Broutzas narrowed, privacy action certified, uncertainty abounds

On January 6th, Justice Morgan certified a class proceeding that was based on a nurse’s unauthorized access to very basic personal health information – patient status and allergy information – so she could obtain prescription drugs.

Although there were no damages to support a negligence claim, Justice Morgan held that the cause of action criterion for certification of a privacy breach claim was met because, “an infringement of privacy can be ‘highly offensive’ without being otherwise harmful in the sense of leading to substantial damages.” (IMHO, this is correct.)

In otherwise assessing the quality the nurse’s infringement, Justice Morgan distinguished Broutzas, in which Justice Perell declined to certify an action, in part, because the theft of address information from patients who had given birth at a hospital was not “highly offensive.” Justice Morgan said:

Counsel for the Plaintiff takes issue with this analysis. In the first place, he points out that the factual context of the Rouge Valley case is distinguishable from the case at bar in one important way: the patients/claimants in [Broutzas] were all in the hospital for the birth of a baby, which is perhaps the least confidential of reasons. Indeed, Perell J. recited the factual background of each patient making a claim in that case, and observed that one had announced their child’s birth and circulated photos of the new baby on social media, while another had done a Facebook posting in celebration of the birth of their new baby at the defendant hospital: Ibid, paras. 97, 106. As Plaintiff’s counsel here points out, the expectation of privacy in such circumstances is negligible.

Fair enough, but it’s nonetheless quite clear that not all judges value privacy the same way. The uncertainty in judge-made privacy law is palpable.

Stewart v. Demme, 2020 ONSC 83 (CanLII).

Notable snippet about the personal information concept in recent Ont CA search case

On January 13th, the Court of Appeal for Ontario held that a convicted appellant did not have a reasonable expectation of privacy in “what could be seen and heard on [his] property from his neighbour’s [property].”

The police trespassed on an neighbour’s rural property to conduct surveillance, and they heard gunshots and saw two individuals with rifles outside of the appellant’s house. Based on these observations, the police obtained a warrant to search the appellant’s house. They ultimately secured one or more convictions on drug and weapons charges.

The Court held, that in the context, it did not matter that the police were trespassing. (The gunshots were loud, and the appellant’s property was abutted by a public road in any event.) It also held that the police did not obtain “personal information,” reasoning as follows:

What triggered the application for the first warrant was the sound of the discharge of a firearm – something that could scarcely be concealed – coupled with visual observations of persons outdoors either firing a rifle or holding a rifle. These were bare observations of physical acts. There was no personal information obtained.

This illustrates how the personal information concept is not as simple, and perhaps not as broad, as one might think. The facts observed clearly allowed the police to infer what was in the house and obtain, on the reasonable and probable grounds standard, a search warrant. Nonetheless, the Court held that the observations did not invite a collection of personal information.

R v Roy, 2020 ONCA 18 (CanLII).

ONSC applies false light privacy tort, awards $300,000 in damages

Justice Kristjanson of the Ontario Superior Court of Justice has applied the tort of publicly placing a person in a false light in ordering an abusive husband to pay $300,000 in damages to his estranged spouse.

The defendant waged a campaign against the plaintiff in which, contrary to court orders, he published photos and videos of the couple’s two children to allege the plaintiff was a child abuser and criminal. He also targeted the plaintiff by e-mailing community members links to his content and directing various real-world publications via pamphleting and postering in the UK, where the plaintiff had sought shelter. The campaign was extreme, causing the plaintiff to become ill and fear for her safety.

Justice Kristjanson awarded $150,000 in punitive damages, $50,000 for intentional infliction of mental suffering and $100,000 for breach of privacy. The breach of privacy damages were based jointly on the public disclosure of embarrassing private facts tort and the tort that applies to publicity that places one in a false light. On the false light tort, Justice Kristjanson explained:

170      With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:
Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
171      I adopt this statement of the elements of the tort. I also note the clarification in the Restatement‘s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.
172      It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)
173      It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.
174      Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

This is the first time the false light tort has been recognized in Canada. Justice Kristjanson said the $20,000 cap on damages recognized in Jones v Tsige “may not apply” to it, though also suggested a larger award was warranted on the facts.

Justice Kristjanson also issued a 33 paragraph order that provided for broad-ranging permanent injunctive relief and made the defendant’s right of access to his children dependent on compliance. (The trial of the plaintiff’s action proceeded together with a family law trial.)

Yenovkian v Gulian, 2019 CarswellOnt 21614, 2019 ONSC 7279.

Ont CA articulates detriment requirement for a breach of confidence claim

On December 24th, the Court of Appeal for Ontario affirmed the dismissal of a breach of confidence claim because the plaintiff did not make out a “detriment.” Despite its affirmation, the Court held that the trial judge erroneously said that a breach of confidence plaintiff must prove “financial loss.” It explained, “The concept of detriment is not tied to only financial loss, but is afforded a broad definition, including emotional or psychological distress, loss of bargaining advantage, and loss of potential profits.”

CTT Pharmaceutical Holdings, Inc. v. Rapid Dose Therapeutics Inc., 2019 ONCA 1018 (CanLII).

Ont CA quashes decision to close police board meeting for failure to consider the Charter

On December 27th, the Court of Appeal for Ontario issued a significant decision about the openness of meetings conducted by the governors of public bodies.

The matter involved a decision to go in camera made by a delegate of the Thunder Bay Police Service so it could deal with a police disciplinary matter – to be precise, a decision to extend the time limit for serving a notice of disciplinary hearing on several police officers for their suspect handling of an indigenous man’s death. The delegate applied the statutory test for closing a meeting as set out in section 35(4) of the Police Services Act. He rejected an argument that the more strict Dagenais/Mentuck test applied, reasoning that he was not charged with conducting a judicial or quasi-judicial proceeding.

The Court of Appeal agreed that Dagenais/Mentuck did not apply. It nonetheless held that the delegate erred by not accounting for section 2(b) of the Charter, which it had recently held governs access to police board meetings in a case called Lagenfeld. Justice Sharpe said:

In my view, that statutory test and not the Dagenais/Mentuck test governed the exercise of his discretion. However, the s. 2(b) right recognized in Langenfeld has a direct bearing on the exercise of that discretion. Through no fault of his own, the decision maker did not consider Langenfeld. The “principle that proceedings be open to the public”, recognized by s. 35(4), is considerably fortified by the s. 2(b) Charter right recognized by Langenfeld in relation to police services board meetings.

Doré, at para. 56, explains that the administrative decision maker is “to ask how the Charter value at issue will best be protected in view of the statutory objectives” and that the core of this “proportionality exercise” will require the decision maker “to balance the severity of the interference of the Charter protection with the statutory objectives.” As Doré explains, at para. 57, this proportionality exercise “calls for integrating the spirit of [the Charter’s s. 1 reasonable limits scrutiny] into judicial review”.

The Court remitted the matter to the delegate for reconsideration, stressing various contextual factors to weigh in the balance.

The overlay of the Charter on top of statutory criteria for closing a meeting is significant. Also significantly, the Court read the Police Services Act to empower the Board to make confidentiality orders incidental to a decision about whether to close a meeting in order to achieve proportionality – a reading it said flowed from the ability to close a meeting “in part.”

The Court creates a new (and ambiguous) requirement for closing meetings that likely applies to a wide number of Ontario public bodies.

Canadian Broadcasting Corporation v. Ferrier, 2019 ONCA 1025.

Saskatchewan Commissioner recommends clean desk policy for lawyers

On November 27th, the Saskatchewan Information and Privacy Commissioner faulted the Saskatchewan Legal Aid Commission for failing to have and maintain a clean desk policy – i.e., a policy requiring files to be put away and locked overnight – given cleaning staff had unsupervised after hours access to its office. The IPC relied on the Commission’s own policy, which encouraged but did not mandate clean desks. The matter came to the IPC’s attention after cleaning staff left two layers of doors open one night.

Saskatchewan Legal Aid Commission (Re), 2019 CanLII 113284 (SK IPC).

BC Supreme Court quashes decision ordering identification of RFQ evaluators

On December 9th, the British Columbia Supreme Court held that the British Columbia OIPC erred in its handling of a claim that the identities of BC Hydro employees who had evaluated an RFQ for services at a controversial hydroelectric project should be withheld. Hydro argued that identifying information may be withheld due to the potential harm to the employees’ physical and mental health.

The Court held that the OIPC improperly elevated the test for harm set out in the Supreme Court of Canada’s Merck decision – more than a possibility but less than a probability. Helpfully, it said the OIPC was wrong to suggest that Hydro “had to establish some employees were physically hurt or employees suffered from mental health issues before bringing itself within the [applicable exemption.” It also said, “I am also troubled by the Delegate’s comment that there was no evidence proffered from employees regarding how the disclosure of their names might threaten their mental health… It was unreasonable to expect such evidence in the circumstances.”

British Columbia Hydro and Power Authority v British Columbia (Information and Privacy Commissioner), 2019 BCSC 2128 (CanLII).