Newfoundland court recognizes intrusion upon seclusion tort

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.

Power v. Mount Pearl (City), 2022 NLSC 129 (CanLII).

Intrusion upon seclusion is an intentional tort – Ont CA

The Court of Appeal for Ontario has addressed an important point about the intentionality element in the intrusion upon seclusion tort.

The Court dismissed an appeal by a nurse who claimed her employer’s liability insurer had a duty to defend her from claims that arose out of her unauthorized access to patient information. The issue was whether policy language limiting coverage for “expected” or “intended” injury applied, which required the Court to analyze whether an allegation that one has committed the intrusion tort is an allegation of intentional conduct.

The Court said “yes,” and made clear that recklessness is a form of intentional conduct:

Although the Jones decision does not contain a definition of “reckless,” it places reckless conduct side-by-side with intentional or deliberate conduct. Jones adopted the Restatement’s formulation of the tort as involving an intentional intrusion. As well, the decision limited claims for intrusion upon seclusion only to “deliberate and significant intrusions of personal privacy”: Jones, at para. 72. One cannot tease from the discussion in Jones any support for the proposition advanced by Ms. Demme that Jones’ inclusion of a reckless act within the tort of intrusion upon seclusion could involve unintentional conduct.

The Court also articulated the precise state of mind that meets the intentionality element:

For that tort, the relevant intention is the defendant’s intention to access private patient records. If that is demonstrated, the nature of the tort is such that the intention to access the records amounts to an intention to cause injury.

The appellant had argued that she lacked the intent to cause injury and therefore ought to have been covered.

Demme v. Healthcare Insurance Reciprocal of Canada, 2022 ONCA 503 (CanLII).

Sask QB addresses willfulness requirement in a privacy claim

You might be surprised how often lawyers get sued for invading others’ privacy. On October 5th, the Saskatchewan Court of Queen’s Bench struck such a claim on the basis it disclosed no reasonable cause of action.

The defendant lawyer delivered a divorce petition and related documents to another law firm that had represented the plaintiff in the past, but the law firm was not authorized to receive the documents, and the applicable procedural rules called for personal service. The plaintiff pleaded a failure – i.e. that “the defendants failed to do their due diligence in ensuring McKercher LLP represented the plaintiff on the divorce matter.” The plaintiff said this failure caused a privacy violation given the documents contained information about the plaintiff’s income, property and the grounds for divorce.

Notwithstanding the disclosure of this information, the Court held that the the information disclosed by the plaintiff “was not the plaintiff’s to protect.” This is best viewed a finding based on context. The court punctuated the finding nicely by stating:

The point is this. Service of his wife’s petition on counsel who, as the plaintiff states, is a member of a firm with whom he has a solicitor-client relationship cannot reasonably be perceived to be a violation of his privacy.

The Court also held that the disclosure was not “willful,” as required by the Saskatchewan Privacy Act. Justice Klatt reviewed the law and said:

It is fair to say that there is no firm agreement across the country as to what “willfully” entails in the context of privacy legislation (see, for example, Agnew-Americano v Equifax Canada Co., 2019 ONSC 7110). However, I agree with Halvorson J.’s comments in Peters-Brown that “willfully” requires something more than the intentional commission of an act that has the result of violating privacy. In my view, it is more than recklessness, inadvertence or accident.

This narrow view is an authoritative statement on the law of Saskatchewan, though as noted, the requirement varies across Canada. In Ontario, privacy claims can be based on alleged recklessness (a concept with boundaries in the civil context that are still up for debate).

Kumar v Korpan, 2020 SKQB 256 (CanLII).

ONSC applies false light privacy tort, awards $300,000 in damages

Justice Kristjanson of the Ontario Superior Court of Justice has applied the tort of publicly placing a person in a false light in ordering an abusive husband to pay $300,000 in damages to his estranged spouse.

The defendant waged a campaign against the plaintiff in which, contrary to court orders, he published photos and videos of the couple’s two children to allege the plaintiff was a child abuser and criminal. He also targeted the plaintiff by e-mailing community members links to his content and directing various real-world publications via pamphleting and postering in the UK, where the plaintiff had sought shelter. The campaign was extreme, causing the plaintiff to become ill and fear for her safety.

Justice Kristjanson awarded $150,000 in punitive damages, $50,000 for intentional infliction of mental suffering and $100,000 for breach of privacy. The breach of privacy damages were based jointly on the public disclosure of embarrassing private facts tort and the tort that applies to publicity that places one in a false light. On the false light tort, Justice Kristjanson explained:

170      With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

171      I adopt this statement of the elements of the tort. I also note the clarification in the Restatement‘s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.

172      It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)

173      It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.

174      Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

This is the first time the false light tort has been recognized in Canada. Justice Kristjanson said the $20,000 cap on damages recognized in Jones v Tsige “may not apply” to it, though also suggested a larger award was warranted on the facts.

Justice Kristjanson also issued a 33 paragraph order that provided for broad-ranging permanent injunctive relief and made the defendant’s right of access to his children dependent on compliance. (The trial of the plaintiff’s action proceeded together with a family law trial.)

Yenovkian v Gulian, 2019 CarswellOnt 21614, 2019 ONSC 7279.

BCCA – No privacy claim against lawyer

On January 9th, the Court of Appeal for British Columbia affirmed the dismissal of a claim against a lawyer that was based in part on his service of application materials and in part on his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service. The plaintiff also argued that the defendant should have crafted his application materials to protect the plaintiff’s privacy – serving notices “containing only information relevant to the particular relief that might concern each company.”

The Court held that the impugned action was deemed not to be an invasion of privacy based on section 2(3)(b) of the British Columbia Privacy Act, which states that the publication of a matter is not a violation of privacy if “the publication was privileged in accordance with the rules of law relating to defamation.” The defendant, the Court explained, was acting in the course of his duty to his client, and occasion protected by absolute privilege.

The “casual conversation claim” arose from a discussion the defendant had with another lawyer during a break in discovery in another case. The defendant said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the defendant was speaking about the plaintiff.

The Court affirmed the trial judge’s finding that the plaintiff failed to prove the information disclosed was private and subject to a reasonable expectation of privacy. More significantly, it affirmed an obiter finding that that the defendant’s disclosure was not wilful.

Duncan v Lessing, 2018 BCCA 9 (CanLII).

No privacy breach for reporting what’s on the court’s record

On August 10th, the Ontario Superior Court of Justice dismissed a privacy claim brought against the publishers of The Lawyer’s Weekly for reporting on the plaintiff’s involvement in a small claims court proceeding. The Court adopted the following defendant submission:

Further, recent developments in the common law regarding invasion of privacy have fallen well short of the cause of action asserted by Bresnark. On the facts of this case, there is no ‘intrusion upon seclusion’, nor even any disclosure of ‘private facts’. Indeed, the Article is wholly based on public court proceedings and the facts and findings disclosed on the record in those cases. Therefore, the cause of action asserted in paragraph 4 of the statement of claim should be struck as disclosing no cause of action. It is plain and obvious that it has no chance of success.

The Court also dismissed a defamation claim as statute-barred.

Bresnark v Thomson Reuters Canada Limited, 2016 ONSC 5105 (CanLII).