Technology lawyers often think of themselves as area experts, with a deep appreciation and understanding of the specific intricacies of their craft and its sub-specialties, which may include outsourcing, e/m commerce, licensing, CASL-compliance, cloud computing, etc. However, good technology lawyers can sometimes add value to their clients simply by thinking outside the technology box by raising practical issues that go beyond our immediate practice areas. The following discussion points may be worthy of a few minutes of time with your clients.
1) Accessibility for Ontarians with Disabilities Act
compliance: Are your clients fully aware of their AODA
responsibilities, including technology-related ones? As many of you
probably already know, in 2005 the Ontario government enacted the
Accessibility for Ontarians with Disabilities Act, which set out a
clear goal and timeframe to make Ontario accessible by 2025.
Various requirements under this Act are now being phased in and
Ontario currently has accessibility standards in five areas: 1)
customer service; 2) employment; 3) information and communication;
4) transportation; and 5) design of public spaces. These
requirements apply over myriad industries and cannot be ignored.
For example, private sector or non-profit organizations with more
than 20 employees or more were obligated to file their
accessibility compliance reports by Dec. 31, 2014. The
Accessibility Standard for Information and Communications, designed
for Ontario businesses and organizations to make their information
accessible for people with disabilities, requires organizations
with 50 or more employees to make their web sites and web content
accessible according to the World Wide Web Consortium's Web
Content Accessibility Guidelines 2.0. Any organization that meets
this threshold and that undertakes web site development must now
keep these requirements in mind and add them to their RFP
documentation or other contract documents to ensure that their
vendors meet these requirements as failure to meet AODA
requirements can ultimately result in costly penalties.
For example, it is an offence to fail to comply with an order made
under the AODA, block or fail to co-operate with an inspection,
intimidate, coerce, penalize, or discriminate against someone for
seeking enforcement of the AODA, co-operating with an inspection or
providing information as part of an inspection. Fines for persons
or organizations convicted of an offence under the AODA include up
to $50,000 for each and every day or part day that an offence
happens for a corporation, up to $100,000 for each and every day or
part day that an offence happens. All directors and/or officers of
an Ontario corporation must take all reasonable care to prevent the
corporation from committing an offence and the failure to do so is
an offence. The directors and/or officers of a corporation are
liable to a fine of up to $50,000 for each and every day or part
day that the offence happens. Given these potential
penalties, technology lawyers should ascertain that their clients
(particularly smaller ones with less robust human resource
departments) are at least minimally aware of their AODA compliance
requirements so that they can take any required steps to
pro-actively ameliorate non-compliance before the proverbial knock
on the door.
2) The duty of good faith: It is worth reminding Canadian
clients that under a recent case of the Supreme Court of Canada,
Bhasin v. Hrynew, the courts recognized the existence of a
duty of honest contractual performance. In other words, parties to
a contract must act honestly in the performance of their
contractual obligations, not lie or otherwise knowingly mislead
each other about matters directly linked to the performance of the
contract. This might sound simple, but could be a timely reminder
for clients that are looking to cut corners or "break a few
eggs" in their haste to achieve the best financial or other
results for themselves. Interestingly, the Supreme Court
determined that the duty of honest contractual performance to be a
general doctrine of contract law that imposes a contractual duty,
regardless of the parties' intentions. Significantly, the court
also found that any alteration to this duty of "honest
performance" has to be made by express terms in the contract;
for example, generically-drafted "entire agreement
clauses" do not apparently satisfy this requirement. (For a
more detailed analysis of this case, please read the
article written by my colleague, Marco P. Falco.
3) Insurance: Does your client have appropriate and sufficient
coverage in place, given the nature of their business? Emerging
companies sometimes overlook the value of obtaining Errors &
Omissions in appropriate jurisdictions and of course, Directors
& Officers insurance is critical at all stages of the corporate
life-cycle. As well, many companies are not aware of gaps in
"traditional" insurance products that more specialty
liability insurance products (i.e. media and Internet liability,
cyber liability) are intended to catch, including breach of
fiduciary duty to protect privacy of client information, content
exposure (defamation, intellectual property), damages caused by
virus, third party financial losses due to system downtime, costs
associated with data breach notification following a cyber
attack/hack, etc. The obtainment of cyber-liability insurance may
also prove useful for certain clients if they have been compelled
to give robust indemnities in these areas to third parties in their
customer agreements.
4) Winter cleanups: After the frenzy of year-end deals has passed,
the new year is a great time to speak to clients about remedying
any gaps in their standard customer documentation (including
incorporating any key "lessons learned" during the course
of negotiating these contracts during the past year), updating
privacy policies to account for changes in practices or new or
changed uses of personal information, and otherwise taking stock to
determine whether there any corporate, employment, or regulatory
issues that should be addressed.
For example, how is that CASL compliance policy coming along? When
was the last time you looked at your standard employment policies
to ensure that they properly address the fact that all of your
employees are using their own iPhones at work and are using them to
interact with the company's e-mail systems? Does the company
have a technical way to erase their confidential information from
their employees' own devices? Do your standard employment and
consultant agreements contain sufficient IT ownership provisions
and detailed descriptions of what should happen following
termination to ensure an orderly exit, taking into account
increasing concerns about the protection of a company's
intellectual property and confidential information? Taking it back
a step, has everyone that is presently working (or has worked) for
your company actually signed such employment/consulting agreements?
And yes, I have to throw in a few technology ones: Did your
organization recently use third party service providers to help you
manage your IT systems and third party software and did you bother
checking to see if that practice breaches any of your key software
licences? Is everyone in the office using authorized enterprise
software or did someone accidently download the student version of
a product and is still using it? Now is the time to clean up those
legal skeletons in the closet before they come back to haunt
you.
While I don't plan to try to replace my firm's employment
or insurance lawyers, I do not believe technology lawyers can take
refuge in narrow silos in today's fast paced legal
environments. The more meaningful way to practice is to ensure that
we add value to our clients through judicious "issue
spotting" even if it means thinking a bit outside our
established practice areas and "practising outside the
technology box."
Originally published by Canadian Lawyer Online - IT Girl Column
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.