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March, 2008

The New Tort of Invasion of Privacy


The following is an excerpt from a paper prepared by Robyn M. Ryan Bell[1] of Bennett Jones LLP entitled The New Tort of Invasion of Privacy.  It was presented at the Law Society of Upper Canada program Torts Update held on December 12, 2007, in Toronto.  The program was chaired by Peter C. Wardle, Wardle Daley Bernstein LLP and Wendy M. Matheson, Torys LLP.

Introduction

Historically, Canadian courts have, for the most part, been reluctant to recognize the common law tort of invasion of privacy as an independent tort.[2] Instead, courts in Canada have resorted to the torts of nuisance, trespass, defamation, injurious falsehood, deceit and passing off[3] in an effort to protect privacy interests. But gaps remain:

...gaps in the common law leave many privacy interests unprotected, particularly where complex and contradictory interests are involved, notably in respect of issues such as electronic surveillance and the institutional storage of private information. Other interests, such as the interest of a private individual in keeping personal, albeit true, facts out of the public eye, may also be unprotected.[4]

In Ontario, two recent decisions suggest that the tort of invasion of privacy has finally moved from being an "embryonic tort"[5] to a "tort in its own right."[6]

The Meaning of Privacy

Privacy and privacy interests can be defined in a number of ways.[7] Dean William Prosser identified four different invasions of privacy interests: (i) intrusion upon a plaintiff's seclusion or solitude, or into his private affairs; (ii) public disclosure of embarrassing, private facts about the plaintiff; (iii) publicity that places the plaintiff in a false light in the public eye; and (iv) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

Somwar v. McDonalds Restaurants of Canada

In Somwar, the plaintiff was employed by McDonald's as a restaurant manager. He sued McDonald's alleging an unlawful invasion of his right to privacy:

The plaintiff subsequently learned that the defendant had conducted a credit bureau check on him without his permission. The report indicates that the inquiry from the defendant was made on October 25, 2004. The plaintiff pleads that his privacy has been illegally invaded by the defendant and pleads that he is entitled to financial compensation. The plaintiff further pleads that in order to stop the defendant from invading the privacy of other persons, there should be an award of punitive damages.[8]

The issue of whether the common law recognizes the tort of invasion of privacy came before Stinson J. on a motion by McDonald's to strike the statement of claim as disclosing no reasonable cause of action. Unlike a number of provinces[9], Ontario has no statutory remedy for invasion of privacy interests. Stinson J. approached his analysis on two levels: (i) is it fully settled in the jurisprudence that there is no common law tort of invasion of privacy; and (ii) is there a right to privacy in Canada and how is it protected?

Stinson J. reviewed the Ontario jurisprudence in which the tort of invasion of privacy has been discussed - often, but not always, in the context of motions to strike. In Capan v. Capan[10] for example, the plaintiff sued her husband for damages for continuing mental and physical harassment and invasion of privacy, alleging that he had stalked her, harassed her with telephone calls both at home and at work and forced his way into her apartment. On a motion to strike the claim, Osler J. dismissed the motion, stating that:

What is complained of here is, in its very essence, an abuse of personal rights to privacy and to freedom from harassment...[I}t has not been demonstrated that the rights referred to will not be recognized by our courts nor that their infringement will not found a cause of action.

A similar conclusion was reached by the court in Saccone v. Orr[11] where the defendant recorded a private telephone conversation with the plaintiff without the plaintiff's consent. The defendant then played the tape at a municipal council meeting and a transcript of the tape was subsequently published in a local newspaper. The court in that case rejected the defendant's argument that no tort of invasion of privacy existed in the common law of Ontario: "...I have come to the conclusion that the plaintiff must be given some right of recovery for what the defendant has done in this case."

Among the other cases reviewed by Stinson J. was Tran v. Financial Debt Recovery Ltd.[12], in which Molloy J. awarded damages to the plaintiff for the torts of defamation, intentional interference with economic interests, intentional infliction of emotional suffering and invasion of privacy. The defendant debt collection agency had failed to provide the plaintiff with particulars as to the amount outstanding on his student loans. The plaintiff had asked to be contacted at home about the loans but the defendant persisted in calling him repeatedly at work.

The other side of the Ontario jurisprudential ledger includes decisions such as Haskett v. Trans Union of Canada Inc.[13] in which Cumming J. was not prepared to recognize a stand-alone tort of invasion of privacy. Haskett alleged that the defendants, credit-reporting agencies, had unlawfully included his pre-bankruptcy debts in consumer reports and incorrectly reported them as collectible debts and sought to bring a class proceeding alleging breach of fiduciary duty, invasion of privacy and negligence. The defendants moved to strike the statement of claim. With respect to invasion of privacy, Cumming J. found that it was plain and obvious that the complaint of wrongful inclusion of inaccurate information in a credit report did not amount to a reasonable cause of action in tort; however, he acknowledged that "more recently, there has been some recognition of invasion of privacy as an embryonic tort where there is harassing behaviour or an intentional invasion of privacy."

In Weingerl v. Seo[14], an ultrasound technician videotaped the plaintiff while she was in the change room. Siegel J. refused to put any question to the jury relating to the cause of action based on the tort of invasion of privacy, concluding "insofar as a common law tort of invasion of privacy was recognized in Canada, it did not extend to these facts."

After completing his review of the Ontario jurisprudence and noting the absence of any clear statement on the point by an Ontario appellate court, Stinson J. held that it is not settled law in Ontario that there is no tort of invasion of privacy. However, his analysis did not stop there. Stinson J. went on to consider the broader right of privacy in Canada and its protection in both the criminal and civil contexts. In Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc.[15], Dickson J. (as he then was) held that the purpose of the right against unreasonable search and seizure contained in section 8 of the Canadian Charter or Rights and Freedoms was the protection of the privacy of the individual. As Stinson J put it, "[i]n effect, s. 8 is the constitutional embodiment of the ‘right to be let alone by other people.'"[16]

On the civil side, Stinson J. referred to Canadian AIDS Society v. Ontario[17], a case involving a Charter challenge to mandatory reporting of medical information. In that case, Wilson J. concluded that there is a right to privacy in the civil law context; however, after balancing the privacy rights of individuals and the state objective of promoting public health for the safety of all, she found no breach of either section 7 or section 8 of the Charter.

While acknowledging that the Charter does not apply to disputes between private individuals, Stinson J. was clear that the respect for an individual's dignity and autonomy are values underlying the Charter, and that those values are closely tied to respect for an protection of an individual's privacy. Stinson J. noted as well that the Supreme Court of Canada has made it clear that the common law must develop in accordance with Charter values. He summarized his views as follows:

With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual's personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual's privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with the Charter values and an "incremental revision" and logical extension of the existing jurisprudence.

...the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right.[18]

Stinson J. denied McDonald's motion to dismiss the plaintiff's action, but his analysis of the tort of invasion of privacy can be expected to have an impact far beyond the immediate case before him.



[1] A partner with Bennett Jones LLP. The author acknowledges the research assistance of Faran J. Umar-Khitab, student-at-law.

[2] A. M. Linden J. A., Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001) at 56.

[3] A. E. Cullingham, "Developing Torts" in L.N. Klar et al., Remedies in Tort, vol. 3, loose leaf (Carswell: Toronto, 1987) c.24 at §5; P.H. Osborne, The Law of Torts (Toronto: Irwin Law, 2000) at 231.

[4] Cullingham, supra, note 3

[5] Haskett v. Trans Union of Canada Inc. [2001] O.J. No. 4949 (S.C.J.), appeal allowed in part, (2003), 63 O.R. (3d) 577 (C.A.), additional reasons at 2003 CarswellOnt 1295 (C.A.), leave to appeal refused 2003 CarswellOnt 4754 (S.C.C.)

[6] Somwar v. McDonald's Restaurants of Canada Ltd. (2006), 79 O.R. (3d) 172 (S.C.J.)

[7] See the definitions referred to in Robyn M. Ryan Bell "Tort of Invasion of Privacy - Has its Time Finally Come"? in Todd Archibald and Michael Cochrane, Annual Review of Civil Litigation (Toronto: Thomson Carswell, 2005) at 226.

[8] Supra, note 6 at para. 3

[9] E.g., British Columbia, Saskatchewan, Manitoba, Newfoundland and Labrador.

[10] [1980] O.J. No. 1361 (Ont. H.C.)

[11] (1981), 34 O.R., (2d) 317 (Co. Ct.)

[12] [2000] O.J. No. 4293 (S.C.J.), reversed on other grounds at [2001] O.J. No. 4103 (Div. Ct.)

[13] Supra, note 5

[14] [2003] O.J. No. 4277 (S.C.J.)

[15] [1984] 2 S.C.R. 145

[16] Supra, note 6 at para 23

[17] (1995), 25 O.R. (3d) 388 (Gen. Div), affirmed at (1996), 31 O.R. (3d) 798 (C.A.)

[18] Supra, note 6 at paras. 29 and 31.

 

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