Remedies for Breach of Privacy in Canada

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REMEDIES FOR BREACH OF PRIVACY IN CANADA

ABSTRACT

In Jones v. Tsige 2012 ONCA 32, the Ontario Court of Appeal quietly ushered the tort of intrusion upon seclusion onto Canadian shores.  In adopting this tort action, the court drew support from a number of jurisdictions, and in particular, Manitoba, where a statutory tort action is enshrined in The Privacy Act.  The respective privacy acts across four provinces have also fuelled development of one other privacy tort, the public disclosure of private facts. 

 

When turning to the assessment of damages for intrusion upon seclusion, the Ontario Court called for ‘modest but sufficient’ awards and also adopted the criteria outlined in Manitoba’s Privacy Act.  In other provincial courts, greater reliance has been placed on punitive damages, although, the number of cases which engage both these torts are few in number.  However, recently a number of publicised infringements of privacy of bank and health records has led to the launch of class actions proceedings.  As with other areas of the law, these proceedings could change the privacy landscape appreciably.

Introduction

In 2012 the Ontario Court of Appeal quietly ushered into Ontario’s common law a free-standing tort, intrusion upon seclusion.  The tort can trace its parentage to the four torts delineated by Prosser in 1960.  Prosser argued that within the law of privacy, there were to be recognized four distinct torts;

  1. Intrusion upon the plaintiff’s seclusion or solitude into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.[1]

Prosser also discussed both commonalities and divergence within the four torts. With respect to remedies for infringement he noted that the first tort, intrusion, is clearly linked to the wrong of intentional infliction of mental distress and damages for non-pecuniary losses.  The second and third torts engage reputation and are closely aligned to defamation, absent the defence of justification, because the defendant is liable for the publication of entirely truthful statements, and where the damages are at large. The fourth tort is similar to infringement of trademark and engages remedies of account of profits and damages.[2]

In part A of this paper, I first catalogue Canadian developments of Prosser’s first two torts, intrusion upon seclusion based upon the decision in Jones v. Tsige[3], and then the tort of public disclosure of private facts.[4] In Part B, I raise the issue of class actions in both privacy torts.  Part C discusses some of the issues concerning remedial developments by Canadian courts associated with the development of these two privacy torts.

PART A

What was decided in Jones v. Tsige?

The Ontario Court of Appeal decision in Jones v. Tsige dealt only with intrusion upon seclusion.  The defendant, Tsige, became involved in a relationship with the claimant, Jones’s former husband.  Both parties were employees of the Bank of Montreal but worked in different branches.  Tsige used her workplace computer to access Jones’s bank account on 174 occasions, ostensibly, to see whether Jones’s former husband was still making maintenance payments to Jones. Tsige maintained that she had a financial dispute with Jones’s former husband.  After extensive discussion of developments in the protection of privacy and the particular tort of intrusion upon seclusion, Sharpe J., giving a unanimous decision, and paraphrasing the Restatement (Second) of Torts (2010), described the key features of the new tort as:

  1. That the defendant’s conduct must be intentional, including recklessness.
  2. That the defendant must have invaded without lawful justification the plaintiff private affairs or concerns.
  3. That a reasonable person would have regarded the invasion as highly offensive causing distress, humiliation or anguish, although proof to a recognized economic interest is not an element of the cause of action.[5]

Sharpe J. also qualified the reach of this new tort to prevent a ‘floodgate’ of claims by stating that; “only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, view objectively on a reasonable person standard, can be described as highly offensive”[6] were covered.

Sharpe J. was clear to confine the court’s actual ruling to the tort of intrusion upon seclusion, but throughout the discussion there is extensive reference to the development of privacy, and to specific developments in other jurisdictions of the second tort, the public disclosure of private facts.[7]  I believe this to be a clear signal from the court that such an action should also be brought to Ontario’s shores.

Sharpe J. supported the common law development with reference to four other provinces that have enacted a statutory tort of privacy, but which have largely then left development of it to the respective courts, the statutes providing little in the way of prescriptive guidance.[8] In addition, he drew support from the plethora of privacy legislation of federal and provincial acts that have been gear towards the protection of personal data held by corporations or other public bodies. For example, in Ontario, in addition to the federal Personal Information Protection and Electronic Documents Act SC 2000 c 5,[9] there are the Personal Health Information Protection Act 2004 SO 2004, c.3 (essentially covering health providers), Freedom of Information and Protection of Privacy Act RSO 1990, c F.31 (essentially covering information held by government ministries, boards and agencies), Municipal Freedom of Information and Protection of Privacy Act RSO 1990, c M.56 (essentially covering municipal governments, boards and agencies), and the Consumer Reporting Act RSO 1990, c C.33 (covering private consumer credit reporting agencies). Similar provisions prevail in the other provinces.

Turning to the issue of remedy for breach of intrusion upon seclusion, Sharpe J. took a novel, although predictable approach, to assessment of damages.  He made a number of categorical statements:

[1] that proof of actual loss is not an element of the cause of action for intrusion upon seclusion.

[2] Where the damages fall into the head of non-pecuniary loss, the award of damages is symbolic or constitutes ‘moral damages’, awarded to vindicate rights or symbolize recognition of infringement.[10]

[3] Awards of aggravated and exemplary damages were to be neither encouraged or excluded but are justified only in exceptional cases.[11]

With these three points in mind, Sharpe J. endorsed an approach that quantified damages according to a ‘conventional range’, designed to ensure “consistency, predictability, and fairness between one plaintiff and another.”[12]  This approach was drawn from Waddams.[13] Sharpe J. spent considerable time reviewing case law of analogous torts where a nascent form of intrusion upon seclusion had been part of the action, namely cases drawn from trespass and nuisance.  Sharpe J. then analyzed decisions under the respective Privacy Acts of the four Provinces that have such legislation, and, in particular, the Manitoba legislation, because it is the only Act that actually articulates damages quantification principles.  The Act states:

4(2) In awarding damages in an action for a violation of privacy of a person, the court shall have regard to all the circumstances of the case including:

(a) the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of that person;

(b) the effect of the violation of privacy on the health, welfare, social, business or financial position of that person or his family;

(c) any relationship, whether domestic or otherwise, between the parties to the action;

(d) any distress, annoyance or embarrassment suffered by that person or his family arising from the violation of privacy; and

(e) the conduct of that person and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant.

Sharpe J. assembled the cases he discussed in two appendices attached to the judgment; Ontario damage awards, and damages awarded under provincial legislation.   From this study, he determined a conventional range was up to $20,000, and that the provisions from the Manitoba Privacy Act should be used by later courts to guide assessment. In the case before the court, an award of $10,000 was justified.  The actions of the defendant were deliberate and repeated, and arose from a complex and acrimonious domestic dispute. The plaintiff was very upset, but had suffered no public embarrassment or actual harm to health or business interests.  The defendant had apologised for her conduct and made genuine attempts to amend.[14]

Resort to a ‘conventional range’ has been adopted by a number of courts, particularly concerning the assessment of non-pecuniary damages.[15]  Arguably, the approach adopted by the Supreme Court of Canada with respect to assessing non-pecuniary damages for personal injury has evolved into such an approach, although the range is considerably higher, somewhere in the vicinity of $350,000.[16] Other commentators have endorsed such an approach as a pragmatic solution for courts particularly where assaults to dignity are the primary injury in the action.[17]  The difficulty with a conventional range, is that it allows the first litigant to the court to have an undue impact on setting the range.  Similarly, without appropriate adjustment mechanisms the range can be left behind general inflationary pressures and changes in social mores.[18]  With the top of the range set at $20,000 in Ontario, a litigant will likely have their action heard in the Small Claims Court.[19]

Post Jones v. Tsige decision in Ontario – Intrusion Upon Seclusion

Perhaps as expected, the adoption of a new tort has generated a significant attention in practice circles, and pleadings of the action, as an accompanying cause with other actions, is frequently found.  In most cases, the reported decisions are of these claims being struck out as having no prospect of success because the facts do not actually identify an intrusion upon seclusion, or that the intrusion does not meet the requisite level of highly offensive.  What is left, are two decisions of the Ontario Superior Court of justice and a number of arbitral decisions.

McIntosh v. Legal Aid Ontario[20]shares remarkably similar facts to Jones v. Tsige.  In this case, the defendant, who worked for Legal Aid Ontario, accessed the plaintiff’s case records.  With this information, the defendant threatened to report the plaintiff to the Children’s Aid Society.  The defendant was the new girlfriend of the plaintiff’s former boyfriend. The breach of privacy was investigated by the Office of Information and Privacy Commissioner of Ontario and by Ontario Legal Aid, who apologised to the plaintiff for the privacy breach. In addition to claiming general damages for breach of privacy the plaintiff argued for a number of pecuniary special damages flowing from her loss of employment that she attributed to the depression, anxiety and injury experienced as a result of the intrusion upon seclusion.  The pecuniary claims were all dismissed on the bases that no causative chain linked the inability to continue employment with the intrusion upon seclusion.  However, on the general damages, the court awarded $7,500 for the distress, annoyance and anxiety caused by the defendant, who had not offered an apology.

The second decision is an appeal from a Small Claims Court, awarding $1500 general damages for intrusion upon seclusion.  In Stevens v. Walsh[21]the plaintiff, and Air Canada pilot, brought an action against the defendant, also an Air Canada Pilot, alleging that she intruded upon his privacy when she disclosed records to the plaintiff’s estranged wife about his flight schedules and movements.  Air Canada operated a password protected website that logged the flight schedules of pilots.  Pilots could give access to the system to friends and family, which the plaintiff had done with respect to the defendant.  The alleged intrusion was not that the defendant accessed the plaintiff’s flight schedules, but that she gave them to the plaintiff’s estranged wife who used the material in subsequent divorce proceedings. The Small Claims Court judge awarded $1500 for the intrusion stressing the moral and symbolic nature of the damages.  The appeal was dismissed.

Three labour arbitration awards, two from outside Ontario (Alberta and British Columbia) and one from within, raise some interesting issues on how the damages can escalate because of the number of employees involved. In Alberta v. Alberta Union of Provincial Employees (Privacy Rights Grievance)[22]The intrusion upon seclusion came about when a provincial employee was brought in to investigate operations surrounding the issue of fraudulent maintenance enforcement program cheques.  The Province ran a program under which it sought to recover from those who were delinquent in paying support and maintenance payments.  In return for assuming the burden of collection, the Province would pay out maintenance and support cheques directly to beneficiaries.  Upon discovering that fraudulent cheques were being issued, the Province brought in a zealous investigator who promptly accessed personal employment data on ministry employees and ran unauthorized credit checks on the employees.  This was ostensibly to discover whether any employee may have harboured a motive for fraudulent behaviour.  None was found. However, upon finding that their privacy had been invaded, the twenty-six employees in the maintenance program promptly filed a grievance.  The arbitrator found that a breach of the tort or intrusion upon seclusion, as voiced in Jones v. Tsige was made out.  On the assessment of damages, the arbitrator awarded each employee $1,250.  Although there was a lack of tangible harm to each employee, the invasion had created a climate of mistrust. The Province had admitted error and apologised, and this went a long way to rectifying the climate in the department. By mentioning these factors, the arbitrator specifically embraced the factors specified in the Manitoba Privacy Act, and endorsed in Jones v. Tsige.

 

In Re Rio Tinto Alcan and Unifor, Local 2301 (Kemano),[23]a grievance was filed by employees who worked in a remote mining camp. The employer, without reasonable cause, had engaged a private company to conduct a sweep of the employee’s camp living quarters in search for illicit drugs.  None were found.  In fact, after the sweep, the employees were brought together so that the sniffer dog could demonstrate how it could identify drugs.  The employer left the impression that it had the right to do what it had just undertaken at any time. The employer had only apologised for the privacy infringement at the commencement of the grievance proceedings.  Following the decision in Alberta v. Alberta Union of Provincial Employees (Privacy Rights Grievance) the arbitrator awarded each employee $1,750 for the infringement.  This award was justified on the basis that while the actual infringement had been of an extremely momentary period of time, and had not engaged any lasting harm, it had affected the employer/employee relationship; it was performed against a background of a previous grievance which had determined the employer had no right to arbitrarily conduct searches without reasonable cause; and that the employer had taken no steps for over two years to apologise or otherwise quell the distress and annoyance of the recent search.

The final arbitration case is St Patrick’s Home of Ottawa Inc. v. Canadian Union of Public Employees, Local 2437.[24] In this case the grievor argued that her privacy had been intruded upon when her employer released confidential information about her to another employer, for whom she also worked.  The information released concerned the extent to which the employer had made any accommodation for the employee based upon any disclosed medical condition.  The employer released to the other employer a medical certificate provided by the grievor’s physician to the effect that she was able to perform her duties without accommodations.  When the other employer received this information, it dismissed the grievor.  The grievor had requested, and received accommodations from the work schedule of the other employer for work which was identical in nature.  The grievor argued that the employer had breached a specific confidentiality provision in her collective agreement, the Ontario Health and Safety Act, and the tort of intrusion upon seclusion.  The arbitrator decided to award damages under the tort principles and awarded the grievor $1000.  Again, resort was made to the factors specified in the Manitoba legislation.[25]

Post Jones v. Tsige decisions beyond Ontario – Intrusion Upon Seclusion

Apart from British Columbia, which has specifically rejected Jones v. Tsige, there is only one province’s courts that has specifically referenced the decision with approval.[26] Despite the fact that four provinces have privacy legislation, the legislation appears to anticipate the development of the privacy right to accord to common law methodology.  Courts in Newfoundland and Labrador suggest that the common law and statutory provision create concurrent rights.[27]

British Columbia merits specific treatment because it has advanced the right to privacy exclusively through its legislative provision.  This has resulted in a different approach to damages for infringement, the level of compensation awarded, and the specific rejection of the common law development outlined in Jones v. Tsige.[28] One immediate difference is that claims under the Act are required to be brought in the BC Supreme Court (Privacy Act s.4).  Combined with the interplay of the Small Claims Court monetary jurisdiction set at $25,000, the claimant must be successful in receiving a damages claim in excess of that amount to win its costs.

A common feature of the British Columbia cases is that they involve invasions of privacy wherein the defendant is engaged in ‘peeping tom’ activities often involving the video taping of the claimants while in their bedrooms or bathrooms.  An egregious infringement occurred in Malcolm v. Fleming.[29]The plaintiff was a nursing student at the time, and rented a room in the defendant’s home where he lived with his family.  The plaintiff discovered hidden cameras throughout the home, including the bathroom, and further discovered that the defendant had recorded her and her friends at various times while she had lived with the defendant.  In awarding the plaintiff $15,000 compensatory damages and a further $35,000 punitive damages, Downs J. drew support from an earlier ‘peeping tom’ case in British Columbia, Lee v. Jacobson.[30] The factors identified in both cases, justified both general and punitive damages.

[1] The privacy violated was to the room in the home where the most intimate acts can be expected.

[2] The plaintiff had paid for accommodation and reasonably expected privacy.

[3] The defendant had made elaborate arrangements that required premeditation to execute.

[4] The defendant had lied about his participation which demonstrated lack of remorse.  The plaintiff had been put through the embarrassment of discoveries involving other witnessing the tapes.

[5] There was the potential that the tapes had been viewed by others and thus crossing the line into the public disclosure of private facts.

In conclusion, Downs J. saw some parallel with cases on sexual assault and the level of trauma experienced by the plaintiff.

Similar levels of damages have been awarded in two other ‘peeping tom’ cases; M. (L.A.) v. I (J.E.)[31]and T.K.L. v. T.M.P.[32] In the former, the plaintiff adduced evidence that she had taken anti-depressants following discovery of the events, although she had discontinued taking them by trial, and the trial judge found that she was more motivated to see the defendant punished. However, the court still awarded $20,000 general damages, a further $5,000 for loss of income earning opportunity, and punitive damages of $35,000.  In the latter case, the determinative causes of action were both an infringement of privacy as well as breach of fiduciary duty following the positon taken by the Supreme Court of Canada in K.M v. H.M.[33] More evidence supported the plaintiff’s claim of suffering from depression, anxiety and inability to trust others in a relationship, although the judge also noted that she was well on the way to recovery following treatment and taking psychotherapy.  The court awarded general damages of $85,000.

At the other end of the scale, British Columbia’s courts have also awarded normal, or symbolic damages in a case involving a school house master who searched an off-campus student’s house to determine if on-campus boarding students were present without permission;[34] where a landlord has placed a video camera in a corridor outside the plaintiff’s property to see who was gaining entry to the premises;[35]and where the defendant, an adjoining neighbour, placed surveillance cameras aimed at the plaintiff’s windows.[36]

The British Columbia courts appear more willingness to entertain pecuniary claims for general damages associated with the trauma that may accompany an infringement of privacy, and are more likely to consider a plea for punitive damages.

The Public Disclosure of Private Facts

Having referenced Prosser’s classification in Jones v. Tsige it is not surprising then that a claim for public disclosure of private facts has recently been advanced.

In Jane Doe 464533 v. N.D.[37]the plaintiff brought an action claiming, intentional infliction of mental suffering, breach of confidence, and breach of privacy, namely publication of private facts.  The plaintiff and defendant had been in a relationship since high school. At age 18 the defendant left to take up studies at university in Nova Scotia, but kept in close contact with the plaintiff.  Over the course of several phone calls, the defendant persuaded the plaintiff to make a sexually explicit video of herself and send it to the defendant.  Upon receipt, the defendant promptly posted the video to a pornographic site and shared it with friends.  Upon becoming aware of this activity, the plaintiff took efforts to have the video removed, which was done so after three weeks, but she also experienced severe humiliation and embarrassment causing serious depression and emotional upset.  The plaintiff commenced the action, which was ultimately undefended.  At the time of the action, the plaintiff had finished her own undergraduate university studies and had commenced a graduate degree.

Stinton J. described the facts of this case as raising a legal first in Canada to seek civil liability for the publication of private facts.  He found liability under all three heads, intentional infliction of mental suffering,[38] breach of confidence,[39] and breach of privacy. Drawing support from Jones v. Tsige the court saw in the facts of this case elements of the tort of intrusion upon seclusion, i.e. there are parallels to the ‘peeping tom’ video surveillance type cases, but that it made a better fit into Prosser’s second tort, the public disclosure of private facts. Stinton J. accepted, with one qualification, the criteria from the Restatement (Second) of Torts (2010) at 652D, that the tort is proved where the plaintiff can show “if the matter publicised or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”[40] The underlined additional qualification would allow liability even where publication does not actually occur but that the defendant attempts to post the highly offensive material, or that the material is made available to a secured smaller group. The provision in the Restatement

requires ‘publicity’ in the sense that the matter is certain to become one of public knowledge (§652D – comment).  This is different from ‘publication’ which simply requires communication to a third person (§577 – comment).

Turning to appropriate remedies, the court drew parallels between this case and tort liability for sexual assault.  The type of harm was of an emotional and psychological effect leading to an award of non-pecuniary damages.  The Supreme Court of Canada had approved three factors in Blackwater v. Plint.[41] [1] The circumstances of the assaults, frequency and extent of violence, degradation and invasion. In this case the plaintiff was at a vulnerable age, control of the video had been lost and no one could be assured of how many copies of it existed or who had viewed it. The video was highly personal and of an invasive portrayal. Some of the defendant’s friends were shared in common with the plaintiff. The court likened each viewing as akin to a new assault of the plaintiff. [2] The circumstances of the defendant and whether there was a position of trust.  In this case, although the defendant was the same age as the plaintiff, the relationship had been a long one and was imbued with trust. [3] The consequences for the victim.  In this case the plaintiff had experienced psychological harm and emotional distress.  Applying these criteria, the court saw an award of $50,000 compensatory and $25,000 aggravated damages as being appropriate.  The latter were justified on the grounds that the posting of the video had been a particularly arrogant breach of trust bearing in mind that the defendant had repeatedly assured the plaintiff, despite her misgivings, that the he alone would watch the video and keep it private.   In addition, the court saw this as a case warranting $25,000 punitive damages for the malice and blameworthiness of the defendant’s conduct, which passed the proportionality analysis now used by Canadian courts when considering punitive damages awards.[42] Stinton J. also saw the need for deterrence.  The total amount awarded, $100,000 plus interest and costs, was the maximum claim the plaintiff could bring under the simplified procedures which she had used to prosecute her claim.

In this case the court also granted an injunction directing the defendant to destroy any copies of the video, and from any further publishing or posting of intimate images of the plaintiff.  The plaintiff also sought anonymization of the order using the Jane Doe appellation, as well as initials for the defendant, and a sealing of the file; all of which were granted.

Jane Doe 464533 v. N.D[43]has been followed in one other case, Halley v. McCann.[44]The plaintiff voluntarily entered a crisis mental health facility for treatment.  The defendant, the plaintiff’s half-sister, worked in the same treatment facility. The relationship between the sisters was one of acrimony and bitterness.  The defendant avoided contact with the plaintiff for the six days she was in the facility, and the plaintiff never new of the fact that her half-sister was aware of her admission to the facility.  Regrettably, and in breach of the facility’s confidentiality policy, the defendant told her husband, her brother and her daughter.  After checking-out of the treatment facility and returning to the home of her boyfriend, the plaintiff was confronted by the former spouse of the defendant’s brother, which indicated that she knew the plaintiff had been in the treatment facility.  This revelation exacerbated her fragile condition causing depression, stress and anxiety.  McGill J. first asked whether the disclosure of the fact that the plaintiff was in a crisis facility constituted disclosure of private information.  The Personal Health Information Protection Act notes that visits to a health facility constitutes private information.  The plaintiff had only signed limited access to her boyfriend and housing worker to have access to this information, and the existence of the facility’s confidentiality policy were conclusive evidence that the matter was private.  Was the disclosure highly offensive to a reasonable person? A reasonable person in the shoes of the plaintiff, and who had taken steps to ensure that her treatment remained a secret from her family would find this disclosure highly offensive.  There was no lawful reason for the disclosure that provided a defence and the court found the defendant had acted with malice.  General damages were assessed at $7,500 for the physiological harm [sic psychological?], embarrassment and humiliation.  An additional $1,500 punitive damages were awarded.

As with the tort of intrusion upon seclusion where development in British Columbia departs from the common law as articulated in Jones v. Tsige, the BC Privacy Act s.1 has been interpreted as covering public disclosure of private facts.  Griffin v. Sullivan[45]supports the view that a statutory breach of privacy can be argued together with a defamation suit and, if the elements of the privacy tort are present, can support a distinct award of damages in addition to any award that may arise from the defamation.  In this case, the plaintiff alleged defamation against the defendant for a number of postings on the internet where the defendant had described the plaintiff as a ‘stalker, abuser, harasser, criminal, liar, killer, sexual predator, pervert, pedophile, coward, manipulator, and hate monger’.  Separate from these allegations were further allegations that the defendant had acquired from the plaintiff’s former girlfriend personal information, including photographs, and had posted them to an anonymous online suicide support group that the plaintiff frequented under a pseudonym, thus revealing his identity.  The chat group posted very revealing, intimate, explicit and vulgar messages, and thus highly valued anonymity.  In addition to awarding the plaintiff $150,000 damages for libel, the court awarded $25,000 for breach of privacy without any evidence of particular psychological or other emotional harm suffered by the plaintiff.[46]

PART B

Privacy and Class Actions[47]

Ontario’s class action regime is similar to most other provinces in Canada.  It allows for the certification of class action proceedings where the notice discloses a cause of action, there is an identifiable class of two or more persons that would be represented by a representative plaintiff, the claims of the class members raise common issues, and the class proceedings would be a preferable procedure for the resolution of the common issues.[48] The class action must be a preferable way to handle the litigation when viewed through the lens of access to justice, judicial economy and behavioural modification.[49]

In Evans v. Bank of Nova Scotia[50]the plaintiff representative sought certification of a class action to represent a group of the bank’s customers who had been the victim, or could possibly be the victim, of identity theft as a result of the bank’s wrongdoing.  A bank employee had provided private and confidential information on 643 of the bank’s customers to his girlfriend, who had then given the information to third parties for fraudulent purposes. Of the 643 customers, 138 reported they had been victims of identity theft, and for which the bank had compensated the victims for any pecuniary losses. The representative plaintiff sought certification as a class action alleging, breach of intrusion upon seclusion, negligence, breach of fiduciary duty and duty of good faith, and waiver of tort.  The bank resisted certification on the grounds that the bank could not be held vicariously liable[51] for the actions of its employee for the tort of intrusion upon seclusion, and that if damages were to be awarded for emotional suffering and inconvenience, then the harm did not reach the level of a recognized psychiatric illness or serious prolonged psychological injury as a result of the defendant’s conduct.  In addition, the bank argued that because damages under Jones v. Tsige were characterised as ‘moral or symbolic’ damages, this was synonymous with punitive damages, and thus could not be awarded pursuant to a claim that depended upon vicarious liability.

Smith J. certified the class action on all causes of action. The defendant could not demonstrate that it was not plain or obvious that they could not succeed at trial. On the issue of damages for intrusion upon seclusion, the plaintiff did not have to prove that the level of harm rose above the level of emotional distress, inconvenience and upset,[52] and moral or symbolic damages were not punitive damages.

A similar class action has been certified in the Federal Court concerning the loss of an external hard drive that contained personal information of 583,000 student names from the Ministry of Human Resources and Skills Development, a department who administers Canada’s student loans program.[53]  The Ministry had opposed certification claiming that the privacy tort could not be engaged because the intrusion had not been without justification, nor had it been sufficiently intrusive.  In addition, the level of harm was minor – inconvenience, frustration and anxiety, rather than dire – distress, humiliation or anguish. The plaintiff contented that the information was more than basic names and addresses as it included financial indebtedness, and that a reasonable person could find the intrusion highly offensive, causing distress, humiliation or anguish.

In a different context, that of a breach by an employee of a hospital who wrongfully accessed patient health records, the Newfoundland Supreme Court also certified a class action.[54] The representative plaintiff argued breach of privacy under both the Newfoundland statutory provision as well as the common law. The defendant objected the certification raising both the vicarious liability and threshold level of non-pecuniary damages issues.  Both were similarly rejected by the court on the same basis that it was not plain and obvious that the plaintiff could not establish these claims at trial.[55]

In Ontario, the interplay between the Personal Health Information Protection Act 2004 and the common law tort of intrusion upon seclusion in the context of contemplated class action proceedings was explored by the Court of Appeal in Hopkins v. Kay.[56]The plaintiff was one of 280 patients affected by a breach of privacy when a nurse improperly accessed patient records and disclosed their contents.  The defendant hospital argued that the legislation provided a comprehensive code, including the potential for recovery of provable damages for any harm actually incurred to a maximum of $10,000.[57] Sharpe J. for the court rejected this analysis, pointing out that there were significant differences in the forms of proof between the two actions to recover damages. The representative plaintiff was allowed class action certification.

In Lozanski v. The Home Depot Inc.[58] the court approved a class action settlement arising from data breach experienced by customers who used their credit cards at a Home Depot store during a period when hackers had compromised the defendant’s computer systems.  Because the action was settled, the alleged privacy and breach of contract claims were never litigated, and Home Depot denied any wrongdoing.  The claim settlement reflects a modest award, $250,000 being set aside to meet documented claims of loss from a class of 500,000 customers who could potentially be effected; and $250,000 being set aside to pay for free credit monitoring services for the class.[59]

The class actions just described have all been based on the intrusion upon seclusion privacy tort.  There is one case that raises public disclosure of private facts, and in rather peculiar circumstances.  In Canada v. John Doe[60] the representative plaintiff brought a class certification action against Health Canada, the Federal Government’s health ministry.  Health Canada has as one of its responsibilities the administration of the Marihuana for Medical Purposes Regulations.  Under the regulations individuals could register and be given a license to take marihuana for a variety of prescribed medical treatments. At the time of this action, 40,000 people were registered with the Ministry.  The regulations also posted a privacy policy adhered to by the ministry. In normal correspondence to registered users from the Ministry an envelope with the title Health Canada on the outside was used.  Regrettably, to inform registered users about changes in the program, Health Canada sent 40,000 oversize envelopes visibly marked with a return address to the Marihuana for Medical Purposes Program.  Somewhat ironically, inside the envelope was a letter informing registrants that there was a high value to marihuana on the illegal market, which created a risk of home invasion to registrants.  The representative plaintiff argued, that by revealing to the world at large that he was a registrant in the program, Health Canada had breached his privacy and exposed him to a variety of risks.[61] The plaintiff commenced an action arguing, breach of confidence, breach of contract, negligence, and intrusion upon seclusion and publicity to their private life. The Court of Appeal held that the Trial judge had erred in allowing certification for either alleged breaches of privacy, although it ultimately allowed the certification to proceed on the other grounds.  The plaintiff failed on the privacy torts because it could not identify a factual basis to support the claims.  On the intrusion of seclusion, there was no evidence to support that the intrusion was intentional, nor without justification.  On the publicity to private life, the action failed on the grounds that there was not the requisite publicity to the disclosure.  Being seen by a postal employee, who was also bound to confidentiality, or a family member where the mal was received, did not satisfy the publicity element of the tort.

Part C

Discussion

The cases discussed, excluding class actions, all present a fairly obvious claim for beach of privacy, and I don’t imagine readers find the fact that liability was demonstrated as being extraordinary or inappropriate.  Canadian courts have, up to now, not experienced difficulty in first accepting Prosser’s and the Restatement (Second) Law of Torts formulation of intrusion upon seclusion, and then applying that criteria, either as part of the common law or in exposition of a statutory tort of privacy.  What is interesting is the regional variety in the types of cases.  Why the higher number of ‘peeping tom’ cases in British Columbia?  Can this be explained on the increased levels of damages awarded in the Province, and why the higher levels in the first place?  The cases also exhibit a tendency to eschew protracted debates about what constitutes privacy.  As part of Canada’s Charter jurisprudence, courts have readily accepted the guidance provided by the Supreme Court that a right to privacy can be divided into territorial privacy, protecting physical spaces from prying eyes where there is a reasonable expectation of privacy; personal privacy protecting bodily integrity against being touched, searched, or exposed; and informational privacy, protecting the documentary and image record of how we project ourselves to others.[62]  All forms of privacy engage both intrusion and disclosure and when that is justified.[63]

British Columbia parts company in the level of awards from the other common law provinces.  There is a far greater willingness to entertain suits that argue for higher levels of compensatory damages for a variety on non-pecuniary losses that have been occasioned by victims, although the harms incurred seem to justify those awards because they are more closely analogous to sexual assaults.  This mirrors a similar trend in non-pecuniary awards in personal injury claims generally, where British Columbia’s courts appear to push the envelope on the cap on such awards.  The propensity to award aggravated and punitive damages also distinguishes British Columbia.  While punitive damages may be appropriate where they meet the criteria and proportionality tests outlined in Whiten v. Pilot Insurance,[64] the awarding of aggravated damages

is problematic.  Problematic, because Canadian courts are yet to articulate the underlying rationale for these damages.  The current test for these damages mirrors the test for punitive damages rather than focussing upon the true compensatory aspect of compensating for additional harm as a result of the defendant’s conduct in adding insult to injury.

The creation of a ‘conventional award’, as previously indicated has the problem of allowing the first case to the court to set the range and omits a mechanism for subsequent adjustments.  Adopting a conventional approach is a pragmatic solution to the issue of how to compensate for a non-pecuniary loss.  As yet, Canada has no systematic way of informing judges how the conventional approach is to be used to standardize awards across the provinces other than in depending on the research of counsel to inform the court.  The actual upper level of the award, $20,000, in effect means that this cause of action will not be argued before a superior court as a single cause of action. The resultant payout if successful will not justify the costs incurred in litigation.

The action for public disclosure of private facts, is very much a work in progress in Canada.  Unlike the UK and New Zealand, Canada has not yet experienced the celebrity who seeks to control their image,[65] or their family member’s image.[66]  It is speculation why this has not occurred in Canada although one suspects that for Canadian celebrities, who hide in the shadows of their American counterparts, there may be much truth in Oscar Wilde’s admonition, that ‘only one thing in life is worse than being talked about and that is not being talked about’. Canada does not have aggressive tabloid news-media, and news, both print and television, are highly concentrated in risk adverse business entities. Telecommunication, including cable and digital broadcasting is regulated by the Canadian Radio-television and Telecommunications Commission which monitors privacy practices particularly associated with spam e-mail. Canadians do not seem to have any preoccupation with the sexual orientation or proclivities of its celebrities or politicians.  Recall, that it was Pierre Trudeau, when Justice Minister, who said in 1967 that; “there’s no place for the state in the bedrooms of the nation,”[67]  and Ontario has its first openly gay premier, Kathleen Wynne, elected in 2013.  Canadians also appear to lack an appetite for political satire on television or radio to the same extent as found in other Commonwealth counties. Perhaps the fact that Canadians pay some of the highest cellular data rates in the world also curbs participation in newsfeeds or other programs that require high bandwidths of data transfer which impacts on the propensity to publicise, or become a market for celebrity gossip.

The first reported case of public disclosure of private facts, Jane Doe 464533 v. N.D,[68]demonstrates some of the difficulties with this action in a digital world.  The element of public disclosure was expanded to include the act of ‘publication’, used as in the defamation sense, as well as to ‘publicise’, used in the sense of dissemination to a broader section of the public.  This was the distinguishing feature with the Federal Court of Appeal’s decision in Canada v. John Doe.[69]  The expanded notion of publication in Jane Doe 464533 v. N.D makes a better fit with the digital world, where the offending video can be removed, but that those who have downloaded it before removal, always retain the ability to resurrect it and give it new currency.  This change in the focus of what can constitute publicity also shifts the analogy of the action away from defamation, as contemplated by Prosser, to the intentional infliction of mental distress, similar to the tort of intrusion upon seclusion.  However, as noted in Jane Doe 464533 v. N.D, the damage assessment process far exceeded the conventional range because the plaintiff could adduce stronger evidence of psychological impact, akin to the sexual assault awards.  This seems quite appropriate in the facts of the case but the other recent Ontario decision to embrace public disclosure of private facts, Halley v. McCann[70]underpins the need to have a conventional award approach, particularly if these actions become grist for the class action regime.  In addition, it should be noted that the federal government has shown a willingness to criminalize egregious behaviour overlapping with privacy claims as in the criminalization of cyber-bullying and revenge porn.[71]

Another remedial issue that public disclosure of private facts raises is resort to injunction relief, or orders aimed at third party internet service providers to take down, or otherwise charge the hierarchical order of search responses, of the offending material. Again, in Jane Doe 464533 v. N.D the court exercised no hesitation on granting an injunction requiring the defendant to destroy any further copies of the video and to any further attempt to disseminating the video.  Similarly, where the tort infringed is intrusion upon seclusion, but the injunction is required to prevent publicising the private information, courts have been willing to entertain such suits unless there is a clear public interest element justifying publicising the information. So, for example, interlocutory injunctions have been granted to prevent the publication of confidential hospital records identifying doctors who have contracted HIV/AIDS yet who are still practicing in the hospital,[72] to protect solicitor-client documents from being disclosed on a local television show,[73] and to prevent the publication of details associated with matrimonial proceedings where the applicant was seeking to divorce her husband, a person who had been convicted of murder and sexual assault in a high-profile case.[74]  However, in the last-mentioned case, the Ontario Court of Appeal reversed the trial judge on the grounds that the effect of the court’s order would be to violate the “open court” principle.[75]

In both actions, intrusion upon seclusion and public disclosure of private facts, but more so in the latter, the issue of injunctive relief has challenged courts in other jurisdictions because it raises the competing pressures of the right accorded freedom of expression, the principle of open courts, and the hesitancy to ordering prior restraint, particularly in alleged defamation actions.  I have discussed the use of injunctions in privacy and defamation actions in a recent article titled, “Injunctions contra mundum: The Ultimate Weapon in Containment,”[76] where I concluded:

The granting of an injunction contra mundum should be drawn where the threat of publication is sufficiently serious as to cause a serious risk to physical or psychological harm, or to seriously jeopardize the fairness of a criminal trial or national security.  In all other cases, courts should defer to a damages remedy.  Even where granting such an injunction is justified, we should be under no illusions as to its efficacy.  In a globalized Internet World, there is most likely to be leakage and thus the injunction may only achieve a limited containment or prevent widespread infringement.  Finally, the enforcement of any injunction is, ultimately, dependent upon effective notice being given to potential infringers.

In the first part of my conclusion, I was alluding to a decision of the Supreme Court in Canada, AB v. Bragg Communications Inc.,[77]where the plaintiff, a child, had commenced defamation proceedings against the defendant who had created a fake digital profile of the plaintiff and circulated it amongst her friend on the internet. The plaintiff feared that if her name was revealed she would be further victimized by cyber-bullying attacks, which were the subject matter of the alleged defamation. Although no evidence of emotional harm was specifically adduced by the plaintiff, the court accepted evidence from a variety of reports that demonstrated a link between bullying and cyber-bulling adversely affecting self-esteem and invoking fear and anxiety and an increased risk of suicide, sufficient to justify overriding any claim to the open court principle or freedom of expression.  The result was for the court to anonymize the record, thus concealing the plaintiff’s identity, so as to minimally impair the right of freedom of expression and the open court principle.

In the second part of my conclusion in the article I was alluding to the difficulty in removal of material on the internet particularly where the server, and thus the content, is held in another jurisdiction.  While commercial search engines such as Google[78] and Facebook[79]contain voluntary policies to remove URL and web images, and indicate that they will respond to court orders, the test of whether, and the extent that these orders can be enforceable across jurisdictions will be tested in a case that is heading to the Supreme Court of Canada; Equustek Solutions Inc. v. Google Inc.[80]The case does not raise personal privacy rights,[81] but is an attempt by a commercial plaintiff to bring an injunction application to have Google remove URL’s of a defendant company, who is infringing upon the plaintiff’s trade secrets and confidential information by advertising and selling a competing product online. The defendant operates in a ‘virtual’ world.  Customers are directed to its website through the Google search engine.  While Google was willing to remove, or deindex 345 URL’s from its search engines, it was not willing to go further into subdirectories and subpages.  The defendant, by changing the objectionable content to new pages within its websites were able to get around the deindexing in what the trial judge described as akin to the game whack-a-mole.  In addition, Google only deindexed from its Canadian operations, Google.ca, and not its other operations, particularly, Google.com. The case engages the issue of choice of forum and the ability for injunctions to have extra-territorial effect.  At the moment, the Court of Appeal has dismissed the appeal, uphold the trial judge’s interlocutory injunction requiring Google to deindex its other North American websites, subpages and subdirectories.  This case will be closely watched and will likely address some of the issues on whether the ‘right to be forgotten’ will translate to Canadian shores.

Coupling an invasion of privacy with class actions will expose complex issues for resolution.  An initial argument in favour of such a movement is that it will encourage access to justice by overcoming the impediment of litigation costs where ‘conventional awards’ effectively curb the action from being brought.  By creating a class, the impact of many smaller awards to class members, creates economies of scale that make it attractive to class plaintiff lawyers to incur the burden of litigation.  Interestingly, the actual litigation burden on class counsel is likely to be less burdensome than in other class action proceedings.  If the breach of privacy flows from a government or administrative agency, or other commercially regulated industry player, then the reporting and investigating structure of the respective government privacy commissioners may be used to secure the substantive evidence of infringement with little difficulty, although as pointed out in Hopkins v. Kay,[82] some of the elements of proof differ.  Resort to a ‘conventional range’ for assessment will actually help proof of the damages claim because it minimizes the need for individual proof of loss and allows the class to be differentiated according to the gradations of privacy infringement, something which the assessment process in class actions has been designed to allow.[83]  As mentioned above, access to justice is one of the lens through which certification of class action proceedings is to evaluated.

Another lens through which to evaluate a class action is behavioural modification.  Currently, the privacy actions which have been brought for certification have, with few exceptions, been against government actors, particularly in the health sector.  In Ontario, the Information and Privacy Commissioner of Ontario has commented that approximately 300-350 complaints per year are brought complaining of breaches in the Ontario health sector.  Half of those are self-reported, and while most of the breaches are due to carelessness – loss or theft of portable devices or incorrectly sent e-mails, two to three are of the snooping variety each month.[84] For the reasons given above about investigation, and the fact that the class members can readily be identified, these actions will be regarded as ‘low hanging fruit’ by the class action plaintiff bar. If the actual damages per individual member are small, then this may trigger the cy-pres approach to damage distribution.  One of the accepted grounds justifying a cy-pres distribution is where the cost of administering the funds to the class will outweigh the sums to be received by individual class members.[85]  In these circumstances, the claim of behavioural modification is usually the chief driver used to support the class action suit, all the while the plaintiff’s lawyer receives its ‘fair’ share of the claim for bringing the action.[86] Is it appropriate, or is it even desirable, to burden the health sector with defending, or settling these claims?  Is this in fact an efficient way to encourage the health sector to better protect client privacy, or is it a mad grab at ostensibly deep pockets (the taxpayer) by the class action plaintiffs’ bar?  The sums involved are quite astronomical.  In one class action that is winding its way through the system, the Rouge Valley Hospital System has been hit by a $412 million-dollar claim.  Two employees of the hospital, allegedly unlawfully sold 8,300 patients names and contact details, mainly of mothers who gave birth between 2009 and 2013, to private companies that marketed registered educational savings investment plans to the patients.[87] One wonders how the class members can claim to have been harmed by these activities.  One of the perversities of the class action suit against a government entity is that the burden of the award is borne by the same group, although a larger constituency of it, as the beneficiaries, namely taxpayers.  The actual wrongdoer does not bear the costs of the award.  The only true beneficiaries of this vicious circle are both class action lawyers.

Court will need to determine whether the provisions of the respective health privacy acts should be regarded as the better way to achieve behavioural modification.[88]  While this will not bar the private civil action, it may be a way to circumscribe the damage awards by shifting the line of an award to next to nothing on the ‘conventional range’.  Nor should the class action claim be fueled by an argument to add punitive damages, which are allowable as part of a claim.[89]  Recently, in Ontario, the legislature has lifted the penalty provisions in the Personal Health Information Protection Act.[90]While this does not preclude bring a private suit, any award of punitive damages must take cognizance of any criminal punishment as part of the proportionality analysis and whether extra deterrence is actually justified.  Prosecutions under the Privacy Act also lead to victim surcharges,[91] which may also be resorted to by victims to compensate for the harm caused by disclosure.

Conclusion

In one sense, the decision in Jones v. Tsige was clearly of an ‘idea whose time had come’,[92]a sentiment shared by the New Zealand Court of Appeal.  It’s quiet entry into Canadian law has not prompted a great deal of reported cases, and the adoption of a conventional range to quantify damages is as unremarkable as it is eminently pragmatic. The evolution of a right of privacy to embrace a tort of public disclosure of private facts, has gone in a slightly different direction than other jurisdictions.  The spectre of class actions married to privacy torts, has a disruptive potential.  Hang on for a wild ride.


* Distinguished University Professor and Professor of Law, University of Windsor.  I wish to thank my research student, Mitchell Fournie, for his most helpful research in preparing this paper.  Paper delivered at the International Workshop on the Remedies for Breach of Privacy, Faculty of Law, University of Melbourne, December 2016.

[1]  William Prosser, ‘Privacy’ (1960) 48 Cal. L. Rev. 383 at 389.

[2]  Ibid at 409, 422.

[3]  (2012) 108 OR (3d) 241 (CA).

[4]  Most privacy theorist agree that these two forms of the privacy interest dominate what is termed a right to privacy.  See Chris Hunt, “The Common Law’s Hodgepodge of Privacy” (2015) 66 UNBLJ 161.

[5] Supra note 3 at [71].

[6]  Ibid at [72].

[7]  In particular, Sharpe J. discusses at [64] the New Zealand Court of Appeal’s decision in Hosking v. Runting [2004] NZCA 34 (CA) at [109] which embraced two elements of the tort; one, the existence of facts in respect of which there is a reasonable expectation of privacy, and two, the publicity given to those facts must be considered highly offensive to an objective reasonable person. In addition, further references were made to the UK decision in Campbell v. Mirror Group Newspaper Ltd. [2004] 2 AC 457 (HL) and the Australian decision in Lenah Games Meats Pty Ltd. v. Australian Broadcasting Corp. (2001) 185 ALR 1 (H. Ct. of Aust.) all deal with the public disclosure of private facts.

[8]  British Columbia Privacy Act RSBC 1996 c 373, s.1, Saskatchewan Privacy Act RSS 1978, c P-24, s.2, Newfoundland Privacy Act RSNL 1990, c P-22, s.3, and Manitoba Privacy Act CCSM c P125, s. 2(1).  Manitoba is the only legislation that does not require the actions of the defendant to be ‘wilful’, but does require the infringement to be ‘substantial or unreasonable’.  Quebec adopts a civilian approach to privacy where the right is enshrined in the notion of personhood.  Civil Code of Quebec, CQLR c CCQ-1991, art.3, “Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy.”  See Karen Eltis, “The Anglo-American/Continental Privacy Divide? How Civilian Personality Rights Can Help Reconceptualize the ‘Right to be Forgotten” Towards Greater Transnational Interoperability” (2016) 94 Can. Bar Rev. 1.

[9]  S.3, a purposive section, states: “The purpose of the Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right to privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.”

[10]  Jones v. Tsige supra note 3 at [74-75]. The term ‘moral damages’ was used by the Supreme Court of Canada to describe damages for mental distress arising as a result of wrongful dismissal causing distress from the manner of dismissal. Honda Canada Inc. v. Keays [2008] 2 SCR 362, at [59].

[11]  Ibid at [88].

[12]  Ibid at [75].

[13]  Stephen Waddams, The Law of Damages looseleaf ed. (Toronto: Canada Law Book. 2011) at [10.05].

[14]  Jones v. Tsige supra note 3 at [90].

[15]  For example, see the work of the Ontario Human Rights Commission discussed in Jeff Berryman, “Remedies before Administrative Tribunals: What Can be Learned from the Common Law?” (2010) 24 CJALP 129 at 148.

[16]  See Zurich Life Insurance Co. v. Branco (2015) 460 Sask. R. 176 (CA).  I have discussed this approach in “Non-pecuniary Damages for Personal Injury:  A Reflection on the Canadian Experience”. In Eoin Quill and Raymond Friel eds.  Damages and Compensation Culture (London: Hart Publishing, 2016) 95-112, and “Rethinking Damages for Personal Injury: Is it too late to take the facts seriously?” in Robert Sharpe and Kent Roach editors, Taking Rights Seriously (Ottawa: Canadian Institute for the Administration of Justice, 2009) 167-203.

[17]  See G. Hammond “Beyond Dignity” in Jeff Berryman and Rick Bigwood ed. The Law of Remedies: New Directions in the Common Law, (Toronto: Irwin Law, 2010) chap. 6

[18]  Arguably, this is what happened in the UK with respect to non-pecuniary damages and personal injury prompting the significant increase in these damages taken by the Court of Appeal in Heil v. Rankin[2000] 2 WLR 1173. Similarly, in New Zealand with respect to damages under the Employment Relations Act 2000 s. 123(1)(c)(i), damages for humiliation, loss of dignity, and to feelings, significantly revised in Telcom New Zealand Ltd. v. Nutter [2004] 1 NZCA 154.

[19]  Under rule 57.05(1) of the Rules of Civil Procedure the plaintiff risks a no cost ruling if they win but are awarded less than the monetary jurisdiction of the Small Claims Court which is currently set at $25,000.

[20]  2014 ONSC 6135 (CanLII).

[21]  2016 ONSC 2418 (CanLII).

[22]  (2012) 221 LAC (4th) 104.

[23]  2014 CanLII 95110 (BC LA).

[24]  2016 CanLII 10432 (ON LA).

[25]  Applying those factors:

The nature of the wrong – it was a violation of the collective agreement provision and the tort of intrusion upon seclusion.

The effect on the health of the grievor – this did cause the grievor to feel embarrassed, humiliated and disrespected by the employer.

The relationship between grievor and employer – the relationship did require mutual trust and respect.

The distress and annoyance to the grievor – distress had been occasioned by the grievor.

The conduct of the parties – the employer had apologized to the grievor, but this had only been offered once the issues of the grievance had been narrowed by the union.

[26]  Nova Scotia Trout Point Lodge Ltd. v. Handshoe 2014 NSSC 62 (CanLII), and Murray v. East Coast Forensic Hospital 2015 NSSC 61 (CanLII).

[27]  Hynes v. Western Regional Integrated Health Authority (2014) 64 CPC (7th) 150 (Nfld&Lab SC), Dawe v. Nova Collection Services (Nfld) Ltd. (1998) 160 Nfld & PEIR 266.

[28]  See most recently affirmed in Ladas v. Apple Inc. 2014 BCSC 1821 (CanLII) at [76].

[29]  [2000] BCJ No. 2400 (BCSC).

[30]  (1992) 87 DLR (4th) 401 BCSC).

[31]  2008 BCSC 1147.  Involving the secret videotaping of the plaintiff and her infant daughter.

[32]  2016 BCSC 789. Stepfather surreptitiously videotaping his stepdaughter.

[33]  [1992] 3 SCR 6, and see also S.Y. v. F.G.C. (1986) 26 BCLR (3d) 155 (CA).

[34]  Getejanc v. Brentwood College Association 2001 BCSC 822, $2,500 damages awarded.

[35]  Heckert v. 5470 Investments Ltd. 2008 BCSC 1298, $3,500 damages awarded.

[36]  Wasserman v. Hall 2009 BCSC 1318, $3,500 damages awarded.

[37]  (2016) 128 OR (3d) 352 (Sup. Ct. J.)

[38]  Ibid at [26-33].  The Canadian test requires conduct that is flagrant and outrageous, calculated to produce harm, and resulting in a visible and provable injury. See Prinzo v. Baycrest Centre for Geriatric Care (2002) 60 OR (3d) 474 (CA).

[39]  Ibid at [20-25].  The Canadian test requires that the information has the necessary quality of confidence, imparted in circumstances importing an obligation of confidence, and that there must be unauthorized use of that information to the detriment of the plaintiff. See Cadbury Schweppes Inc. v. FBI Foods Ltd. [1999] 1 SCR 142.

[40]  Ibid at [46].

[41]  [2005] 3 SCR 3 at [39].  This case dealt with damages for sexual assault and abuse that happened in Canada’s residential schools’ system set up as government policy to educate indigenous students between the 1940s and 1960s.

[42]  Whiten v. Pilot Insurance [2002] 1 SCR 595.

[43]  Supra note 37.

[44]  [2016] O.J. No. 4672 (Small Claims Ct.).

[45]  2008 BCSC 827.

[46]  In contrast, note the earlier decision in Ontario in Warman v. Grosvenor (2008) 92 OR (3d) 663 (Sup. Ct. J.) which also included both defamation and privacy actions similar to Griffin v. Sullivan, but opined that even if such an action was part of Ontario law, the damages flowing from the breach of privacy would be subsumed in the action for defamation.

[47]  To help understand the extent to which privacy and class actions are rapidly becoming part of the legal scene in Canada click on to the following site run by Sutts Strosberg, one of the pioneering and well respected plaintiff class action firms in Canada. https://www.strosbergco.com/class-actions

[48]  Class Proceedings Act 1992 SO 1992, c.6, s5(1).  In addition, there must be a representative plaintiff who will fairly represent the interests of the class and has a plan for the proceedings which sets out a workable method to proceed.  Section 6 further liberalizes the ability to certify the class by stating that the certificate will not be denied simply because the claim for damages would require individual assessment, the relief claimed relates to separate contracts, different remedies are sought for different members of the class, the number of class members or the identity of each class member is not known, or that the class includes subclasses.

[49]  Hollick v. Toronto (City) [2001] 3 SCR 158, and Pro-Sys Consultants Ld. V. Microsoft Corp. [2013] 3 SCR 477.

[50]  2014 ONSC 2135 (CanLII).  On very similar facts, also see the certification in BC in Tucci v. Peoples Trust Company 2015 BCSC 987.

[51]  The test for vicarious liability in Canada has been laid out in Bazley v. Curry [1999] 2 SCR 534. What is key is to determine the sufficiency of the connection between the employer’s creation or enhancement of risk and the wrong complained of.  In an intentional tort setting, the following factors may be used for guidance: a. the opportunity that the enterprize affords to the employee to abuse his or her powers, b. the extent to which the wrongful act may have furthered the employer’s aims, c. the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprize, d. the extent of the power conferred on the employee in relation to the victim, and e. the vulnerability of potential victims to wrongful exercise of the employee’s power. [41].

[52]  The argument made by the defendant was based upon a ruling that in a suit for negligence, absent physical injury, a plaintiff would have to demonstrate that the harm was or a recognized psychiatric illness, or serious prolonged psychological injury. Now see Mustapha v. Culligan of Canada Ltd. [2008] 2 SCR 114 at [9].

[53]  Condon v. Canada 2014 FC 250. On appeal, the Federal Court of Appeal reinstated two other causes of action, negligence and breach of contract as part of the common issues, that had been initially argued by the plaintiff, but disallowed by the trial court.  See 2015 FCA 159. This action also brought an attempt in Saskatchewan by a competing plaintiff to have carriage of the class action within Saskatchewan.  The motion was denied.  R v. Horstman [2014 SKQB 114.

[54]  Hynes v. Western Regional Integrated Health Authority 2014 CanLII 67125 (NL SCTD).

[55]  See also Hemeon v. South West Nova District Health Authority 2015 NSSC 287.

[56]  (2015) 380 DLR (4th) 506 (ONCA).

[57]  Personal Health Information Protection Act 2004 SO 2004, c.3, s.65(1) … a person affected by the order may commence a proceeding in the Superior Court of Justice for damages for actual harm that the person has suffered as a result of the contravention of this Act.  And (3) ….the Superior Court of Justice determines that the harm suffered by the plaintiff was caused by contravention or offence, as the case may be, that the defendants engaged in wilfully or recklessly, the court may include in its award of damages, an award, not exceeding $10,000, for mental anguish.

[58]  2016 ONSC 5447.

[59]  For a similar identity theft of data from the loss of health records on a USB stick see Rowlands v. Durham Regional Health 2011 ONSC 719 (CanLII).

[60]  2016 FCA 191.

[61]  Ibid at [8] the plaintiff claimed that he had suffered the following damages; costs incurred to prevent home invasion, theft, robbery, damage to property, costs incurred for personal security, damage to reputation, loss of employment, reduced capacity for employment, mental distress, inconvenience, frustration and anxiety.

[62]  R v. Tessling [2004] 2 SCR 432, at [20-24], and R. v. Spencer [2014] 2 SCR 212 at [34] et seq.

[63]  See Chris Hunt, “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada’s Fledgling Privacy Tort” (2011) 37 Queen’s LJ 167.

[64]  Supra note 42.

[65]  As in Campbell v. Mirror Group Newspaper Ltd. [2004] 2 AC 457 (HL).

[66]  Hosking v. Runting [2005] 1 NZLR 1 (CA).

[67] CBC Dec, 21, 1967. Archives http://www.cbc.ca/archives/entry/omnibus-bill-theres-no-place-for-the-state-in-the-bedrooms-of-the-nation.

[68]  Supra note 37.

[69]  Supra note 60.

[70]  Supra note 44.

[71] Protecting Canadians from Online Crime Act 2014, C 31.

[72]  X v. Y [1988] 2 All ER 648 (QB).

[73]  Amherst (Town) v. Canadian Broadcasting Corp. (1993), 126 NSR (2d) 221 (SCTD), interlocutory proceedings, final injunction upheld (1994), 133 NSR (2d) 277 (SCAD).

[74]  MEH v. Williams 2011 ONSC 2022.

[75]  2012 ONCA 35.

[76]  “Injunctions contra mundum: The Ultimate Weapon in Containment”, (2014) 26 Intellectual Property Journal 289.

[77]  [2012] 2 SCR 567.

[78]  See for example Google legal removal requests https://support.google.com/legal/answer/3110420?hl=en

[80]  2015 BCCA 265 (CanLII), leave to appeal granted 2016 CanLII 7602.

[81]  But see Vertolli v. YouTube LLC 2012 CanLII 99832 (Ont. Small Claims Ct.) – police person being recorded by arrested suspect and then displayed on YouTube claiming infringement of intrusion upon seclusion.  Motion to dismiss by YouTube on the ground s that it did not disclose a reasonable cause of action rejected.

[82]  Supra note 56.

[83]  Class Proceedings Act 1992, SO 1992, c6, s.24.

[84]  Data given by the Privacy Commission speaking at the Canadian Bar Association conference, “Access to Information and Privacy Law Symposium” Ottawa, Oct. 28-29, 2016.  Powerpoints held on file with author.

[85]  R. Mulheron, The Modern Cy-Pres Doctrine (London: UCL Press, 2006) at 259.

[86]  I have written elsewhere expressing my skepticism of cy-pres distribution schemes in class action proceedings.  See J. Berryman, “Class Actions (Representative Proceedings) and the Exercise of the Cy-Pres Doctrine: Time for Improved Scrutiny” in Jeff Berryman and Rick Bigwood ed. The Law of Remedies: New Directions in the Common Law, (Toronto: Irwin Law, 2010) chap. 22, and Jeff Berryman and Robyn Carroll, “Cy-Pres as a Class Action Remedy – Justly Maligned or Just Misunderstood?”, with Robyn Carroll, in Kit Barker and Darryn Jensen eds. Private Law: Key Encounters with Public Law (Cambridge: Cambridge University Press, 2013) 320.

[87]  The Star, “Rouge Valley faces $400M class-action lawsuit over privacy breach”, Joel Eastwood, June 14, 2014. https://www.thestar.com/news/gta/2014/06/25/rouge_valley_faces_400m_classaction_lawsuit_over_privacy_breach.html

[88]  For example, two health care workers who snooped on the late Rob Ford, Toronto’s infamous mayor, health records were fined $2,505 each, the first individual convictions under the act. https://www.thestar.com/news/gta/2016/05/06/hospital-workers-convicted-for-snooping-into-rob-fords-personal-health-files.html

[89]  Bank of Montreal v. Marcotte [2014] 2 SCR 725.

[90]  SO 2004, c 3, s.72, $100,000 for individual and $500,000 fine for organization for willful breach.

[91]  Provincial Offences Act RSO 1990, c. P.33, O. Reg. 161/00 Victim Fine Surcharges.

[92]  Victor Hugo.

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