Sask C.A. Opines on Elements of Statutory Privacy Tort

On March 15th, a majority the Saskatchewan Court of Appeal affirmed a decision not to strike a pleading that was based on the Saskatchewan Privacy Act.

The case is about a Saskatchewan Power Corporation customer service representative who accessed account information for personal reasons. The account holder sued and the defendants, in response, moved to strike. The defendants argued that the plaintiff did not plead facts necessary to establish that the information at issue was of a quality protected by the Act. The ratio of the majority decision (written by Justice Ottenbreit) is summarized in the following paragraph:

The wording of the Act arguably does not require that a claim alleging a breach of privacy respecting information must necessarily plead that the information accessed is confidential or reveals intimate details of the lifestyle and personal choices of the plaintiff. This is not to say that the Act does not make the accessing of such information actionable and that certain Charter concepts of privacy and Charter analysis would not be apt in a particular case. To what extent Charter concepts and a Charter approach would be helpful remains to be determined. What is clear is that the Charter concept of reasonable expectation of privacy and its corollary concepts are arguably not congruent with the “privacy” or an “expectation of privacy”, the violation of which is actionable under the Act. Based on an examination of the Act, pleadings in terms of Charter concepts of reasonable expectation of privacy are arguably not therefore essential to a claim under the Act. The argument of SPC that the pleading is deficient because it lacks sufficient facts which would allege a violation of an expectation of privacy identical or very similar to the Charter concept fails.

Justice Ottenbreit said that it was enough for the plaintiff to plead that the individual defendant accessed her employer’s records “to obtain information about [the plaintiff’s] activities” for her own purposes.

Justice Smith dissented. She held that, at a minimum, a plaintiff claiming breach of an informational privacy right based on the Saskatchewan Privacy Act must plead facts to establish that the information at issue is “personal and confidential.”

Bigstone v. St. Pierre, 2011 SKCA 34 (CanLII).

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