Archive | Torts (eg. Invasion of privacy) RSS feed for this section

BC court dismisses class action about iOS4 location services

3 Oct

On September 30th, the Supreme Court of British Columbia dismissed a motion for certification of a class proceeding against Apple that was about the recording of location data on Apple devices running the iOS4 operating system.

The Court applied significant rigor in weighing the proposed action against the certification criteria, giving heavy scrutiny to both the pleadings and the evidence filed in support of certification.

The Court’s finding on the common issues criterion may have broader implications. The Court acknowledged that the scope of one’s right to privacy under the BC Privacy Act is determined by the context. The plaintiff, the Court said, “has not shown any basis in fact to conclude that the reasonableness and context could be proved on a class-wide basis.” The Court reached the same conclusion regarding the “without claim/colour of right” issue – an issue that speaks to an essential element of a breach of privacy claim.

Ladas v Apple Inc., 2014 BCSC 1821 (CanLII).

HT to Barry Sookman.

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BC court strikes privacy breach claim as being within OIPC’s exclusive jurisdiction

31 Jul

On July 14th, the Supreme Court of British Columbia dismissed a privacy breach claim against a public body as being within the exclusive jurisdiction of the Office of the Information and Privacy Commissioner for British Columbia.

The plaintiff sued the ICBC and others for wrongs arising out of the collection and use of his personal information. He framed his action in a number of valid legal bases including breach of contract and breach of confidence. The claim referred to duties under the British Columbia Freedom of Information and Protection of Privacy Act; the plaintiff said these references were simply recitations of  “material facts.”

The Court found that significant parts of the claim (in their essence) addressed subject matter governed exclusively by FIPPA and its complaint resolution process. It said:

In summary, I conclude that FIPA is an exhaustive legislative scheme for the investigation and adjudication (subject to judicial review) of complaints related to the collection, use and disclosure of personal information in this province. Investigations of complaints about how a public body such as ICBC has collected, used or disclosed personal information are prescribed in FIPA. I am unable to find a role for the civil courts in these matters (except for judicial review).

This issue has been litigated in Ontario. For a case in which the Ontario Superior Court of Justice struck a claim based solely on a breach of MFIPPA, see Sampogna v Smithies. For a more recent case in which the Ontario Superior Court of Justice allowed a privacy breach claim to proceed against an health information custodian and others despite an argument that the Ontario Personal Health Information Protection Act covered the field, see Hopkins v Kay. Hopkins has been appealed to the Court of Appeal for Ontario.

Cook v The Insurance Corporation of British Columbia, 2014 BCSC 1289.

Facebook’s Graph Search: New Privacy Concerns?

23 Jan

According to a CBC News article (here), early reviews of Facebook’s new Graph Search feature are raising privacy concerns.  The search feature appears to be eerily effective in mining Facebook users’ information in responding to search queries.

For employers who may be considering using social media to verify information about current or prospective employees, the depth of information revealed by Graph Search highlights the risk that obtaining information through social media could amount to an invasion of privacy, or conflict with human rights laws (see the Ontario Human Rights Commission’s policy on using Facebook information).  Employers should tread carefully before using social media to obtain information about current or prospective employees, since the resulting information (even if obtained inadvertently) could create unanticipated liabilities.

Government limits use of external drives, to avoid data breaches

23 Jan

Here is a link to an interesting Postmedia article on how HRSDC is moving to limit use by employees of portable data devices, following several incidents in which external drives containing Canadians’ personal information were lost or misplaced.  There are many compelling reasons for employers to control how and when employees can remove data from the workplace, such as preventing data breaches, minimizing wrongful competition by employees or former employees, and avoiding claims for breach of privacy.

The Pitfalls of Accessing Private Emails

25 Jan

Here’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails.  The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation.  The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings.  He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.

The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.”  In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails.  As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.

The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations.  Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result.  However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.

The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.

Also a good reminder of the wisdom of avoiding family law litigation!