Canada: Constitutional Law News, Procurement Law News, And Privacy Law News

Constitutional Law News

Insite Constitutional Challenge

Canada (Attorney General) v. PHS Community Services Society et al, 2011 SCC 44, [2011], 3 S.C.R. 134:

On September 30, 2011, the Supreme Court of Canada unanimously held that the federal government's failure to provide the exemption required for Vancouver's supervised safe injection site (known as "Insite") to operate constituted a breach of the Canadian Charter of Rights and Freedoms. Insite requires an exemption from the Controlled Drugs and Substances Act ("CDSA") in order to permit clients to bring controlled drugs into its premises for supervised injection. The petitioners asserted that the CDSA improperly interfered with the province's core constitutional competence over health services and, alternatively, if the CDSA provisions were valid as a matter of division of powers, that their application to Insite was inconsistent with section 7 of the Charter as their application would prevent addicted persons from obtaining potentially life-saving health services.

While the SCC recognized the delivery of health services as a matter within exclusive provincial competence, it held that the evidence did not establish that the provision of supervised injection services fell with the "core" of that competence and dismissed the argument based on interjurisdictional immunity. The Court also found the substantive offences created by the CDSA were themselves constitutional, on the basis that the CDSA also included a provision enabling exemptions, thus providing a means to avoid the application of substantive offences where the result would be arbitrary, overbroad or grossly disproportionate. However, in denying Insite an exemption, the Minister had breached section 7 by his exercise of the statutory discretion. The denial was arbitrary, as the information available not only demonstrated that Insite's operation did not undermine the health and public safety objectives of the CDSA, it demonstrated that Insite actually furthered those objectives. The denial was also grossly disproportionate, as the evidence established that Insite saves lives while having no discernible negative impact on the CDSA's objectives. The SCC directed the Minister to provide Insite with an exemption forthwith. When exercising his discretion regarding exemptions in the future, the Minister must strike an appropriate balance between public safety and public health goals.

Right to Life

Carter et al. v. Canada (Attorney General), British Columbia Supreme Court, Vancouver Registry No. S112688 (judgment on reserve):

This case involves a challenge under sections 7 and 15 of the Canadian Charter of Rights and Freedoms to the provisions of the Criminal Code that create an absolute prohibition against physician-assisted dying. It is asserted that it is unconstitutional for the criminal law to prevent grievously and irremediably ill persons experiencing intolerable suffering from seeking a physician's assistance to die. The plaintiffs argue that the impugned provisions have a disproportionate and discriminatory impact on physically disabled persons who are, as result of their disability, unable to commit the lawful act of suicide without assistance. They further argue that the impugned provisions unjustly deprive grievously and irremediably ill persons of their rights to life, liberty and security of the person by depriving them of the right to make and take action on personal decisions of fundamental importance and to make fundamental decisions regarding their own lives and medical care.

The case asks the courts to revisit the decision of the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, in light of significant intervening developments in Charter law and significant new factual evidence. The new factual evidence includes detailed expert evidence regarding regimes in the following jurisdictions where physician-assisted dying has since been legalized: Oregon, Washington, Colorado and Georgia in the United States, the Netherlands, Belgium, and Luxembourg in Europe, and Colombia in South America. The judgment of Madam Justice Lynn Smith has been on reserve since December 16, 2011.

Historic First Nations Health Agreement

On October 13, 2011 the First Nations Health Council and First Nations Health Society (now the Interim First Nations Health Authority) signed a landmark legal agreement with the federal and provincial governments that will ensure B.C. First Nations have a major role in the planning and management of health services for First Nations through a new First Nations health governance structure. The British Columbia Tripartite Framework Agreement on First Nation Health Governance paves the way for the federal government to transfer the planning, design, management and delivery of First Nations health programs to a new First Nations Health Authority over the next two years. The First Nations Health Authority will incorporate First Nations' cultural knowledge, beliefs, values and models of healing into the design and delivery of health programs that better meet the needs of First Nations communities.

Procurement Law News

Disgruntled proponents get creative...

The 2011 BC case of Metercor Inc. v. Kamloops shows a new way for a disgruntled bidder to challenge a procurement decision that has gone against them. In this case, the City of Kamloops issued a request for proposals for the installation of water meters. The unsuccessful proponent (CMI) brought an action for judicial review of the City's decision to enter into negotiations with the successful proponent (Neptune).

The RFP set out a two stage evaluation process. Proposals were first scored for their technical merits and only those proposals that scored at least 75% on this basis (56.25 marks) went on to be assessed on the basis of price. Neptune was the only proponent who scored over 75% and was therefore the only proponent whose price was considered and became the preferred proponent by default. The fact that proposals would be evaluated on this basis was set out in the RFP and the court held that the City fully complied with the RFP in this respect and had treated all bidders fairly and equally in the evaluation. However, the court held that the decision to use this form of two stage evaluation process was in itself unreasonable.

The City's procurement policy stated that "price and quality are major considerations". The court concluded that imposing a cut off below which price was not considered resulted in eliminating price entirely from the decision making process. They gave an example of a proponent who scored 55 marks for quality, but who gained 25 marks on price, as against a proponent who scored 57 marks on quality, but 10 marks on price. In the court's view, eliminating the proponent with a total score of 80 marks in favour of a proponent with a total score of 67 marks was unreasonable. It was therefore unreasonable for the City to create a procurement process that had the potential to give rise to this result. The court remitted the matter back to the evaluation committee, requiring them to consider the prices submitted by all proponents. Interestingly, it is unlikely that CMI would be any better off with this result – their technical score was 38.53, against 67.68 for Neptune and 47.18 for the third proponent. Even if CMI scored 25 points on price and Neptune zero points, Neptune would still score higher than CMI.

This decision raises a new challenge for procuring bodies (such as hospitals). Previously, the main challenge was to ensure that you complied with the provisions in the RFP, treated all proponents fairly and equally and without bias. Now, it appears that a proponent can submit a proposal and, if it is unsuccessful, can challenge the whole basis of the RFP. Establishing evaluation criteria is often a challenging process – how to weigh quality against price, which aspects of quality should have more or less weight and so on. This case therefore underlines the need to run a 'sense-check' of the evaluation criteria before sending out the RFP. What will happen if bids are submitted on widely differing bases? Do the criteria have the potential to produce an undesirable or unreasonable result? Carrying out this check in advance would assist in rebutting any subsequent challenge from the inevitably disgruntled losing proponents.

Privacy Law News

Amendments to BC FOIPPA - Privacy Impact Assessments

BC FOIPPA was amended this Fall and it is now mandatory for a public body (such as a hospital) to complete a privacy impact assessment, and submit it to the Office of the Information and Privacy Commissioner for review, if the public body intends to engage in a "common or integrated program or activity" (for example, a designated project between a health authority and a private sector organization involving the use of personal information) or a "data-linking initiative" (for example, an initiative involving personal information from separate databases being combined for a new purpose).

Ontario Court of Appeal recognizes the tort of "intrusion upon seclusion"

In British Columbia, Manitoba, Saskatchewan and Newfoundland, there is legislation providing a general statutory cause of action (civil claim) for a breach of privacy in certain circumstances. However, the statutory right to bring a civil claim for a breach of privacy does not exist in all provinces. Earlier in January 2012, the Ontario Court of Appeal issued a unanimous decision in Jones v. Tsige, 2012 ONCA 32, which recognized, at common law, the tort of "intrusion upon seclusion" (a particular type of privacy breach) and awarded $10,000 in damages to Ms. Jones. The "intrusion" arose in Jones v. Tsige because Ms. Tsige, a bank employee, "snooped" in Ms. Jones' banking records. Prior to this case reaching the Court of Appeal, it had been unclear whether the Ontario courts would recognize a tort claim for breach of privacy of this nature.

Jones v. Tsige may lead to courts in other provinces recognizing the common law tort of "intrusion upon seclusion". A further interesting question arising from this decision is whether the Small Claims Court in British Columbia would have jurisdiction to hear a claim for "intrusion upon seclusion", notwithstanding that a statutory tort claim for breach of privacy under the BC Privacy Act must be brought in the Supreme Court of British Columbia.

Amendments to PIPEDA - Breach Notification Provisions

Parliament has now resumed sitting and it will be interesting to see what happens to federal Bill C-12 which proposes to amend the federal Personal Information Protection and Electronic Documents Act. The most significant part of Bill C-12 is the breach notification provisions which require organizations to notify the federal Privacy Commissioner of any "material breach" of security safeguards involving personal information under its control. Somewhat similar wording in Alberta's Personal Information Protection Act has resulted in numerous reports by organizations to the Alberta Commissioner and numerous decisions of the Alberta Commissioner requiring organizations to notify affected individuals.

BC Order F12-01 - Emergency and Health Services Commission of British Columbia

The B.C. Office of the Information and Privacy Commissioner recently upheld the decision of the Emergency and Health Services Commission to withhold from CUPE certain records which had been sought under BC FOIPPA pertaining to a labour dispute between paramedics and the Commission. The labour dispute had resulted in back-to-work legislation being passed and the OIPC upheld the Commission's decision to withhold some records (while ordering access to other records), noting, among other things, that a public body is authorized to refuse access to information in circumstances where access to the records would allow an individual to draw accurate inferences about advice or recommendations developed by or for the public body.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.