely is coming. But one has to recognize from Facebook and Google’s perspective, any kind of limitation on use and sale of data is going to affect their economic model, and so they’re going to be reluctant to change.”

Winkler backs Brown’s effort to ‘expose the truth’ in new book

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Toronto lawyer and mediator Howard Winkler tells the Globe and Mail he supports former provincial Progressive Conservative leader Patrick Brown’s plan to set the record straight in a new book about his ‘sensational political assassination.”

The book, titled Take Down: The Political Assassination of Patrick Brown, is due for release on Nov. 1, says the Globe.

Winkler, principal and founder of Winkler Dispute Resolution, is representing the former provincial PC leader in an $8-million defamation suit against CTV. He says the book is Brown’s way of “exposing the truth and contributing to the process of vindicating his reputation.”

“I support Mr. Brown’s initiative, especially in light of the fact that the legal system does not provide the kind of timely disclosure of the truth that can be achieved through his proposed book,” Winkler says, adding he expects the book will be reviewed prior to publication to ensure the content can be defended.

The article says Brown resigned as party leader on Jan. 25, hours after CTV News aired a story about sexual-misconduct allegations from two women during his time as a federal MP.

“MP. Mr. Brown has denied the allegations, and is suing the network and its journalists. The network says it stands by its reporting,” the Globe says.

‘Unprecedented’ damages sought in historic defamation case: Winkler

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Toronto lawyer and mediator Howard Winkler tells various news outlets that in his view CTV’s reporting on former provincial conservative Leader Patrick Brown represents the “most egregious” defamation in Canadian history. See Global News Sun Media Toronto Star Yahoo News

Brown has launched an $8-million action against CTV, claiming the broadcaster defamed him by airing a news report detailing allegations of sexual misconduct by two women. Brown denied the claims but was forced to resign his leadership of the Ontario Progressive Conservative party.

“Regrettably, it is unlikely that the harm done by CTV will ever be fully repaired,” Winkler told Global News.

“This is why CTV owed such a high duty of responsibility to Mr. Brown and the public before they broadcast and published their stories,” he told the Toronto Sun newspaper.

Winkler, principal and founder of Winkler Dispute Resolution, explained to the news outlets that the special circumstances of the case account in part for the size of the damage claim, which would represent a Canadian record for defamation if awarded in full.

“We consider the defamation of Patrick Brown by CTV to be the most egregious in Canadian history,” Winkler told the Sun. “The damages sought in the statement of claim reflect this fact and will allow the court to impose what we believe should be an unprecedented amount to reflect the serious nature of the harm done to Mr. Brown and to punish CTV for its conduct.”

The statement of claim, which contains allegations yet to be proven in court, says polls indicated Brown was on track to unseat Kathleen Wynne as premier of Ontario before the “widespread and sensationalized” news report delivered an “almost immediate death blow” to his reputation and political career and changed the political landscape in the province for some time to come.

CTV has acknowledged errors in its original report, but company spokesman Matthew Garrow told the Sun that the broadcaster “stands by its reporting and will vigorously defend it in court.”

Winkler tells AdvocateDaily.com his client is approaching the case with optimism.

“Mr. Brown has always denied what was reported by CTV and he has faith in the judicial system to, as best it can, vindicate his reputation, compensate him for his loss of reputation and to send a message to CTV that with the privilege of its media power comes the responsibility to properly investigate before broadcasting and publishing statements which they know will lead to the destruction of a person’s reputation,” he says.

Access to information system broken: Winkler

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Canada’s access to information regime is being crippled by underfunded government agencies and ineffective policing, Toronto lawyer and mediator Howard Winkler tells AdvocateDaily.com.

Federal legislation typically gives government bodies 30 days to respond to requests for information, and dissatisfied individuals are able to complain to the Office of the Privacy of Canada.

However, Winkler, principal and founder of Winkler Dispute Resolution, says the oversight body has no power to penalize offenders even when it finds violations of the law, and the Liberal government has fallen short on an election promise to fix the system.

“In my view, government agencies are abusing the system and the privacy commissioner lacks the will and resources to do anything about non-compliance. In effect there is no policing, so government bodies don’t have to take requests seriously,” he says.

“From my perspective, the election promises of a more transparent government paid nothing more than lip service to the idea without doing anything to ensure that the system actually works. Unfortunately, there has not been much exposure of the regime’s failure, and no public outrage about the resulting lack of transparency in decision-making,” Winkler adds.

But he hopes that may change after the Toronto Star recently ran a series of stories detailing the difficulties its reporters regularly run into while trying to gain access to government documents.

In one case, the newspaper was quoted a $32,000 bill by the Toronto Transit Commission to dig up documents on a controversial subway extension, while another reporter says he is still waiting on a response from the RCMP three years on from a request, even after paying an extra fee required by the police force.

Winkler says much of his freedom-of-information experience relates to federal bodies, including the Canada Revenue Agency (CRA). He says most requests start off on the wrong foot.

“The first thing agencies will do is to scrutinize the request for any technical deficiencies. Whether that’s because they’re overwhelmed by the workload or because of an institutional bias against compliance, it allows them to stop the 30-day clock from running,” Winkler explains.

He says a request he sent to the CRA in October 2015 on behalf of a client highlights the multifaceted problems with the administration of access to information.

Although the CRA places no time limits on client authorizations for representatives to act on their behalf in tax matters, Winkler says it takes a different approach to information requests, requiring a current authorization to confirm the client’s consent.

“There is no statutory requirement for these fresh authorizations,” he says.

“In my view, the demand for a current authorization is nothing more than a delay tactic to avoid having to act on the access request in a timely way,” Winkler says. “Once the new authorization was provided, the new 30-day deadline for a response was the middle of December 2015.”

However, after the 30 day period expired, Winkler says he received an extension request from the CRA asking for an extra 270 days to respond. Regarding the length of the extension as “taken late and abusive,” Winkler complained to the privacy commissioner in January 2016.

“All the privacy commissioner had to do was count to 30 to see that the extension sought by CRA was late and therefore invalid,” he says.

Winkler says “incredibly” the commissioner took no steps to deal with the extension complaint until after the CRA finally delivered its response in November 2017, more than two years after the original request.

“The privacy commissioner ultimately responded in December 2017, acknowledging that the CRA’s extension request was improper. However, since the CRA had by then, in fact, responded, it considered the complaint against the CRA to be resolved, with no censure or criticism of CRA whatsoever,” he says.

“This office is supposed to be policing these agencies, but frankly, due to a lack of funding, no power to punish non-compliance and an apparent lack of will it’s failing miserably in the discharge of that responsibility.”

Lawyer for Bloc Quebecois leader serves TV network and panel with legal warning

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QUEBEC — A lawyer for Bloc Quebecois Leader Martine Ouellet has sent a legal warning to a TV network in Quebec and the panellists of a political talk show for recent remarks about her.

Guy Bertrand says Ouellet is taking issue with comments made on “La Joute” on March 8 and he argues they constitute an attack on her reputation.

The panellists’ mission is to dissect political developments in Quebec, the rest of Canada and around the world, and the program often leads to spirited exchanges among the four.

Seven of the Bloc’s 10 MPs quit in late February because of deep-seated differences with Ouellet over her leadership style, and the March 8 edition of “La Joute” included debate on her proposal to settle the differences with a referendum on what the Bloc’s vision should be.

The panellists associated her initiative with a “questionable, dishonest, stupid and absurd manoeuvre” and there were suggestions the referendum question would be written in such a way Ouellet would get the result she wants.

In an interview with AdvocateDaily.com, Toronto litigator and mediator Howard Winkler says that in order to succeed in an action involving the kinds of comments in question, Ouellet would have to demonstrate either that there was specific malice on the part of the panelists she has threatened to sue or that they fundamentally mischaracterized her position on the issue of a referendum question.

“To attack someone’s ideas or positions, especially in the context of the policies of a provincial political party is not, in my view, an attack on Ms. Ouellets’ reputation,” says Winkler, principal and founder of Winkler Dispute Resolution.

He says that often in advance of an election cycle, there’s an increase in the number of threats of defamation actions, “most of which amount to nothing more than political posturing and which are likely to die quiet deaths once the elections are over.”

“Given the nature of the words reported to be the subject matter of the complaint, it is my view that the threat of legal action is most likely nothing more than political posturing on the part of Ms. Ouellet in an effort to impact the nature of future reporting on the issue,” Winkler says. “In my experience, such a tactic, especially against mainstream media, is rarely effective. I don’t expect the media to be chilled in any way by such a threat in these circumstances.”

Bertrand said Ouellet was affected by what she heard, as were her two children and her mother.

The lawyer sent the legal warning on March 19 and gave the network 48 hours to issue a retraction and an apology.

Neither was forthcoming.

Bertrand said Ouellet has a year to decide whether she will seek damages.

— with files from AdvocateDaily.com

© 2018 The Canadian Press

Howard Winkler representing former Ontario PC leader in libel suit

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Toronto litigator and mediator Howard Winkler of Winkler Dispute Resolution is part of a team representing the former Ontario PC leader in a libel claim against CTV, reports Global News.

The libel notice specifically names CTV’s president, anchor and several reporters along with CP24 and other editors, researchers and producers of the initial reporting, the article says.

The notice claims that the allegations made in the CTV report were interpreted to mean that the politician illegally provided alcohol to a person under the age of 19, that he engaged in sexual misconduct, that the allegations against him are true and as a result he is unfit to serve in public office, Global News reports.

The notice of libel also states that the full damages suffered by the former Ontario PC leader cannot be determined and that a full apology or retraction must be published or broadcast on ctvnews.ca and on CTV National News in order to mitigate those damages, reports Global News.

He resigned abruptly on Jan. 24 hours after a CTV News report emerged in which he was accused of sexual misconduct by two anonymous women dating back to when he was a federal MP in the Barrie, Ont., area, CBC reports.

In the notice, the former Ontario PC leader — who has denied the accusations made in the CTV report from the outset — alleges CTV engaged in “false, malicious, irresponsible and defamatory” reporting on its national newscast as well as its news website, the article goes on to say.

In mid-February, it was reported that one of the women had revised some details of her story, CBC reports.

“CTV originally said she was in high school and under the legal drinking age at the time when they met at a bar on the night in question, but later said she was in fact out of high school and was of legal drinking age,” reports CBC.

Winkler tells AdvocateDaily.com that this case is significant for at least three reasons.

“First, it raises the issue of whether the CTV reporting had the effect of subverting the democratic election process in Ontario,” he says.

“Second, it raises the important question of the appropriate journalistic standards to which the media should be held in circumstances such as these.

“Finally, and most importantly, this case provides an opportunity for our client to clear his name,” says Winkler.

CAO tribunal a model for dispute resolution: Winkler

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The new online mediation and tribunal project of the Condominium Authority of Ontario is not only an efficient, low-cost answer to dispute resolution in the condo world — it could also become a model for the resolution of disputes in other areas of law in the future, says Toronto litigator and mediator Howard Winkler.

“If this works it could be revolutionary: it could free up scarce judicial resources and provide for a far less expensive dispute-resolution process,” says Winkler, principal and founder of Winkler Dispute Resolution.

The Condominium Authority Tribunal (CAT), set up three months ago, uses a three-part process to resolve disputes — negotiation, mediation, and a binding ruling as a last resort. The key innovation is that all negotiation and mediation are carried out online, which precludes the need for personal appearances and keeps costs very low — up to $200 if the matter goes all the way to a ruling.

For now, the only issues CAT is eligible to hear are disputes related to condo corporation records, but Winkler tells AdvocateDaily.com that he expects the range of eligible issues to broaden rapidly.

“It’s the province’s first foray into a primarily online tribunal,” he says. “the initial limited jurisdiction provides a good starting point to get their feet wet.”

But Winkler believes the system has the potential for broad application and says “the tribunal’s intention is to enlarge the scope of that jurisdiction, hopefully relatively quickly.”

There are three stages in the CAT dispute-resolution process:

  • Negotiation amongst the parties, all facilitated by CAT’s online tools;
  • Mediation, with the sides communicating electronically through the mediator, who can clarify positions and identify common ground;
  • A tribunal hearing, which may consist of written online submissions or an in-person hearing. So far, no cases have got as far as a tribunal hearing.

Calling the CAT process unique and progressive, Winkler says that the traditional litigation route is not working.

“It’s too expensive, time-consuming, and quite frankly at the end of the day, it’s a bit of a crapshoot in terms of predicting what the result will be. In court, you don’t know who your judge will be, and it could be someone without any subject matter expertise.”

In some cases, arbitration has become as unwieldy as the litigation process, Winkler says.

“This is a self-funded tribunal,” he says. Every condo corporation is required to pay a contribution fee to fund it. Complainants pay extremely modest fees for access to the dispute resolution system: The first-stage fee is $25, the assisted resolution fee, which includes access to a mediator, is $50, and if you end up at the tribunal the fee is $125.

“The authority has assembled an impressive group of panel members with expertise ranging from condominium law to dispute resolution,” says Winkler, who is not on the panel himself. ”It really provides a hopefully quick, but certainly inexpensive, access to subject-matter expertise and the dispute-resolution process, and in that regard, it’s quite brilliant. The tribunal is also given the power to weed out at an early stage claims that are determined to be frivolous, vexatious or brought in bad faith or for an improper purpose.”

The project’s greatest usefulness will come when it is enlarged to deal with other kinds of disputes between owners, residents and the condo corporation, he says. These could include everything from property management and maintenance issues to disputes between unit owners.

In Ontario, 1.6-million people are living in condos, and more than 50 per cent of new homes being built in the province are condominiums, according to the Ontario Ministry of Government and Consumer Services.

“It’s natural that there’s going to be disputes arising between people living in such close proximity and sharing common elements,” says Winkler. “These kinds of neighbourhood-community-type disputes are really quite amenable to a low-cost expedited dispute-resolution process.”

But he sees no reason why the same process couldn’t be used in many commercial conflicts as well.

Such tribunals could reduce the logjam in the court system, he says. And since, under the right circumstances, it could be funded by the users, the financial burden would be removed from the general public.

“More than 90 per cent of all cases before the courts settle before trial, so any mechanism that facilitates dispute resolution — sooner rather than later — is advantageous to the parties, and also in the public interest,” Winkler says.

Premier’s anti-SLAPP law could kill her defamation suit

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Ontario Premier Kathleen Wynne’s defamation action against opposition leader Patrick Brown may fall foul of her own government’s anti-SLAPP legislation, Toronto litigator and mediator Howard Winkler tells AdvocateDaily.com.

Wynne followed through on a threat to sue Brown following a dispute over comments he made when the premier was scheduled to appear as a witness at a trial of two members of her party in Sudbury, Ont., involving allegations of bribery under the Election Act.

Brown refused to apologize for comments that suggested Wynne herself was on trial, rather than testifying as a witness, and denied his statements were defamatory.

Winkler, a defamation lawyer with over 30 years of experience, and principal of Winkler Dispute Resolution, says he doubts the case will ever get to trial, noting that it reminds him of a suit launched by Wynne against Brown’s predecessor, which eventually settled out of court.

In any case, he says Brown will have a strong case for dismissal under provisions added to the province’s Courts of Justice Act to deal with Strategic Lawsuits Against Public Participation (SLAPP).

Passed with all-party support at Queen’s Park, the so-called anti-SLAPP law, which came into force in November 2015, allows defendants to move for dismissal of actions if their comments are considered to be related to a “matter of public interest.”

“The Act provides a screening process for weeding out cases where comments were made on a matter of public interest — even if they were wrong — as long as there was, in the words of the Attorney General’s panel recommending the legislation, no significant harm caused,” Winkler says. “In my view, this is exactly the kind of case it was meant to capture, and it’s hard to imagine that it could ever survive this kind of screening motion.”

He says Wynne will struggle to make a case that she has suffered any significant harm because of the way the suit has played out in public.

“If the real sting in the statements was the suggestion that the premier was on trial, then media reports have made it very clear that she was not, in fact, the accused, but rather just a witness,” Winkler says. “I don’t think the public has been confused or misled by the comment.

“It’s hard to imagine these comments have caused any greater damage to the premier’s reputation than the probably more inflammatory comments made about her in the legislature, where they are protected by absolute privilege, both prior and subsequent to Brown’s statements,” he adds.

If the matter ever makes it to court, Winkler says a judge is unlikely to look kindly on either side.

“I’m not sure it’s in anyone’s interest for scarce judicial resources to be expended on a case such as this,” he says.

Instead, he says the conduct of the parties suggest it’s “more driven by politics than by any legal principles at play.”

“It seems we’re really dealing with political manoeuvring, and the question is whether one side or the other will blink,” Winkler adds.

Honesty, careful language key when posting online review

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While the law does protect the right of Ontario consumers to post negative reviews written in “good faith,” commenters do still run the risk of being tied up in expensive litigation, Toronto litigator and mediator Howard Winkler told The Larry Fedoruk Show on Newstalk 610 CKTV.

Winkler, principal and founder of Winkler Dispute Resolution, told listeners that as long as individuals who choose to post a negative review of a person or business are acting in good faith and honestly, the defence known as ‘fair comment’ has always existed in Ontario law and “is something that an individual could rely on if they post a review which is then the subject of litigation.”

However, he added, “the real concern though for consumers, is not so much the risk of being successfully sued, and one has to worry about that if the review is false or it’s unfair, but the risk of getting tied up in expensive litigation.

“So, even if a defence exists, when one posts a review, they have to remember a few things. One, that the review they’re posting is going to, or could have a real impact on the people or business that they’re commenting on. Two, they should be honest, and they should be responsible and hopefully, if they do those things, they’ll keep themselves out of trouble.

“But one of the big risks is just being the defendant in a lawsuit, which requires the retaining of a lawyer or representing yourself in court,” said Winkler.

The problem today, he explained, is the reach of the reviews — which not only create liability for those posting a comment but can generate problems for businesses who may receive a false review.

“Depending upon the nature of the company, it’s not limited to just the small community that the individual may be in, it’s essentially worldwide in scope. And so, the impact of the comment and the review has been magnified as a result of the advancing technologies.”

Although many people post reviews in a knee-jerk fashion without an appreciation of the fact that the comments could be the basis of a lawsuit against them, Winkler suggested that instead, anyone publishing a review should be careful with their choice of language.

“So, for example, this ‘defence of fair comment’ that I mentioned — instead of saying that someone’s business is bad, one could say ‘in my opinion’ or ‘based on my experience.’ So, instead of being categorical in the comment, to the extent that people can express their view in language that makes it clear that it’s their opinion, then they’re going to be less susceptible to action.”

Also, said Winkler, reviewers should “provide some support for the expression of the opinion so that a reader or anyone who’s listening to the comment can judge for themselves whether to accept or reject the opinion or the comment that you’re expressing.”

Options available for businesses dealing with defamatory reviews

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While the law does protect the right of Ontario consumers to post negative reviews written in “good faith,” commenters do still run the risk of being tied up in expensive litigation, Toronto litigator and mediator Howard Winkler told The Larry Fedoruk Show on Newstalk 610 CKTV.

Winkler, principal and founder of Winkler Dispute Resolution, told listeners that as long as individuals who choose to post a negative review of a person or business are acting in good faith and honestly, the defence known as ‘fair comment’ has always existed in Ontario law and “is something that an individual could rely on if they post a review which is then the subject of litigation.”

However, he added, “the real concern though for consumers, is not so much the risk of being successfully sued, and one has to worry about that if the review is false or it’s unfair, but the risk of getting tied up in expensive litigation.

“So, even if a defence exists, when one posts a review, they have to remember a few things. One, that the review they’re posting is going to, or could have a real impact on the people or business that they’re commenting on. Two, they should be honest, and they should be responsible and hopefully, if they do those things, they’ll keep themselves out of trouble.

“But one of the big risks is just being the defendant in a lawsuit, which requires the retaining of a lawyer or representing yourself in court,” said Winkler.

The problem today, he explained, is the reach of the reviews — which not only create liability for those posting a comment but can generate problems for businesses who may receive a false review.

“Depending upon the nature of the company, it’s not limited to just the small community that the individual may be in, it’s essentially worldwide in scope. And so, the impact of the comment and the review has been magnified as a result of the advancing technologies.”

Although many people post reviews in a knee-jerk fashion without an appreciation of the fact that the comments could be the basis of a lawsuit against them, Winkler suggested that instead, anyone publishing a review should be careful with their choice of language.

“So, for example, this ‘defence of fair comment’ that I mentioned — instead of saying that someone’s business is bad, one could say ‘in my opinion’ or ‘based on my experience.’ So, instead of being categorical in the comment, to the extent that people can express their view in language that makes it clear that it’s their opinion, then they’re going to be less susceptible to action.”

Also, said Winkler, reviewers should “provide some support for the expression of the opinion so that a reader or anyone who’s listening to the comment can judge for themselves whether to accept or reject the opinion or the comment that you’re expressing.”