Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 (Supreme Court of Canada): I represented an intervener as co-counsel and agent in this case, involving Google being ordered to globally de-index all links to the defendant’s websites around the world.
We argued that the Court should develop and apply a legal test for online content takedown, that respected freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, and tried to establish that the Internet is a protected medium of communications. (My observations from the hearing here.)
TELUS Communications Inc. v. Avraham Wellman, 2019 SCC 19 (Supreme Court of Canada): I represented an intervener as junior counsel, co-authoring the factum and appearing at hearing as second chair, in a case about whether or not mandatory arbitration clauses in contracts of adhesion should apply to small businesses in Ontario.
We argued that in context of the radical marketplace shifts resulting from a digitized society, many small businesses such as sole proprietors, freelancers, “prosumers“, and gig economy workers effectively operate with a similar lack of commercial and legal sophistication as average consumers, and thus should be similarly protected in disputes with much larger corporations. (Twitter summary here.)
Uber Technologies Inc., et al. v. David Heller (Supreme Court of Canada, File no. 38534): I represented an intervener as junior counsel and co-authored the factum, in a class action case about whether or not Uber drivers were bound by non-negotiable standard-form arbitration clauses in their terms of service with Uber (which would have required drivers to individually arbitrate claims in the Netherlands).
We argued that forced arbitration clauses in contractual relationships of asymmetrical power were invalid on grounds of unconscionability, and that access-to-justice considerations militated against staying the class action and forcing vulnerable “gig economy” workers to arbitrate claims on their own in the Netherlands (including being responsible at the outset for their own travel, arbitration, and legal expenses).
(TELECOMMUNICATIONS LAW AND POLICY)
During the first several years of my career, I was involved in every major telecommunications proceeding implicating the public interest, that arose at the Canadian Radio-television and Telecommunications Commission (CRTC). This includes the following in particular:
Proceeding: Examination of differential pricing practices related to Internet data plans (Telecom Notice of Consultation 2016-192)
The Story: “The net neutrality /zero-rating one.” Bell Mobility favoured its own mobile video app by not charging for data to use it (vs. charging for data to watch Netflix)–a.k.a. zero-rating. The CRTC said this violated net neutrality. Videotron zero-rated music from certain commercial music streaming apps. The CRTC launched a general proceeding on the legitimacy of zero-rating in Canadian telecommunications law. Client’s goal: ensure the CRTC upheld net neutrality and banned discriminatory zero-rating practices as illegal. (Spoiler: we won.)
Key Issues: net neutrality, zero-rating, Internet competition and choice, innovation
Proceeding: Review of basic telecommunications services (Telecom Notice of Consultation 2015-134)
The Story: Plain old telephone is legally considered a basic telecommunications service in Canada. Broadband Internet access should be a basic service, too. (The CRTC agreed.)
Key Issues: broadband Internet, basic service, universal service objective, universal access, broadband affordability, Internet affordability
Proceeding: Development of the Commission’s broadband funding regime (Telecom Notice of Consultation 2017-112)
The Story: The CRTC had to decide how to allocate $750 million to roll out new broadband networks across Canada. My client’s goal was to ensure this public funding went towards community, non-profit, Indigenous, and municipal broadband initiatives–and not to large, commercial Internet service providers who already ruled the market.
Key Issues: broadband Internet affordability, community broadband, rural broadband, broadband competition and choice
Proceeding: Reconsideration of Telecom Decision 2017-56 regarding final terms and conditions for wholesale mobile wireless roaming service (Telecom Notice of Consultation 2017-259)
The Story: Sugar Mobile sold ultra-cheap mobile phone and data plans using a workaround in Ice Wireless’s roaming agreement with Rogers. The CRTC said this wasn’t allowed. The federal Minister of Innovation, Science, and Economic Development returned the decision to CRTC and told them to reconsider. Client’s goal: persuade CRTC to order national carriers to open up mobile wireless networks to independent competition.
Key Issues: mobile virtual network operators (MVNOs), WiFi-first MVNOs, mobile wireless competition, mobile wireless affordability
Proceeding: Review of wholesale services and associated policies (Telecom Notice of Consultation 2015-551)
The Story: Fibre is the future of the Internet–not DSL, copper, or non-hybrid coaxial cables. Canada’s largest Internet service providers had a legacy head start on fibre networks and could price out the competition from independent ISPs for good, unless the CRTC ordered them to provide wholesale access to fibre (FTTP) networks on fair terms. Fortunately, the CRTC did (kind of).
Key Issues: FTTP (fibre-to-the-premises) broadband Internet, Internet access competition and choice, independent service providers, wholesale service policies
Proceeding: Review of the Wireless Code (Telecom Notice of Consultation CRTC 2016-293)
The Story: The Wireless Code provides consumer protection in buying cell phones and mobile wireless plans. The CRTC created it in 2013 and launched this proceeding to evaluate its performance. Client’s goal: update the Wireless Code to close demonstrated loopholes, strengthen consumers’ rights, and ensure effective enforcement.
Key Issues: consumer protection, mobile wireless competition, mobile wireless sales practices, device unlocking, data caps, contract terms, consumer rights, innovation
CONSULTATION SUBMISSIONS AND BRIEFS
In addition to representing clients in formal legal proceedings, I have written briefs and submissions to various government consultations and parliamentary committees on a range of issues, including digital trade, privacy, intellectual property and copyright reform, Internet affordability, and the importance of public interest advocacy:
Submission to the Ministry of Government and Consumer Services Consultation: Strengthening Privacy Protections in Ontario (coordinated and co-authored submission by the Citizen Lab)
Brief to the House of Commons Standing Committee on International Trade:
Priorities of Canadian Stakeholders Having an Interest in Bilateral and Trilateral Trade in North America, Between Canada, United States and Mexico, specifically regarding
North American Free Trade Agreement (NAFTA), copyright, and digital trade (more information)
Submission to Canadian Heritage consultation:
Canadian Content in a Digital World (more information)
Submission to Standing Committee on Alberta´s Economic Future:
Review of the Personal Information Protection Act (more information)
Submission to the Federal Court of Appeal and Federal Court Rules Committee:
Review of the Rule on Costs (more information)
Submission to Ministry of Innovation, Science, and Economic Development (Industry Canada):
Bell Canada’s Petition to the Governor in Council to Vary Telecom Regulatory Policy CRTC 2015-326, Review of wholesale wireline services and associated policies (more information)