Court declines to strike police officer’s privacy claim

19 Sep

On September 11th the Ontario Small Claims Court dismissed a motion to strike a privacy claim brought by a police officer who was video recorded in the course of his duties.

The individual defendant was arrested by the officer. He recorded the arrest on video and published a video called “Arrested riding my E-Bike” on YouTube, who allegedly did not take the video down when contacted by the plaintiff.

YouTube brought the motion to strike. The Court dismissed it because YouTube did not meet the relatively onerous requirement to strike an Ontario small claims action. After referring to the Court of Appeal for Ontario decision in Jones v Tsige, the Court said, “I find that the plaintiffs [sic] claim does in fact disclose a reasonable cause of action and is not inflammatory, a waste of time, a nuisance or an abuse of the court process.”

Vertolli v YouTube LLC, [2012] OJ NO. 4275 (SCJ) (QL).

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2 Responses to “Court declines to strike police officer’s privacy claim”

  1. Michael Dundas September 24, 2012 at 12:35 am #

    I was trying to find out more of the details of this. I guess that means that if one is in a public place we do have a right to privacy then? My impression of courts to date is that if you are outside your home, an expectation of privacy is incorrect and you can be video taped, recorded etc.
    Would like to understand the details of this ruling.

  2. Dan Michaluk September 24, 2012 at 11:30 am #

    Thanks for the comment Michael, which is about “reasonable expectation of privacy” concept that defines the scope of privacy protection in the Charter and civil action context in Canada.

    You’re right that a court is less likely to recognize a reasonable expectation of privacy in activity in occurring in public space, but there is no bright line. The reasonable expectation of privacy concept, in fact, is highly contextual and normative – which means a Court looks at the activity in all the circumstances and ask, “Should this be protected as private in our society?” It makes for a nuanced and unpredictable test. Hence, former Supreme Court of Canada Justice Gerard LaForest, in 2002, said that it would be “far too facile” to rule out Charter application to surveillance of public streets by the RCMP.

    As for this decision, this preliminary ruling has very limited legal significance. The plaintiff will have a number of negative facts to deal with in making his claim, including:

    -his actions were recorded in public space
    -he was engaged in the course of work
    -he was engaged in the course of work as a police officer

    This decision allows him to proceed and argue that his privacy should be protected notwithstanding these facts. Even though a small claims court case, it could be quite significant if it proceeds to a ruling.

    Thank you again for reading and commenting.

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