Tag Archives: civil privacy claims

Federal Court of Appeal reverses certification of privacy class action

1 Jul

On June 24th, the Federal Court of Appeal overturned the certification of a number of causes of action in a class action that claims damages for the sending of a letter that identified the sender as the “Marihuana Medical Access Program.”

The intended recipients were, in fact, individuals authorized to possess medical marihuana. They claim the letter disclosed this fact and exposed them to various harms. The Federal Court certified the action last July based on a finding that the claim set out a number of valid causes of action.

The Federal Court of Appeal allowed the action to proceed based on claim alleging that the government’s negligence (and breach of confidence) caused the following damage: costs incurred to prevent home invasion, costs incurred for other personal security, damage to reputation, loss of employment, reduced capacity for employment, and out of pocket expenses. The Court of Appeal affirmed that a claim for such damages is actionable and “not entirely speculative.”

The Federal Court of Appeal overturned certification of three other causes of action:

  • It held that the pleading did not establish a valid claim of contractual breach because it set out no exchange of promises backed by valuable consideration. The existence of an enforceable contractual contract was also not apparent in the circumstances given the arrangement between government and the representative plaintiff was invited and structured by statute.
  • It held that the pleading did not establish a valid claim for public disclosure of private facts because the pleadings did not support a finding that the government “published” private facts: “…the concept of ‘publicity’ means that ‘the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'”
  • It held that the pleading did not establish a valid claim for intrusion upon seclusion because it did not support a finding of the required state of mind (i.e., intent or recklessness): “At best, the material facts pleaded support the notion that an isolated administrative error was made.”

The Court’s limitation of the claim to one based on negligence is significant because it precludes access to “moral damages.” While the Court said the pleaded special damages were not so speculative to disallow the claim, it’s questionable whether the actual damages suffered by members of the class amount to much at all.

Canada v John Doe, 2016 FCA 191.


BC class action alleging vicarious liability for employee’s snooping to proceed

19 Nov

Yesterday the Court of Appeal for British Columbia held that a class action alleging vicarious liability for breach of the British Columbia Privacy Act should not be struck.

The claim is based on an allegation that an ICBC employee improperly accessed the personal information of about 65 ICBC customers. The Court dismissed ICBC’s argument that the Privacy Act only contemplates direct liability because its statutory tort rests on wilful misconduct. The Court reasoned that a requirement of deliberate wrongdoing is not incompatible with vicarious liability.

ICBC also raised a seemingly dangerous policy question for a data breach defendant: “Should liability lie against a public body for the wrongful conduct of its employee, in these circumstances?” The Court said this question should be answered based on a full evidentiary record.

While allowing the vicarious liability claim to proceed, the Court held that the plaintiff could not found a claim on an alleged breach of the safeguarding provision in British Columbia’s public sector privacy act. It did consider whether to recognize a common law duty to abide by the safeguarding provision, but held that it should not do so based on policy grounds, including the need to defer to the comprehensive administrative remedial regime provided for by the legislature.

Ari v Insurance Corporation of British Columbia, 2015 BCCA 468 (CanLII).

Case Report – Court finds constructive dismissal for engaging in workplace surveillance

24 Dec

On December 15th, the Ontario Superior Court of Justice held that an employee was constructively dismissed because her employer installed a video camera in her office on questionable grounds and recorded images surreptitiously for about nine months before she discovered the camera and abruptly quit.

Prudent employers and their counsel have long been cautious about the enforcement of employee privacy rights through constructive dismissal claims, claims in which an employee alleges a fundamental breach of an express or implied term of an employment contract based on a privacy violation. This case, however, is the first I’m aware of in which such a claim has been successfully made.

While significant in illustrating the risk to employers who take a casual approach to employee privacy, the outcome is not surprising given the facts. Most significantly, the employer installed the camera to address an undisputed theft problem, but did not suspect the plaintiff. The only reason it had for installing the camera in her office was that it thought the suspects would go to the plaintiff’s office to “review the loot,” a suggestion the Court said was “preposterous.” The plaintiff also appears to have discovered the camera when she visited a supervisor’s office and saw a live feed of her office, raising a serious question about use and security of the images.

The Court did not mention whether the employer had a policy incorporated into the employment contract that gave it license to conduct surreptitious monitoring of its workplace or anything about the plaintiff’s expectation of privacy, but even a well-drafted and properly incorporated policy might not have given rise to an effective defence on these facts.

Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (ON S.C.).