Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 6 49 we need to establish this body of case law to give some specific guidance and stan- dards," Schultz says. Shore says the situation reminds her of the work she did in environmental and aboriginal law in the mid-1990s near the start of her career. "Every time a new case came out, it changed the legal landscape," she says. "It's like any developing area of the law. Until you get some decisions, it's wide open." In the meantime, Shore says lawyers can learn a lot from cases south of the border, where cyber-insurance has a much longer history and the jurisprudence has developed further. "We pay very close attention to what is going on in the U.S. The regime in many places is quite statute driven, so the case law will not always be analogous, but when they are taking old established legal principles and applying them to new facts, that can be very helpful," she says. Belinda Bain, a partner at Gowling WLG in Toronto, says at the very least U.S. cases provide clues as to which issues might get litigated in this country. "It can also set the framework for the analysis that a Canadian court has to make, even if the law is not identical," says Bain, the co-head of the international firm's Toronto insurance group. For example, she says a number of U.S. courts have pronounced on the applicability of traditional commercial general liability policies to cyber-related losses. Back in 2014, Sony claimed for coverage after a massive hack exposed the personal details of PlayStation users. However, a New York state judge sided with the company's insurer, Zurich, which argued it had no duty to defend because the data release by the hackers did not amount to "publication" under the general liability policy. The matter is still the subject of some controversy, since a more recent decision by the U.S. Fourth Circuit appeal court recently ordered an insurer to defend a health-care client whose patient records ended up in an unen- crypted form online on the basis that the leak could potentially amount to a "publication" under a similar provision of the company's general liability policy. Either way, Bain says there's a good chance insureds in this country will make similar claims in the event of a big cyber- loss. Bourk says another recent U.S. case involving Asian food chain P.F. Chang's holds important lessons for Canadian players in the cyber-insurance market. The company's insurer reimbursed $1.7 million paid out to customers whose credit card details were posted online by hackers in 2013. However, a court decided the insurer was justified in refusing to reimburse a further $2 million P.F. Chang's spent on payment card industry fees due to the breach because they were not cov- ered by the policy. "That protection is available, but they did not purchase it. It's important to know exactly what you are buying from your broker," Bourk says. "I would say that Canada is about 10 to 15 years behind the U.S. right now when it comes to cyber-insurance. We're at the early stages, but we're catching up quickly," he adds. Aboriginal law expert Thomas Isaac delivers an updated look at this rapidly developing area of law. You'll find plain-language analysis of the latest cases and the critical issues such as the Crown's duty to consult Aboriginal peoples; Métis rights; modern treaties and land claims agreements; and federal, provincial, and territorial authorities. Focusing on the constitutional elements, Aboriginal Law, Fifth Edition offers an insightful look at how this law fits within broader Canadian legal principles. New in this edition Includes new sections on: • Reconciliation • Anti-corruption Initiatives • Engaging the Honour of the Crown • Duty to Consult – Causal Connection and Potential Adverse Effects • Duty to Consult – Remedies – Declaratory Relief Examines recent notable case law such as: • Daniels v. Canada (Indian Affairs and Northern Development) (2016 S.C.C.) • Tsilhqot'in Nation v. British Columbia (2014 S.C.C.) • Moulton Contracting Ltd. v. British Columbia (2013 S.C.C.) • Ahousaht First Nation v. Canada (Minister of Fisheries and Oceans) (2015 F.C.) • Haida Nation v. Canada (Minister of Fisheries and Oceans) (2015 F.C.) • Saik'uz First Nation v. Rio Tinto Alcan Inc. (2015 B.C.C.A.) • First Nation of Nacho Nyak Dun v. Yukon (2015 Y.K.C.A.) The authoritative voice on Aboriginal law Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 987252-65203 $120 Hardcover approx. 460 pages July 2016 978-0-7798-7252-7 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. © 2016 Thomson Reuters Canada Limited 00237ZV-A70172-RM New Edition Aboriginal Law, Fifth Edition Thomas Isaac

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