You might be surprised how often lawyers get sued for invading others’ privacy. On October 5th, the Saskatchewan Court of Queen’s Bench struck such a claim on the basis it disclosed no reasonable cause of action.
The defendant lawyer delivered a divorce petition and related documents to another law firm that had represented the plaintiff in the past, but the law firm was not authorized to receive the documents, and the applicable procedural rules called for personal service. The plaintiff pleaded a failure – i.e. that “the defendants failed to do their due diligence in ensuring McKercher LLP represented the plaintiff on the divorce matter.” The plaintiff said this failure caused a privacy violation given the documents contained information about the plaintiff’s income, property and the grounds for divorce.
Notwithstanding the disclosure of this information, the Court held that the the information disclosed by the plaintiff “was not the plaintiff’s to protect.” This is best viewed a finding based on context. The court punctuated the finding nicely by stating:
The point is this. Service of his wife’s petition on counsel who, as the plaintiff states, is a member of a firm with whom he has a solicitor-client relationship cannot reasonably be perceived to be a violation of his privacy.
The Court also held that the disclosure was not “willful,” as required by the Saskatchewan Privacy Act. Justice Klatt reviewed the law and said:
It is fair to say that there is no firm agreement across the country as to what “willfully” entails in the context of privacy legislation (see, for example, Agnew-Americano v Equifax Canada Co., 2019 ONSC 7110). However, I agree with Halvorson J.’s comments in Peters-Brown that “willfully” requires something more than the intentional commission of an act that has the result of violating privacy. In my view, it is more than recklessness, inadvertence or accident.
This narrow view is an authoritative statement on the law of Saskatchewan, though as noted, the requirement varies across Canada. In Ontario, privacy claims can be based on alleged recklessness (a concept with boundaries in the civil context that are still up for debate).
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