In somewhat strange circumstances, the Supreme Court of Newfoundland and Labrador has recognized the intrusion upon seclusion privacy tort.
The Court made its recognition in deciding a procedural motion in a Municipal Elections Act appeal by two City of Mount Pearl councillors who were sanctioned for not disclosing a conflict of interest. The alleged conflict arose out of their discussions with the Town’s former CAO while he was on administrative leave and the subject of a harassment investigation.
The City had discovered the conflict after it seized the CAO’s work iPad, which was still sending snippets of messages from the CAO’s personal Facebook Messenger account to the iPad’s home screen. Staff from IT saw the troubling messages, gave the iPad to the Clerk who saw more troubling messages, and the City eventually downloaded the messages for its use as evidence. At some point later, the messages were leaked to the CBC.
Whether the common law right of action for intrusion upon seclusion exists in Newfoundland had not yet been determined but was certified as a common issue in Hynes v. Western Regional Integrated Health Authority, 2014 NLTD(G) 137. Here, the Court held that the province has “a common law tort for intrusion upon seclusion” and that it “coexists with rights created under the [Newfoundland and Labrador] Privacy Act.”
Not surprisingly, in light of the Supreme Court of Canada decision in R v Cole, the Court found a privacy expectation that warranted protection, though its analysis on this point bleeds into its finding that the City’s actions were “highly offensive.” It went on to exclude the messages from the appeal record on the basis of its procedural power.
I might have thought this was a closer case than the outcome suggests, but privacy is such a subjective concept that it’s hard to predict how a judge will view a matter. It’s also another case about using a work computer to access content in a private cloud account, which apparently touches a judicial nerve.
Hindsight is 20/20, but as the judge said, the City could have stopped once it viewed the snippets and used the observations made by IT and the Clerk to request access from the CAO (who was presumably still employed and with a duty to cooperate and who faced a possible adverse inference). I would be concerned about the potential destruction of evidence – all stored in the CAO controlled account – but (unfortunately) the Court did not consider this factor.