Privacy law – Intrusion upon Seclusion
In 2012 the Ontario Court of Appeal recognized the new tort of “intrusion upon seclusion” (Jones v. Tsige, 2012 ONCA 32).
The right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law tort of defamation (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.)).
In R. v. Tessling, 2004 SCC 67, the Supreme Court of Canada outlined three distinct privacy interests. The first two interests, personal privacy and territorial privacy, are deeply rooted in the common law. Personal privacy, grounded in the right to bodily integrity, protects “the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal.” Territorial privacy protects the home and other spaces where the individual enjoys a reasonable expectation of privacy. With respect to the third category, informational privacy, the Court noted:
23 Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activities we are entitled to shield from the curious eyes of the state (R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60 (CanLII)). This includes commercial information locked in a safe kept in a restaurant owned by the accused (R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10 (CanLII), at para. 16). Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”: A. F. Westin, Privacy and Freedom (1970), at p. 7. Its protection is predicated on
the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit.
….
In Jones, the Ontario Court of Appeal concluded, following an extensive review of Canadian and international jurisprudence:
[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would [page262] include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
The court noted with respect to damages:
[87] In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:
(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.
[88] I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified.
Four common law provinces have a statutory tort of invasion of privacy: British Columbia, Privacy Act, R.S.B.C. 1996 c. 373; Manitoba, Privacy Act, R.S.M. 1987 c. P125; Saskatchewan, Privacy Act, R.S.S. 1978, C. P-24; and Newfoundland, Privacy Act, R.S.N. 1990, c. P-22. All four Privacy Acts are similar. They establish a limited right of action, whereby liability will only be found if the defendant acts willfully (not a requirement in Manitoba) and without a claim of right. Moreover, the nature and degree of the plaintiff’s privacy entitlement is circumscribed by what is “reasonable in the circumstances” (see for example, Kadant Carmanah Design and IAMAW, District 250 (Video Surveillance), 2015 CarswellBC 3521, [2016] B.C.W.L.D. 335, 125 C.L.A.S. 145).
In Ladas v. Apple Inc., 2014 BCSC 1821, the British Columbia Supreme Court confirmed:
76 There can be no doubt that there is no common law tort of invasion or breach of privacy in British Columbia: see Ari v. Insurance Corp. of British Columbia, 2013 BCSC 1308 (B.C. S.C.), at paras. 63-65. Any alleged breach of privacy is only actionable under the Privacy Act (B.C.). Thus, the plaintiff (and any B.C. residents who might be members of the proposed class) can only advance a claim under the Privacy Act (B.C.).
In a recent case, Albayate v. Bank of Montreal, 2015 BCSC 695, the British Columbia Supreme Court awarded fairly “moderate” damages. In that case:
1 The plaintiff, Loretta Corbell Albayate claims against the defendant, the Bank of Montreal, for damages she alleges she suffered as a result of the bank changing her address in its computer system without her knowledge or consent. Ms. Albayate alleges that, as a result of the change, her bank statements were sent to her ex-husband’s address and her incorrect address and telephone number were provided to two credit reporting bureaus. Ms. Albayate claims her ex-husband, Farouk Abbas Albayte, opened the mail addressed to her and used the information contained in the statements to harass her. Ms. Albayate alleges the bank breached her privacy rights, and was negligent and/or in breach of its contract with her when it changed her address in its computer system without her knowledge or consent. Ms. Albayate seeks general and special damages, including damages for emotional distress, and for pain and suffering she suffered as the result of the bank’s actions.
Albayate sought close to $600,000 in damages, including damages for psychological harm and punitive damages. The court denied her claim in negligence and contract but did find that the Bank had breached her statutory privacy rights.
77 The issue of what constitutes conduct which is wilful and without claim of right was considered in Hollinsworth v. BCTV, [1998] B.C.J. No. 2451 (B.C. C.A.). After setting out s. 1 of the Privacy Act, the court stated at paras. 29-30:
[29] I turn first to the word “wilfully”. In my opinion the word “wilfully” does not apply broadly to any intentional act that has the effect of violating privacy but more narrowly to an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person. That was not established in this case.
[30] I move now to the phrase, “without a claim of right”. I adopt the meaning given by Mr. Justice Seaton to that very phrase, “without a claim of right” in Davis v. McArthur (1969), 10 D.L.R. (3d) 250: …an honest belief in a state of facts which, if it existed, would be a legal justification or excuse…
Abayate failed to prove most of heads of damages. In all of the circumstances, the Court awarded Abayate nominal damages of $2,000.