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Sidewalk Labs wants the Toronto land known as Villiers West, seen here in October, 2019, to be part of the Quayside smart-city project.

Fred Lum/the Globe and Mail

Waterfront Toronto is trying to block a legal attempt by the Canadian Civil Liberties Association to shut down its proposed smart-city development with Sidewalk Labs on privacy grounds, arguing that its case is “speculative” and “premature.”

The CCLA launched an action last April against the development agency and the three levels of government it represents, arguing that the project, called Quayside, could empower Google affiliate Sidewalk to undertake “historically unprecedented, non-consensual, inappropriate mass-capture surveillance and commoditization of personal data.”

The project, the CCLA says, has violated or will violate privacy rights outlined in the Canadian Charter of Rights and Freedoms. It asked the Divisional Court of the Ontario Superior Court of Justice to restart the project with new conditions and agreements, arguing that the agency did not have legal jurisdiction to spearhead a project with sweeping privacy consequences.

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Waterfront Toronto has now filed a response, arguing that many pieces of the CCLA’s case, including its Charter challenge, are premature. The agency’s lawyers wrote that its project, which would allow Sidewalk to co-develop a 12-acre community filled with sensors and new technologies on a valuable swath of Toronto’s lake shore, is still under negotiation and would be subject to approvals by the federal, Ontario and Toronto city governments and would be subject to their regulations.

“Any harms that may arise from this Project, including any potential Charter breaches, are speculative at this time,” wrote Waterfront Toronto lawyers Guy Pratte, Ewa Krajewska and Veronica Sjolin of Borden Ladner Gervais LLP. “… Theoretical privacy breaches are not privacy breaches.”

The legal team has asked the court to withdraw the CCLA’s Charter and privacy-law challenge at a hearing scheduled for March 25.

If the court agrees, the CCLA would still be able to proceed with the portion of its legal action that argues Waterfront Toronto does not have authority to proceed with the project. But CCLA’s executive director Michael Bryant said in an interview that, if that were to happen, it would ”rip the guts out of the lawsuit. There’ll be nothing to litigate if they succeed.”

Since Waterfront Toronto and Sidewalk Labs first announced their partnership in October, 2017, critics have pointed to the potential privacy implications for people who would live, work or move through the proposed community.

Sidewalk is a subsidiary of Google parent Alphabet Inc.; there are few precedents globally for allowing a major Silicon Valley company to design a community filled with new technologies and sensors to learn about city living. Canadian privacy law has not yet been adapted to deal with mass data collection in cities. (Sidewalk declined to comment).

In an e-mail, Waterfront Toronto spokesman Andrew Tumilty added that the agency does have “full authority” to pursue the project and that, given the extensive reviews and negotiations with governments left before the project would break ground, “we also believe that it is premature at this point in time for the courts to consider any detailed consideration of the project.”

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The Waterfront Toronto board will vote May 20 to either proceed with or abandon the project, but critics ranging from privacy advocates to BlackBerry pioneer Jim Balsillie have long called for the project to be shut down or reset until Canadian and Ontario privacy laws catch up with its potential implications.

The CCLA argues that Quayside would interfere with Canadians’ Charter rights for security, including security against unreasonable search – a potential consequence in a community where sensors could detect how people move. It also alleges the project will violate federal and provincial privacy laws, including the Personal Information Protection and Electronic Documents Act (PIPEDA).

Waterfront Toronto and Sidewalk have promised to enact stricter standards than required by current privacy law, including PIPEDA, and to follow all current and future government regulations. In Waterfront Toronto’s response to the CCLA’s action, it argues that not all innovations for the project are yet known – even those under consideration by Sidewalk, such as adaptive traffic systems and robot-driven garbage sorting, are not guaranteed.

The response also outlines a number of previously known steps that will be taken before the project could proceed, including public and government consultations, technical evaluations, and a preliminary assessment of the project’s impact on human rights, including privacy. In January, The Globe and Mail reported that Waterfront Toronto had tapped Montreal’s Element AI Inc., one of Canada’s most prominent artificial intelligence firms, to help lead that assessment.

But Mr. Bryant says that the “most authoritative” human-rights assessment Waterfront Toronto could do would be to make its case before the court – and he’s frustrated that the agency tapped an AI company to review the project.

“You don’t ask Burger King to do a nutritional assessment of hamburgers," he said. "You don’t ask an AI firm, in the business of selling AI products, to assess the rights implication of Quayside.”

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Waterfront Toronto’s response to CCLA asks that if a judge cannot separate CCLA’s privacy arguments from its jurisdictional arguments that its case be thrown out.

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