Date: Fri, 13 Oct 2006 17:37:17 -0400

From: Jennifer Chandler

Subject: Liability for data security breaches

On the federal division of powers point ...

With some trepidation, I heaved open my old constitutional law treatise, and discovered that when dealing with duplicative valid federal and provincial enactments, Canadian courts have rejected the so-called "covering the field" or "negative implication" test of inconsistency that applies in Australia and the U.S. In other words, a federal statute will not be treated as covering the field and precluding provincial laws in the field (where such laws merely supplement or duplicate the federal law, but are not contradictory). Apparently, only express contradiction will lead to the application of the paramountcy doctrine, which favours the federal law. (Hogg, Constitutional Law of Canada, 3rd ed. 1992, p.424).

I think this supports the argument that the courts should not be prevented from developing a parallel common law remedy because of a federal statutory regime governing the same matter, even if it contains its own enforcement system and provisions for remedies.

Russell Brown wrote:

The kind of argument Tsachi is advancing is implicit in the collection of papers in Friedmann/Barak-Erez, "Human Rights in Private Law". (Incidentally, Jennifer might be interested in Peter Benson's article in that collection, however, as it considers Bhaduria at length.) I remain deeply sceptical since this sounds more like failure to confer a benefit than a creation of risk of injury to a protected legal interest. With respect to Tsachi's earlier comment, I'll grant that public law/constitutional norms might influence the content of private law rights, but is that really different than common law evolutionary adaptation? Slavery was once commonly viewed as a matter of a slaveholder's property rights, but (long before we had human rights statutes) it was eventually viewed as an injury to the slave.

Jennifer's division of powers argument is intriguing (at least to me, since I'm from the other province - besides Quebec - that lives to restrict federal intrusions into provincial spheres of responsibility). Unfortunately (and I'm probably not alone in this among our colleagues) I'm not current enough on Canadian constitutional law to comment, but I would have thought that this argument has legs, since a right of action, as a "civil" right, falls within Section 92(13). I suppose, however, that the federal government could try invoking the "national concern" branch of POGG.

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