The Ontario Court of Appeal issued a very important decision today that recognizes an “intrusion upon seclusion” tort.

Under Ontario law it is now clear that individuals can sue for breach of privacy based on proof of:

1. an intentional unauthorized intrusion;
2. which is an intrusion upon private affairs or concerns (i.e., that breaches a reasonable expectation of privacy); and
3. that is made in circumstances that are highly offensive to the reasonable person.

If these elements are proven, harms that justify the award of moral damages will be presumed. Such damages will be awarded “to mark the wrong that has been done” in an amount that does not ordinarily exceed $20,000, with an amount being set based on:

1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff‟s health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

The Court stressed that valid claims for intrusion upon seclusion will only arise “for deliberate and significant invasions of privacy” and also said that the law will develop affirmative defenses based on countervailing claims for the protection of freedom of expression and freedom of the press.

Jones v. Tsige, 2012 ONCA 32.

The British Columbia Supreme Court awarded nominal damages for a privacy breach on November 23rd of last year.

The plaintiffs advanced the claim under the British Columbia Privacy Act. The Court awarded $100 to a defendant’s estranged mother because the defendant read and made a copy of her will after finding it while searching for her own documents. It also awarded a company operated by the estranged mother $50 because the defendant read and made a copy of a business letter and showed it to others. (The parties agreed that a corporation could sue for breach of privacy under the statute.)

The Court also held that the defendant’s brother, who had merely viewed a copy of the business letter, did not breach the Act.

Fillion v. Fillion, 2011 BCSC 1593 (CanLII).

On December 12th the Court of Appeal for British Columbia dismissed an appeal of a November 2010 award of damages for defamation and breach of privacy.

The $40,000 award was based partly on a number of publications made by an ex-husband about his ex-wife that the British Columbia Supreme Court held were defamatory and unjustified. The Supreme Court also upheld a privacy claim based on the ex-husband’s use of e-mail communications he obtained from an old home computer and distributed for the purpose of scandalizing his ex-wife.

The Court of Appeal dismissed the appellant’s procedural grounds for appeal without comment on the merits.

Nesbitt v. Neufeld, 2011 BCCA 529 (CanLII).

On November 7th, the Information and Privacy Commissioner/Ontario issued a very significant order for Ontario universities. It held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request and created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university.

The matter relates to a very broad access request that was made to the University of Ottawa immediately after universities came under FIPPA in 2006. The University made a broad collection request of faculty members that led to a grievance by the University’s faculty association (AUPO) that Arbitrator Philip Chodos upheld in 2008. Arbitrator Chodos held that the University violated its faculty agreement by sending the collection request. In May 2009, Arbitrator Chodos issued a second order in which he endorsed a proposal by the association that suggested only a limited number of faculty records were under the custody or control of the University. After this decision, the University denied the request with reference to the Chodos award and on the basis that it had no responsive records. The requester appealed to the IPC.

Adjudicator Smith of the IPC made two important findings.

First, Adjudicator Smith held that the IPC has exclusive jurisdiction to decide whether a record is in the custody or control of a university in the context of an access request. She said:

Applying the two-part test in Weber, it is clear that the legislature intended that issues arising from requests and appeals under the Act be determined by the head, and on appeal, by the Commissioner, and not by a labour arbitrator. Considering the governing legislation (that is, the Act) as applied to the dispute in the relevant factual matrix, as outlined in the foregoing analysis, and bearing in mind that the arbitrator’s authority only arises under the collective agreement, an instrument that is not determinative of the issue of custody or control, I find that, in the context of an access- to-information request made under the Act, the Commissioner has the exclusive jurisdiction to determine this issue.

Second, Adjudicator Smith created a principle-based framework to assess whether records possessed by faculty members are in the custody or control of a university. She said:

Accordingly, I conclude that the arbitral awards are not determinative with respect to the custody or control of records that may be responsive in this case. Rather, the determination is to be made based in the principles enunciated in this order. The significant conclusions I have reached in this regard are:

1. records or portions of records in the possession of an APUO member that relate to personal matters or activities that are wholly unrelated to the university’s mandate, are not in the university’s custody or control;

2. records relating to teaching or research are likely to be impacted by academic freedom, and would only be in the university’s custody and/or control if they would be accessible to it by custom or practice, taking academic freedom into account;

3. administrative records are prima facie in the university’s custody and control, but would not be if they are unavailable to the university by custom or practice, taking academic freedom into account.

Based on these findings, Adjudicator Smith ordered the University to request that association members produce responsive records that are in the University’s custody or control, taking into account the three stipulated criteria. She also suggested that the University require faculty members to create “lists or indices of records or portions of records for which the question of custody or control may be in dispute, including a brief explanation of why a record or records would not be in the university’s custody or control.”

This is complicated and requires further thought. One question I have is whether the recognition of academic freedom in the second “custody or control criterion” is likely to satisfy the faculty association and dissuade it from pursuing judicial review. Another is about the potential effect of the exclusive jurisdiction finding. What if a faculty member takes a position on custody or control and refuses to produce a record for processing? Under the IPC’s approach that dispute will seemingly raise an issue about custody or control under FIPPA, but how can it not arise out of the collective agreement? We might look to a labour arbitrator response to this question in time. And why does a university’s right of access – a right arising out of employment – have anything to do with the FIPPA custody or control standard anyway? Finally, this illustrates the high costs of mixed-use information systems. Consider the extreme cost of the indexing exercise proposed by Adjudicator Smith, all borne out of a need to protect academic freedom and faculty confidentiality because information of different kinds is intermingled on a single system. Is it really the case that academic freedom cannot coexist with a university right of access that’s necessary for a legitimate purpose?

University of Ottawa – Order PO-3009-F (November 7, 2011).

I presented on preserving evidence of internet publication today at our semi-annual internal professional development session. I used the session to promote immediate, periodic and broad preservation because when content comes down from social media sites it is as good as lost. My worry is that objectionable words will be preserved without also preserving the relevant context thereby impeding prosecution by opening up a spoliation issue.

Slides below, with annotations over at Slideshare. Thank you to articling student Matthew Scott for assistance on this.

On October 26th, the Supreme Court of Newfoundland and Labrador (Court of Appeal) held that the Newfoundland Information and Privacy Commissioner can require a public body to produce records claimed to be exempt from public access as subject to solicitor-client privilege.

The Newfoundland Access to Information and Protection of Privacy Act gives requesters a right to seek review of an access decision either through the Commissioner or the Trial Division. In the event of a review, the Commissioner may require production of records, and a public body has a corresponding duty under section 52(3) to provide responsive records “notwithstanding another Act or a privilege under the law of evidence.”

The Court held that section 52(3) allows the Commissioner to compel the production of records claimed to be exempt from public access as subject to solicitor-client privilege. It relied on the provision’s ordinary meaning interpreted in light of legislative purpose, which it said was “to provide for an independent review officer, as an alternative to the courts, who can undertake a timely and affordable first level review of all information request denials.”

The Court also made the following notable comment about the exercise of discretion to demand a review of documents subject to a privilege claim:

If the Commissioner were to receive a letter (or possibly an affidavit) from a senior Justice official indicating that all materials were provided as per an access to information request save for documents containing legal advice (identified by subject matter, date and solicitor) could not the Commissioner reasonably rely on that to conclude that the documents in question are in fact privileged? Such an arrangement, it seems to me, should operate to deal with the vast majority of cases. And, in the few where the Commissioner felt compelled to pursue matters further, the discussion would be focused in a way that should assist reasoned consideration.

The key to all this is good faith in the exercise of authority. With that comes mutual trust, by the Commissioner that senior Justice officials are being truthful and by Justice officials that the Commissioner will not unreasonably call for the production of legal opinions and advice. Cooperation should be the rule and litigation very much the exception.

Newfoundland and Labrador (Information and Privacy Commissioner) v. Newfoundland and Labrador (Attorney General), 2011 NLCA 69 (CanLII), retrieved on 2011-11-1.