Case Report – Court articulates framework for privacy tort

26 Oct

Although there have been previous cases that have recognized the common law tort of invasion of privacy in Ontario and a few recent cases in which Ontario courts have made strong statements in refusing to strike claims based on the tort, the confines of the tort have not yet been clearly articulated. On September 21st, Deputy Judge Criger issued a small claims court judgement in which she articulated a form of test that balances an individual’s expectation of privacy in personal information against any countervailing interests in the information’s collection use and disclosure. Here is her six-part test:

  1. Is the information acquired, collected, disclosed or published of a kind that a reasonable person would consider private?
  2. Has the Plaintiff consented to acquisition or collection of the information?
  3. If not, has the information been acquired or collected for a legal process or public interest reason? If so, what is that reason?
  4. Has the Plaintiff consented to disclosure or publication of the information?
  5. If not, has the information been disclosed or published for a legal process or public interest reason? If so, what is that reason?
  6. Is the legal process or public interest reason put forward for acquisition, collection, disclosure or publication one that a reasonable person would consider outweighs the interest of the individual in keeping the information private?

The case is about a plaintiff who told his aunt that he was HIV positive in confidence and the aunt’s subsequent disclosure of this information to his mother. Deputy Judge Criger held that the plaintiff had established a breach but did not prove his damages.

Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 (Ont. S.C.J.) (QL).

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