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).

ONSC affirms damages award for “friend’s” leak of work schedule

On April 8th, the Ontario Superior Court of Justice affirmed a $1,500 damages award for a privacy breach that entailed the disclosure of information that the defendant received because she was the plaintiff’s social media friend.

The plaintiff and defendant were pilots who worked for the same airline. The plaintiff shared his work schedule with the defendant though an application that allowed him to share his information with “friends” for the purpose of mitigating the demands of travel. The airline also maintained a website that made similar information available to employees. The defendant obtained the schedule information through one or both of these sites and shared it with the plaintiff’s estranged wife.

There are a number of good issues embedded in this scenario. Is a work schedule, in this context, personal information? Does one have an expectation of privacy in information shared in this context? Does the intrusion upon seclusion tort proscribe a disclosure of personal information?

The appeal judgement is rather bottom line. In finding the plaintiff had a protectable privacy interest, the Court drew significance from the airline’s employee privacy policy. It said:

The policy of Air Canada, that must be followed by all employees, emphasises the privacy rights of the employees. This policy specifically prohibits any employee from disseminating personal information of another employee to third parties without express permission of the other employee. The sharing of personal information between employees is clearly restricted for work related purposes only. Permission to review and obtain this information is not given unless it is for work related purposes. If the information is reviewed and used for any other purpose, this results in conduct that constitutes an intentional invasion of the private affairs or concerns. In addition, I find that a reasonable person would regard this type of invasion of privacy as highly offensive and causing distress, humiliation and anguish to the person.

The defendant did not appeal the $1,500 damages award.

John Stevens v Glennis Walsh, 2016 ONSC 2418 (CanLII).

Ontario decision suggests corporation can sue for breach of privacy

On February 19th, the Ontario Superior Court of Justice declined to strike a pleading that alleged a company unlawfully interfered with a competitor’s economic relations by receiving confidential information about a client (BC Cancer) that was sought after by both organizations. The Court held that the pleading was sustainable because BC Cancer had an arguable claim against the recipient organization based on the “intrusion upon seclusion” tort, suggesting that the tort is available to natural persons and corporations. As stressed by the Court, on a motion to strike a court errs on the side of permitting a novel but arguable claim to proceed to trial.

Fundraising Initiatives v Globalfaces Direct, 2015 ONSC 1334 (CanLII).