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I read this morning about what George W. Bush said about lawsuits and the need to cut back on awards being ordered in personal injury cases:

“The costs of frivolous lawsuits in some cases make it prohibitively expensive for a small business to stay in business or for a doctor to practice medicine, in which case it means the health care costs of a job provider or job creator is escalating,” Bush said. Bush spoke at a two-day White House economic conference, reiterating his oft-stated plea for Congress to impose caps on legal awards. “Justice ought to be fair,” the president said. “Those who have been hurt ought to have their day in court. But a judicial system run amok is one that makes it really hard for small businesses to stay in business.”

What a nut, I thought as I always do as a knee-jerk, me being a mere pawn caught between the propagandist intercessions of broadcast news and talk radio. But then I realized on this point he is just being a good Canadian. The majority of the Supreme Court of Canada in the case Ratych v. Bloomer, [1990] 1 S.C.R. 940 found the following:

It is a fundamental principle of tort law that an injured person should be compensated for the full amount of his loss, but no more. This is implicit in the principles governing the recovery of damages for personal injury set forth by this Court in the trilogy of Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Thornton v. Prince George School Board, [1978] 2 S.C.R. 267, and Arnold v. Teno, [1978] 2 S.C.R. 287. In the trilogy this Court affirmed that the purpose of awarding damages in tort is to put the injured person in the same position as he or she would have been in had the tort not been committed, in so far as money can do so. The plaintiff is to be given damages for the full measure of his loss as best that can be calculated. But he is not entitled to turn an injury into a windfall. In each case the task of the Court is to determine as nearly as possible the plaintiff’s actual loss. With respect to non-pecuniary damages, the task is necessarily imprecise, and resort must often be had to conventional figures. But where pecuniary damages are at issue, it is the actual pecuniary loss sustained by the plaintiff which governs the amount of the award. The functional rational for the award of damages adopted in the trilogy of Andrews, Thornton and Teno underlines the necessity of using the plaintiff’s actual loss as the basis of his or her damages. The award is justified, not because it is appropriate to punish the defendant or enrich the plaintiff, but because it will serve the purpose or function of restoring the plaintiff as nearly as possible to his pre-accident state or alternatively, where this cannot be done, providing substitutes for what he has lost.

All the US wants is something we have which is not water or mile after mile of untouched woods. Prudence and common sense.

For those of us trying to keep up with the meaning of the newish Personal Information and Protection and Electronic Documents Act, the ruling of the Federal Court of Appeal in Englander v. Telus is interesting for its ennunciation alone. One interesting point to note is a statement in relation to the somewhat daft but perhaps brilliant use of lay language in the key schedule to the statute:

[45] The Court is sometimes left with little, if any guidance at all. Clause 4.3, for example, requires knowledge and consent “except where appropriate.” Clause 4.3.4 sets up a standard of “sensitivity of the information,” only to add that “any information can be sensitive, depending on the context.” Clause 4.3.5 then goes on to say that “[i]n obtaining consent, the reasonable expectations of the individual are also relevant.”

[46] All of this to say that, even though Part 1 and Schedule 1 of the Act purport to protect the right of privacy, they also purport to facilitate the collection, use and disclosure of personal information by the private sector. In interpreting this legislation, the Court must strike a balance between two competing interests. Furthermore, because of its non-legal drafting, Schedule 1 does not lend itself to typical rigorous construction, In these circumstances, flexibility, common sense and pragmatism will best guide the Court.

This is the first higher court ruling which I have seen on the statute and marks the beginning of the interpretation of its principles which will flesh out the meaning of privacy in the private sector in common law Canada. Quebec, as we all know, operates under the civil code system, has had its own statute for a decade and protects privacy in the Quebec Charter of Rights and Freedoms. A more private place.