Case Report – Raitt “lost recorder” judgement published

13 Jun

The Nova Scotia Supreme Court has published Moir J.’s decision on the lost digital recorder containing embarrassing comments made by Minister of Natural Resources Lisa Raitt. I was quoted by the National Post here, but really didn’t have much to say at the time. This is no criticism of the conclusion embodied in Moir J’s cursory (oral) judgement, but now that I’ve read it I confess to still having more questions than answers!

The scenario is made for a law school exam:

  • Conversation between MacDonnell and Raitt, Raitt a public figure
  • Recording made unknowingly and in presence of limousine driver
  • Recorder misplaced by MacDonnell in a bathroom
  • Recorder found and passed to reporter
  • Reporter contacts MacDonnell to advise of finding
  • MacDonnell says she’ll pick the recorder up, but doesn’t
  • Time passes
  • MacDonnell misplaces Ministry’s confidential documents and resigns
  • Raitt comes under scrutiny
  • Reporter listens to recording in the name of the public interest
  • Reporter gives notice of intent to publish recording

Ms. MacDonnell relied on a privacy and property based claim. Moir J. held that she had not established a case sufficient to restrain publication. Here is the core of his oral judgement:

I agree with the submission for the Herald that the recorded conversation was not private because some or all of it was heard by a department driver…

Here is where I see the restriction on prior restraint having some place in laws of invasion of privacy, if such a tort is to emerge. It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.

Bailment and conversion are torts applicable to personal property rights. The digital recorder was personal property. There is no bailment, and can be no conversion, of pure information. Information is protected as intellectual property.

Here are my questions. Wasn’t the driver bound to secrecy? Was this fatal to the expectation of privacy claim? When should poor record keeping constitute abandonment? How critical was Ms. MacDonnell’s failure to pick up the recorder as planned? Did she tell the reporter not to listen? Would that have made a difference? Did the information at issue and the public’s interest in receiving it weigh in the balance? If so, to what extent. You can start to see how the parameters of a privacy claim are very complex.

Two other points. One, the judgement creates a hierarchy of concepts: privacy seems less important than privilege and trade secret protection. I recently blogged about the Daniel Potter case here. It does the same thing. Two, whether the property torts can be used to re-gain control of information is a big issue for employers. I’ve blogged about it here.

MacDonnell v. Halifax Herald Ltd., 2009 NSSC 187.

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