Canada: Novel Case On Data Exclusion Interpreted In Favour Of Insureds
An Ontario judge recently interpreted a data exclusion in favour of the insureds, ordering the insurer to defend claims arising out of an alleged website security breach.1 A website owned by Family and Children's Services of Lanark, Leeds and Grenville ("FCS"), was breached when an unauthorized party downloaded and published documents stored in a secured section of the website, which contained personal information about individuals who had been the subject of FCS investigations. A broadly worded claim was subsequently brought against FCS, alleging damages resulting from defamation, breach of privacy and other causes of action. Laridae Communications Inc. had provided advice to FCS on the design and security of FCS's website. FCS issued a third-party claim against Laridae.
FCS and Laridae both sought coverage under a CGL policy, Laridae as named insured and FCS as additional insured. Laridae also sought coverage under an E&O policy. There was no dispute that the damages claimed against FCS and Laridae fell within the grant of coverage under these policies, which contained an unqualified duty to defend. The issue was whether these obligations were negated by the policies' respective data exclusions. The CGL policy excluded "'Personal Injury' [which included injuries arising out of defamation and violations of privacy] arising out of the distribution or display of 'data' by means of an Internet Website, the Internet ... or similar device or system designed or intended for electronic communication of 'data'". The E&O policy contained a similar exclusion.
Neither party cited any prior cases interpreting data exclusion clauses. This worked to the insurer's disadvantage. Noting that these exclusions were broadly worded and raised complex issues, the judge was concerned about the consequences of denying the relief sought by the insureds on the record before her.
In the end, the judge ruled in favour of FCS and Laridae, finding there was a possibility that at least some of the damages claimed would not be captured by the data exclusions. The claims against FCS and Laridae alleged damages resulting from electronic and non-electronic (i.e., physical) distribution of information. Damages resulting from physical distribution were not captured by the data exclusions, which only applied to distribution through electronic systems.
This case reaffirms the principle that exclusions are to be read narrowly, not broadly. Particularly where the relevant policy provisions engage complex issues not yet judicially considered, the court may err on the side of finding for the insured. While the judge properly focused on the broad nature of the claim, she did not discuss the scope of the use of the term "distribution or display of data" in both exclusions.
Footnotes
1 Laridae v Co-Operators, 2020 ONSC 2198.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
https://www.mondaq.com/canada/insurance-laws-and-products/942318/novel-case-on-data-exclusion-interpreted-in-favour-of-insureds
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Court Refuses to Apply Liability Policies’ Electronic Data Exclusions, Cites Lack of Jurisprudence
Laridae v. Co-operators, 2020 ONSC 2198 (CanLII)
https://www.canliiconnects.org/en/cases/2020onsc2198
Earlier in May, in Laridae v. Co-operators, 2020 ONSC 2198, an Ontario court was hesitant to offer guidance on the proper application of two “electronic data exclusions” that expressly withdrew coverage for the misappropriation and display of electronic information on the internet. At issue were allegations arising from particularly egregious hacking incidents involving a child protection agency’s website. Noting an apparent lack of guiding authority (“there is no jurisprudence on the proper interpretation of data exclusion clauses”), Pollak J. ordered a liability insurer to separately defend the named and additional insureds.
Underlying Proceedings & Coverage
The named insured was a management consulting firm retained to develop a communications strategy for its client, a public child protection agency. The consultant’s mandate included updating the agency’s website to make it compliant with privacy legislation, and advising on website design and security. Thereafter, the child protection agency’s website was hacked. The consultant advised it had implemented additional security measures and counselled the agency not to remove any confidential information from the website’s secured section. Unfortunately, the website was hacked again. An unauthorized user downloaded sensitive child protection information, which was posted to other websites.
A class-action was brought against the child protection agency, seeking $75,000,000 in damages. The representative-plaintiff alleged the agency failed to properly secure its website, which permitted personal information to become publicly available. In turn, the child protection agency third-partied the consultant, seeking contribution and indemnity for liability arising from the class action allegations; also advancing independent contractual and negligent misrepresentation claims.
The consultant was the named insured under a commercial general liability policy and an errors and omissions liability policy issued by the same insurer (respectively “the CGL Policy” and the “E&O Policy”). The child protection agency was an additional insured under the consultant’s CGL Policy. Both sought defence coverage for allegations arising from the child protection agency’s website hacking incidents. The insurer denied coverage having regard to exclusionary clauses that withdrew coverage for liability arising out of the misappropriation, distribution or display of electronic “data” on websites, the internet, or other electronic media. The definition of “data” under both policies was defined as “representations of information or concepts, in any form.”
Decision
It was not disputed that the allegations fell within both policies’ respective insuring agreements (i.e. the CGL Policy’s “personal injury” coverage and the E&O Policy’s coverage for liability arising “in the course of providing professional services”). The central question was whether each policy’s electronic data exclusion withdrew coverage for the allegations arising from the hacking incidents (i.e. allegations against the agency in the class action and the agency’s third-party claim against the consultant). Pollak J. observed:
… there is no dispute that the allegations in the litigation are covered by the insurance policies as coverage is provided for oral and written publication of materials that is defamatory or a violation of a person’s right of privacy. The only issue on these applications is whether the “Data Exclusion” clauses clearly negate the duty to defend.
Arguing against the data exclusions’ application, the insureds noted that a core element of the consultant’s business involved the creation and handling of electronic “data” (i.e. websites). Consequently, it would be contrary to the parties’ reasonable expectations to permit the insurer to apply data exclusions in a manner that had the effect of “nullifying virtually all the coverage which the insurer contracted to provide.” Observing an apparent lack of guiding authority. Pollak J. ordered the insurer to separately defend both insureds. The Court explained:
[36] I agree that until the courts have had an opportunity to adjudicate the complex issues raised by these broadly worded data exclusion clauses, it would be improper for this court, having regard to present jurisprudence to uphold [the insurer’s] denial of a duty to defend. Further, I [cannot] find on these Applications that [the insurer] has shown that there is no possibility of coverage. I find that [the insurer] has not discharged its onus of establishing that the substance of the Claims clearly fall within the Data Exclusion Clauses and that there is no possibility of coverage under the Policies. Rather, in addition to the issue of the interpretation of the data exclusion clauses, it is apparent that there are claims and allegations in the Class Proceeding and the Third-Party Claim that would not [be] excluded by the Data Exclusion Clauses. As there is at least some possibility that the Claims are covered under the Policies, I find that [the insurer] owes a duty to defend [the consultant] and [the child protection agency]. [Emphasis added]
Comment
Pollak J.’s observation (i.e. that no Canadian decision directs how these exclusions are to be applied) is correct. While there are a few American cases in which electronic data exclusions are referenced, none provide much by way of analytical guidance as to their proper interpretation. Regardless, it is unfortunate that the Court chose simply to observe the analytical gap without addressing it. As the decision was likely to be appealed in any event, perhaps Pollak J. chose simply to resolve the matter in favour of the insureds without muddying the analytical waters during the intervening period.
More importantly, Laridae reflects a troubling trend in coverage litigation. In this instance, the apparent gap in coverage arose because the named insured, whose business involved website consulting, did not have a cyber liability policy. Notwithstanding the wording of the electronic data exclusion, both insureds argued they could reasonably expect the CGL Policy would provide complete coverage against liability arising in the course of the consultant's website advisory business. Respectfully, the insureds’ subjective understanding of coverage and the parties’ objectively determined reasonable expectations are not the same thing. In Canadian courts, insureds have become increasingly more inclined to conflate these two very different concepts to found arguments in favour of coverage. To the extent that such arguments find favour, insurers should be very concerned. A policy of one type should not be transmogrified into another of a very different kind to remedy the insured’s oversight of risk assessment.
In any event, given the damages plead in the class proceedings, I reasonably anticipate this decision will be appealed. If and when the Ontario Court of Appeal provides guidance as to how we apply electronic data exclusions, liability insurers around the world will surely take note.
https://www.canliiconnects.org/en/commentaries/71352
https://www.canliiconnects.org/en/cases/2020onsc2198
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2020: CAS WHISTLEBLOWER ACQUITTED.. NO PASSWORD REQUIRED!
After a four-month investigation, the Smiths Falls police, the Perth crown's office and FCSLLG along with the law firm FASKEN colluded to scapegoat Denham who was charged with hacking and identifying children involved in court proceedings, when in fact she did neither, and earlier this week Ontario Court Justice Charles D. Anderson acquitted her of all charges and cleared her name after trial.
(Fasken is a full-service law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, offering expertise in legal issues affecting all types of industry, government and individual objectives. https://www.fasken.com/en/)
For four years Kelley Denham refused every sweet deal the Perth crown's office offered her in exchange for a guilty plea.. (many times against the best professional advice Kelley couldn't afford)
The online “private portal” hosted by a server in Michigan didn’t have any security and the US based server provided none. No firewall. No password, username or hacker skills required to view unencrypted client, corporate documents and resumes going back to when they the site first went online listed by year and month — just a simple click of a button and you could access its confidential client list, hundreds of other client documents and internal corporate documents considered private for the children’s aid society.
It was Kelley Denham, 32, who blew the whistle on the website’s absence of security and in February 2016 posted some documents online that the board of the children’s aid agency considered confidential.
She wanted the children’s aid society to take it down, and for her trouble, the agency called Smiths Falls Police.
Denham’s life took a rapid turn in April 2016 when police broke through her garage door to execute a search warrant to seize phones, computers, a gaming system, and USB sticks — anything that could store evidence related to her access to the website.
In the early-morning raid, Denham said they put her husband in handcuffs.
“I woke up to police in my bedroom and after I yelled for them to take the ‘cuffs off of him, they did. They also wouldn’t let me call a lawyer.”
On her full acquittal, a relieved Denham said: “I’m glad it’s over. It was four years of my life on hold.
The judge noted that the CAS did not take appropriate measures to secure private information. The judge also noted there were no special computer skills or deception required to access the files, which were not marked as confidential and came with no warnings or disclaimers.
The information was publicly available, the judge ruled. He said there was no hacking and Denham didn’t break any Children’s Aid Society (CAS) laws about identifying children involved in court proceeding.
When Denham first publicized the absence of security on the child-welfare agency’s website, they shut it down and figured it was time to hire a computer security expert.
At the time, the agency’s program manager in charge of the website was Margaret Row. The child-welfare agency hired Margaret Row’s son-in-law, David Schmidt, to investigate what happened and fix any breach of security even though there wasn’t one, according to undisputed facts in the judge’s decision.
Schmidt’s investigation revealed that IP addresses linked to Denham had accessed the children’s aid society’s public website, just like anyone else could.
Schmidt also reported about the website’s absence of security, something Denham, an adult-education teacher, had already exposed. Schmidt made several recommendations to boost security — notably for the child-welfare agency to have two separate websites: one for the online public, and an intranet exclusively for board members with VPN only access..
https://ottawacitizen.com/news/local-news/it-was-four-years-of-my-life-on-hold-cas-whistleblower-cleared-of-hacking-charges
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IT'S NOT ROCKET SCIENCE...
Ontario's CAS grappling with how to monitor privacy breaches. July 17, 2017 ARTICLE SOURCE Toronto Star.
Child welfare workers who pry into electronic records of youth in care are impossible to track, critics warn, with an alert system for possible privacy breaches used only on select files.
The challenge of tracking who is using the system isn't unique to the new system, as previous independent children's aid society databases faced the same problem, according to Elman.
http://yourlegalrights.on.ca/news/ontarios-childrens-aid-societies-grappling-how-monitor-privacy-breaches
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https://netpoint-dc.com/blog/wp-content/uploads/2015/11/1100036-en.pdf
Denham Story Continues:
The agency went against the main recommendation and a few months later, Denham was able to access a spreadsheet that listed more than 250 names of clients of the children’s aid society. She posted a photograph of the hyperlink to access the files but did not post any names.
The judge noted that the CAS did not take appropriate measures to secure private information. The judge also noted there were no special computer skills or deception required to access the files, which were not marked as confidential and came with no warnings or disclaimers.
The information was publicly available, the judge ruled. He said there was no hacking and Denham didn’t break any Children’s Aid Society (CAS) laws about identifying children involved in court proceeding.
“Ms. Denham has been vindicated and her conduct was not only not criminal but ultimately led to the (child-welfare agency) having to fix a very serious problem in their system.
https://www.msn.com/en-ca/news/world/it-was-four-years-of-my-life-on-hold-%E2%80%94-cas-whistleblower-cleared-of-hacking-charges/ar-BB151qq6
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2019: PAGE 29/30 - Trial Testimony.
EXECUTIVE DIRECTOR RAYMOND LEMAY.
I was just repeating what had been explained to me. That the security features of the website, when it was first installed, had not been turned on. That’s what was explained to me, and I am just repeating what I heard.
Q. So, all you know is whoever C.A.S. retained for you working in your position did something incorrectly with respect to the website that caused this issue?
(Does that mean every file FCSLLG upload to the internet and not just client information but every file could have been downloaded by just anyone since FCSLLG's website went online???)
A. That’s what, that’s what I understand, yes.
READ THE COMPLETE TRIAL TRANSCRIPT HERE: https://www.kelleyandderek.com/
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D. David Rakobowchuk: Trial Testimony
-8-
43. Det. Rakobowchuk is himself a member of the above Facebook group. He testified that to join the group, a Facebook user had to request approval from a group administrator.12
44. Det. Rakobowchuk testified that there was no breach of password or anything similar used to gain access to the spreadsheet in question:13
Q. And, just for the purpose of the record, you have referred to — the information you got there was a hack, I guess?
A. Yes.
Q. But, as the investigation went on it was very — it became clear that there was no actual, I guess, a breach of a password, or anything like that used to gain this information?
A. Exactly.
READ THE COMPLETE TRIAL TRANSCRIPT HERE: https://www.kelleyandderek.com/
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M.M. v. Lanark, Leeds and Grenville Children’s Aid Society, 2018 ONSC 5032 (CanLII) 2018-08-23.
[20] Ms. Denman, who is the central actor either as a commendable whistleblower or as a deplorable newsmonger and hacker and leaker of confidential information is seriously inconvenienced and possibly prejudiced by having to defend or prosecute the various proceedings in Toronto, where she has been unable to obtain a lawyer to represent her.
[1] In 2016, pursuant to the Class Proceedings Act, 1992,[1] M.M., who had been subject to a child protection inquiry, brought a proposed class action against: (a) Family and Children’s Services of Lanark, Leeds and Grenville (“the Society”), a children’s aid society, then regulated by the Ministry of Children and Youth Services of the Ontario government; (b) Raymond Lemay, the Executive Director of the Society, (b) Tracy MacCharles in her capacity as the Minister of Children and Youth Services, (d) Her Majesty the Queen in Right of Ontario (“Ontario”), and (e) Jane Doe, who was later identified in an Amended Statement of Claim to be (f) Kelley Denham.
[2] On December 21, 2017, M.M. moved for certification of her action as a class action. The Defendants consented or did not oppose certification, and the action was certified as a class proceeding against the Society to advance three causes of action; namely: negligence, intrusion upon seclusion and breach of section 7 of the Canadian Charter of Rights and Freedoms; and against Ms. Denham to advance an intrusion upon seclusion claim.[2]
[3] In the class action, the Class Members claim $75 million in general, special, and punitive damages from the Society and $1 in damages from Ms. Denham.
[4] After the certification of the action, the pleadings were completed. The Society delivered a Statement of Defence and included a Crossclaim for contribution and indemnity from Ms. Denham, whom it blamed for the disclosure of the Class Member’s private and confidential information.
[5] Ms. Denham delivered a Statement of Defence and included a $15 million Crossclaim against the Society Defendants for negligence, intrusion upon seclusion, breach of section 7 of the Canadian Charter of Rights and Freedoms, defamation, abuse of process, and intentional infliction of emotional distress.
[6] Now before the court are several motions for a diverse mix of procedural and evidentiary orders.
a. M.M. seeks to discontinue her action against Ms. Denham.
b. The Society, which, as noted above, had crossclaimed against Ms. Denham, seeks an Order converting its Crossclaim into a Third Party Claim and converting Ms Denham’s Crossclaim into a Counterclaim in the Third Party Action.
c. The Society seeks an Order that the Third Party Action including its Counterclaim be case managed in Toronto as a part of the class action and be tried together with or immediately following the class action.
d. The Society seeks a sealing order. The sealing Order is said to be required to address confidentiality concerns arising because of s. 87 (8) of the Child Youth and Family Services Act, 2017[3] and s.70(1) of the Children's Law Reform Act.[4]
e. Ms. Denham does not oppose the continuation of the crossclaims within a Third Party Action, but she opposes the request for case management in Toronto and asks the court to transfer the Third Party Action to Perth, where she lives and where apparently she will have a lawyer prepared to act for her in defending the Third Party Action and in prosecuting her Counterclaim.
[7] The request for a sealing order, which was not opposed, should be granted.
[8] Section 87 of the Child Youth and Family Services Act, 2017 prohibits the publication of information that has the effect of identifying a child who is the subject of a child protection proceeding.
[9] In order to defend itself to Ms. Denham’s Crossclaim or Counterclaim, the Society may need to identify a child who is the subject of a child protection proceeding, and the Society is rightly concerned that there be no breach of s.87 of Child Youth and Family Services Act, 2017 or of s.70 (1) of the Children's Law Reform Act.
[10] The Society’s request for a sealing order will permit it to defend itself to Ms. Denham’s Crossclaim or Counterclaim without beaching these statutes.
[11] Moreover, a sealing order would be appropriate in accordance with the common law test for sealing a court file or otherwise limiting the open court principle.[5]
[12] Turning to the other requests for relief, the only area of contention is whether the class action and the third party proceeding should be case managed in Toronto or whether these actions should be transferred and case managed by a judge of the East Region of this court.
[13] M.M., who is represented by Flaherty, McCarthy LLP, a downtown Toronto law firm, and the Society Defendants, who are represented by Fasken Martineau DuMoulin LLP, a downtown Toronto law firm oppose the transfer of the action to the East Region.
[14] Apart from the location of M.M.’s and the Society Defendants’ lawyers, there is nothing to connect the proposed class action to Toronto. All the events in the class action, all the events in the third party proceedings, and all the events in the counterclaim in the third party proceeding occurred in the East Region.
[15] The class action and the third party proceeding are inextricably interwoven, with multiple overlapping issues of fact and law to be determined. There is a substantial overlap between the events of the class action and of the third party proceeding, which should not be separated, and where there is no overlap, the events have no connection to Toronto.
[16] Although the current litigation plan does not envision any individual proceedings, if the Class Members were to advance individual claims for idiosyncratic special or general damages caused by the release of the private and confidential information, the venue of those individual proceedings would have no connection to Toronto unless the Class Member happened to have moved.
[17] Apart from the convenience to counsel, there are no advantages to having the class action managed in Toronto and there is no advantage to having the various actions determined by trial or by summary judgment motion in Toronto.
[18] Ms. Denham’s, M.M.’s and the representative of the Society’s examinations for discover will or should occur in the East Region where the parties reside.
[19] The events of the various actions, which attracted the attention of the media in Perth, Ontario, are of interest to the citizens of the East Region, who have an interest in the operation of their local children’s aid societies, but the events are of little more than of prurient interest to the citizens of Toronto.
https://www.canlii.org/en/on/onsc/doc/2018/2018onsc5032/2018onsc5032.html?searchUrlHash=AAAAAQANS0VMTEVZIERFTkhBTQAAAAAB&resultIndex=2
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Unfair or Indefensible - Costs Against C.A.S.?
On behalf of Gene C. Colman Family Law Centre posted in Child Welfare on Tuesday, January 7, 2014.
There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal (Ontario Family Law Rules, R. 24(1)). There is, however, no such presumption for costs in a child protection case (Rule 24(2)). Does that mean that a successful parent can never obtain a costs order against a children's aid society? Let us delve a little further.
The lack of presumption for costs is perfectly understandable. The Courts have been hesitant to impose cost orders against children's aid societies as they are faced with the difficult statutory duty of protecting children from harm and the law tells us that they should not be punished (through costs orders) for errors of judgment. A further reason for courts rarely awarding costs against societies stems from the view that societies should not be discouraged from taking action because of the risk of an adverse costs order.
Rule 24(2) does not give children's aid societies the authority to behave with impunity though. The courts have (and will) order costs against children's aid societies in limited circumstances. For example the 2013 matter of Catholic Children's Aid Society of Toronto v. SSB awarded costs to the mother and Office of the Children's Lawyer for the procedural failings of the CCAST. This case affirms the courts' approach in awarding costs against children's aid societies in that a society will not be shielded from costs where its behaviour is "unfair or indefensible or where exceptional circumstances exist".
In SSB the CCAST sought disclosure of "clinical investigation notes" from the OCL. The OCL claimed that the requested documents were subject to solicitor-client privilege and therefore could not be disclosed as the disclosure would amount to a serious breach of trust between the OCL and the children. The prevailing concern was that the CCAST had sought to obtain the privileged documents on three separate occasions (only to withdraw their motion before a decision could be delivered) and had put the mother and OCL to considerable expense in defending the motions. The judge considered that the repeated attempts to obtain disclosure was tantamount to an abuse of process and verged on acting in bad faith. The judge, most helpfully, summarized the responsibility of the CCAST as follows [at paragraph 12]:
... Like any other litigant, the society must conduct itself according to the rules. It is given broad investigative scope, and cannot and should not be liable for costs for actions it takes in good faith in its duty to investigate cases. That, however, does not give a society licence to ignore the general rules of procedural fairness. When it does, it should be liable in costs.
The CCAST matter also made reference to the 2005 decision of Children's Aid Society of Niagara Region v. B. (C.), which provides guidance for the circumstances when children's aid societies should and should not be liable for costs. These can be summarized as follows [paragraphs 89-100]:
1. Bad Faith Not Required: To attract an adverse award of costs, a children's aid society need not have acted in bad faith;
2. Fairness: Costs may be awarded against a society, "where it conducts itself... in a way where it would be perceived by ordinary persons as having acted unfairly";
3. Indefensible Behaviour: Many cases hold that a children's aid society should only be visited with an adverse award of costs where it has taken a step or position that is "indefensible", ie. "admitting of no defence".
4. Exceptional Circumstances: There is a line of decisions holding that costs should not be awarded against a society "unless exceptional circumstances exist";
5. Error in Judgment not sufficient to attract costs: A society should not be punished for a mere error of judgement (an error of judgement can truly arise only where one has considered all courses of action reasonably available at the time);
6. Society Not to Be Dissuaded by Costs: A society should not be dissuaded from its statutory mandate by costs considerations;
7. Society to Re-assess Its Position: A children's aid society must be even-handed and act in good faith. To this end a society must be prepared to re-assess its position as an investigation unfolds and more information becomes known;
8. Accountability: "Children's aid societies must be accountable" for the manner in which it investigates a case and in the way it chooses to litigate that case (one method of achieving accountability is through costs sanctions);
The judge in CASNR tells us that a society can attract an adverse costs award where it fails in any of the following seven areas (paragraph 102):
1. Investigation before apprehension;
2. Continued investigation after apprehension;
3. Consideration of all appropriate protective measures;
4. Formation of a fair and defensible position;
5. Reassessment of that position as circumstances warrant;
6. Use of properly trained workers; and
7. Accessing independent experts in the field of child psychology.
This more critical approach adopted by some courts should provide some modest encouragement to parents who have been subjected to biased investigations or litigation undertaken by a children's aid society where the C.A.S. actions were patently unfair or indefensible. These factors should be relevant not only to a costs determination but also to the expected standard of care to which child protection authority must adhere. Holding these agencies accountable to such standards should hopefully be encouraged by the case management judge as the case unfolds.
If you have a matter where a children's aid society has acted unfairly, indefensibly or there are exceptional circumstances, you may benefit from a consultation with our experienced child welfare lawyers.
Tags: CAS, Child Custody, Child Protection, Child Welfare, Children's Aid Society, Costs, Procedural Fairness
Related Posts: THE EASTER BUNNY AND C.A.S. ABUSE OF POWER, Do's and Don'ts of a CAS Apprehension of Your Child, C.A.S. Attitude: Win child welfare cases at all costs, PROPORTIONALITY, SUMMARY JUDGMENT, SELF REPRESENTED CHILD WELFARE LITIGANTS
https://www.complexfamilylaw.com/blog/2018/03/the-easter-bunny-and-cas-abuse-of-power.shtml
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THE ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN -and- KELLY J. DENHAM.
APPEARANCES: FOR THE CROWN: Mr. Corbella
FOR THE DEFENDANT: Mr. Mansour
REASONS FOR JUDGMENT
These are reasons for judgment concerning Kelly J. Denham who stands charged with the following counts under the Criminal Code of Canada, and the Child and Family Services Act of Ontario, specifically:
- Criminal Code s. 430(1.1)(c): that between 31 January 2016 and 18 April 2016 she did obstruct, interrupt or interfere with the lawful use of computer data of the Family and Child Services of Lanark, Leeds and Grenville.
- Criminal Code s. 430(1.1)(d): that between 31 January 2016 and 18 April 2016 she did obstruct, interrupt or interfere with a person in the lawful use of computer data, or denied access to computer data to a person who was entitled to access it.
- Criminal Code s. 342.1(1)(c): that between 31 January 2016 and 18 April 2016, she did fraudulently and without colour of right, use, or cause to be used, directly or indirectly a computer system with intent to commit an offence under s. 430 in relation to computer data.
And under the Child and Family Services Act
- Child and Family Services Act of Ontario s. 76: that on 18 April 2016 she published information that has the effect of identifying a witness at, or a participant in a hearing, or a party to a hearing, to wit; the names of clients of Family and Children Services.
- Child and Family Services Act of Ontario s. 45(8): on 18 April 2016 did publish information that has the effect of identifying a child who is a witness at, or a participant in a hearing, or the subject of a proceeding, or the child’s parents, or foster parents, or a member of the child’s family, to wit; the names of clients of Family and Children Services.
The trial took place before me at Perth. It was agreed by counsel that the information alleging offences under the Criminal Code would be tried together with the information under the Child and Family Services Act of Ontario, with the evidence received applying to both.
At the conclusion of the evidence on 15 August 2019, counsel requested and I agreed to an adjournment for oral and written argument. Argument was finally concluded on 17 December 2019, and the matter was adjourned ultimately to this date for judgement.
Read more here shortly @ http://kelleyandderek.com/
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Ontario's Whistleblower Regime: Civil Cause of Action for Reprisals Now Possible.
The amendments provide that any relevant whistleblower claiming an improper reprisal may bring an action in the Ontario Superior Court of Justice or make a complaint to be resolved by binding arbitration. In any such case, the company will have the legal burden of proof to demonstrate that it did not engage in a reprisal.
Under the Ontario Securities Act, the OSC may take enforcement action against corporations who take reprisals against whistleblowers.
https://www.mcmillan.ca/ontarios-whistleblower-regime-civil-cause-of-action-for-reprisals-now-possible
https://www.kcyatlaw.ca/what-is-whistleblowing-guide-whistleblowing-in-canada/
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DENHAM WAS LUCKY TO DIG OUT FROM UNDER THE AVALANCHE THE CAS HAD DUMPED ON HER..
Denham’s life took a rapid turn in April 2016 when police broke through her garage door to execute a search warrant to seize phones, computers, a gaming system, and USB sticks — anything that could store evidence related to her access to the website.
In the early-morning raid, Denham said they put her husband in handcuffs.
“I woke up to police in my bedroom and after I yelled for them to take the ‘cuffs off of him, they did. They also wouldn’t let me call a lawyer.”
On her full acquittal, a relieved Denham said: “I’m glad it’s over. It was four years of my life on hold and it's not over yet.
https://canoe.com/news/local-news/it-was-four-years-of-my-life-on-hold-cas-whistleblower-cleared-of-hacking-charges/wcm/2f3b7325-e10e-438e-add8-c078b7508921
https://www.recorder.ca/news/local-news/cas-whistleblower-acquitted
https://www.recorder.ca/news/local-news/decision-in-fcs-breach-expected-next-month
https://www.facebook.com/CTVNewsOttawa/posts/kelley-denham-28-and-derek-flegg-50-are-facing-several-charges-including-mischie/1100924280021437/
Stay tuned for for Kelley's police interrogation video to be posted shortly and I believe we have copies of the deals the College of Social Workers and the Crown wanted Kelley to sign..
Truth usually goes through three stages – First, it is ridiculed, then it is opposed and finally it is accepted as being self-evident.
https://www.therecord.com/news-story/6503453--disgruntled-client-posts-names-of-285-children-s-aid-families-on-facebook/
https://www.thestar.com/news/canada/2016/04/18/childrens-aid-families-names-posted-online.html
The case was never a Whodunit..
After a four-month investigation (?), Denham was charged with hacking and identifying children involved in court proceedings, when in fact she did neither, and earlier this week Ontario Court Justice Charles D. Anderson acquitted her of all charges and cleared her name after trial.
Fady Mansour, the lawyer who won the acquittals, said his client was pleased with the result.
https://www.youtube.com/watch?v=7fDuNuFNG38
https://ottawacitizen.com/news/local-news/police-probe-leak-of-ids-of-lanark-leeds-and-grenville-childrens-aid-clients-over-web
https://www.1310news.com/2016/04/19/hundreds-of-names-of-families-involved-with-childrens-aid-posted-online/
https://ottawa.ctvnews.ca/names-of-285-people-referred-to-children-s-aid-in-lanark-leeds-and-grenville-posted-online-1.2865944
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There is a major power imbalance between an impoverished parent (we know that families of low socio-economic status are hugely overrepresented in the child welfare system) and a privately operated multi-billion dollar government funded non profit corporation (state agency). To guard against such an imbalance, it is critical that our legal system respect the time-tested procedural safeguards developed to specifically ensure that the disadvantaged party is treated fairly.
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2015: Meet former director of service for FCSLLG Kim Morrow..
This is Denham's meeting with Kim Morrow to discuss FCSLLG's complaint process. (Kim does not know she's being recorded)
https://www.youtube.com/watch?v=kq6JCx5FlfA&list=PLsYhw09i3If44rMBDuZQ0ztayzSQU35Fy&index=19&t=1821s
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CONSENT TO INTERCEPTION - CANADA.
Documenting the facts is not a crime...
Broadly speaking, Canadians can legally record their own conversations with other people, but not other peoples' conversations that they are not involved in.
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part. [1993, c.40, s.2.]
The Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code] imposes a general prohibition on interception (recording) of private communications, but then provides an exception where one of the parties to the private communication consents to the interception of that communication. Thus, broadly speaking, Canadians can legally record their own conversations with other people, but not other people's conversations that they are not involved in.
Other legislation in Canada protects various privacy rights, but does not prevent Canadians from recording their own conversations with others.
http://www.legaltree.ca/node/908
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Public sector salary disclosure 2017: organizations with no salaries to disclose.
Information on all public sector organizations, covered under the Public Sector Salary Disclosure Act, with no employees who earned $100,000 or more in 2017.
Brown Derrick $101,674.15 $158.34 FCSLLG Human Resources Manager
Eastwood Jennifer $116,121.74 $140.07 FCSLLG Director of Corporate Services
Edmundson Nicola $101,143.12 $158.34 FCSLLG Senior Counsel
Fleet Michael $106,097.47 $158.34 FCSLLG Director of Service
Harper Penny $101,610.27 $158.34 FCSLLG Manager of Finance
Jonkman Debbie $104,048.11 $927.59 FCSLLG Service Manager
Knapp-Fisher Cathie $111,006.23 $158.34 FCSLLG Director of Operations and Innovation
Leblanc Dana $102,348.80 $158.34 FCSLLG Service Manager
Lemay Raymond $194,498.98 $9,123.92 FCSLLG Executive Director
Marcotte Erin Lee $106,097.47 $158.34 FCSLLG Director of Service
Morrow Cynthia $103,591.80 $158.34 FCSLLG Service Manager
Simon Siju $106,462.80 $158.34 FCSLLG Service Manager
Thomas Stephanie $101,611.80 $158.34 FCSLLG Service Manager
Von Cramon Karynn $112,779.01 $158.34 FCSLLG Manager of Legal Services
https://www.ontario.ca/page/public-sector-salary-disclosure-2017-organizations-no-salaries-disclose
"Still more sunshine around."
By Ronald Zajac, Recorder and Times Monday, April 3, 2017
Family and Children’s Services of Lanark, Leeds and Grenville contributed 14 names to the 2016 Sunshine List, led by former director of operations and innovation Kimberley Morrow, who earned $135,132.45 ($158.34 an hour), followed closely by the organization’s executive director Raymond Lemay, at $126,404.79 ($6,271.86 an hour).
Manager of Legal Services Karynn Von Cramon made $111,941.48 ($158.34 an hour).
Director of Corporate Services Jennifer Eastwood earned $114,935.99 ($158.34)
http://www.recorder.ca/2017/04/03/still-more-sunshine-around
Lake 88.1 “In Focus”interview with LAO’s Andreas Von Cramon and Nathalie Champagne: Date: April 8, 2014.
Description: Transcript of April 8th, 2014 “In Focus” interview by Bob Perreault from Lake 88.1 FM in Perth and Andreas Von Cramon, Supervisory Duty Counsel Criminal/Family Law and Nathalie Champagne, District Area Director, Ottawa Region.
Anderas von Cramon Supervisory Duty Counsel Family, Criminal Law in Brockville, Lanark, Leeds and Grenville and is married to the CAS in house lawyer for FCSLLG, Karynn Von Cramon.
Anderas von Cramon operates a free family law clinic for families dealing with the CAS out of the courthouse to provide advice to people and to help them to prepare for family law cases, or to try to resolve their family cases outside the court. (sign consent forms and service agreement)
Parents go in praying for competent representation and good advice and instead get someone willing to bill legal aid to guide the parents through the process of having all their rights, dignity and children stripped away from them. According to legal aid right now family lawyers willing to accept legal aid bill an average of $40 000 dollars per case for not filing documents or filing them after the court has already granted the society a supervision order.. Or the society requests the judge order the parents to sign consent or service agreements after the parents have refused to sign anything and the judges oblige the society by ordering the parents to just cooperate.
Anderas von Cramon also gives basic help drafting documents. Basic means what? It means no help swearing in and filing documents or serving the document before the deadline - which means he does less than nothing.
https://www.legalaid.on.ca/en/news/newsarchive/downloads/2014-04-08_In%20Focus%20interview.pdf?t=1495843200036
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