“The Board, however, does not regulate in a vacuum. We need to be aware of technological and societal changes and respond accordingly. We need to acknowledge innovation and the opportunities it creates….We do not have a mandate to maintain the status quo.” - Passenger Transportation Board in application no. 210-13

The last 10 to 15 years have seen dramatic moves ahead in terms of how the world works and how we expect things to be done. The “sharing economy”, epitomized by Uber and AirBnB, is just one example that has gained traction in recent years. The law continues to adapt, or struggle, in response to things like online defamation, digital communications, cyber bullying, and cyber surveillance. “Sexting” among teenagers is another area that has captured much attention, as it can lead to child pornography charges in circumstances I doubt the drafters of the Criminal Code envisioned.

The need for the law to adapt to changing times is not something borne of the information age. In 1929, women were ineligible to be appointed to the Senate, as they were not considered to be “persons” under our constitutional law. As the Privy Council held, that was an out-dated notion that attached importance to skills needed in different times, stating: “[t]he exclusion of women from all public offices is a relic of days more barbarous than ours.”

Importantly, the Privy Council referred to the constitution as a “living tree” capable of growth and expansion within its natural limits.

In other words, there was no need to overhaul the constitution, it just needed to be interpreted in line with changing times.

If we fast-forward to the 21st century, Canada lives in a regulatory state where dozens of boards, commissions, and tribunals have an increasingly important role in controlling business licensing, individual rights, and the price of goods and services we pay for.

Regulators need to change with the times. In one notable disciplinary decision, the Law Society of B.C. engaged in a rather long analysis of the societal attitude toward the word “fuck”, noting that it is far more pervasive and generally considered much less offensive than in times past.

So, while many, such as Uber, seek dramatic modifications to existing regulations, the solution might be better found in allowing regulators to modify their approach to how laws are applied. I will leave for another day Uber’s wholesale incompatibility with the regulatory environment in B.C.

However, laws are sometimes enacted for clarity sake, such as the Electronic Transactions Act, which effectively makes PDFs and digital signatures as good as paper and ink for most purposes.

In any event, many of the changes we deal with are really incremental changes or just different ways of doing the same thing. Whereas the Criminal Code and police refer to “a telecommunication that produces a writing” to mean a fax (outdated technology which ought to be banned), that suggests that a typewriter is a “mechanical lever system that strikes paper producing a writing”, as opposed to just calling it what it is: different ways of doing the same thing. One U.S. court, although I confess I cannot find the decision, likened online forums to a more efficient way of doing what people had done at least since Martin Luther: posting their opinions on poles, doors, and message boards in public. The court did not reinvent the wheel, nor did it need to, in order to accommodate changing times.

These are exciting times in law. For many “disruptive” businesses, I expect the solution will lie in persuading regulators to be open-minded and to understand that they are not being asked to do anything more than respond to changing times, the way the Privy Council did in 1929. This will get businesses further than bullish lobbying efforts to persuade legislators to overhaul the law because they want to make a buck.

NB: I was counsel in the Passenger Transportation Board decision quoted above.