Privacy & Tort Law Developments

Tort law in Canada may take a new privacy-related turn if a recent press report is to be believed.

Data protection statues in Canada generally apply to organizations engaged in business activities. These statutes do not address the actions of individuals who misuse the personal information of others and, given the growth and popularity of social media, the potential for such misuse is high. It’s not easy to undo a “slip of the tongue” on Twitter or Facebook and because of this potential for individual “abuse”, interest in the case of Jones v. Tsige is high. In Jones, the Plaintiff and the Defendant worked at different branches of the same bank. The Defendant accessed the plaintiff’s banking records on 174 occasions over four years with no legitimate reason to do so.

The Plaintiff sued and the Defendant, taking the position that there was no tort of invasion of privacy, asked for a summary judgment dismissing the claim. The judge hearing the application agreed.The appeal of that decision was heard on 29 September 2011. Based on two reports I received – from people in the court room that day — the line of questioning from the bench would suggest that the Ontario Court of Appeal may well follow the UK House of Lords in recognizing that the tort of invasion of privacy does exist in the common law.

While we await the Jones decision, Alberta’s Court of Queen’s Bench rendered another privacy-related tort decision in June 2011 — Martin v. General Teamsters, Local Union No. 362. Martin is a challenging case to understand.

In Martin, the Plaintiff alleged that the business agent of the Defendant violated her privacy by releasing private medical information without consent. In rendering its decision, the court discussed the tort of invasion of privacy, citing Bank of Montreal v. Cochrane, which in turn cited Mohl v. University of British Columbia. The court in Martin quoted a key portion of the Cochrane decision:

“If the pleading claims a common law claim for breach of privacy, BMO argues that there is no such claim: Mohl v. University of British Columbia, [2009] B.C.J. No. 1096 (B.C.C.A.). BMO also argues that the litigation process is intended to be a public process so that anything contained in pleadings cannot be a breach of privacy.

I agree with BMO.”

It is doubtful any reasonable person would argue with BMO’s second point. Privacy legislation tends to recognize that documents in court files are not covered under these statutes and it would seem incongruent to think that privacy (whether in tort law or otherwise) could be used to frustrate the litigation process. The first argument though raises questions and the context of Mohl is important. The key quote from Mohl reads:

“As to the judge’s consideration of the breach of privacy claim, in my view he made no reviewable error.  There is no common-law claim for breach of privacy.  The claim must rest on the provisions of the Act.” [Emphasis added]

The “Act” in question is the Privacy Act – a statute that creates a statutory tort of invasion of privacy in British Columbia. It’s hard to say a common law tort of invasion of privacy exists when your legislature has expressly enacted legislation to create such a tort.   

So Martin cites Cochrane, which cites Mohl. But Mohl is from a province that has a statutory tort of invasion of privacy – something Alberta doesn’t have and a distinction that the court in Cochrane does not appear to have considered.

Where things get more interesting in Martin is that the Court then says:

“If a claimant wishes to make a claim for damages arising from a breach of privacy, the Personal Information Protection Act, S.A. 2003, c.P-6.5 requires a claimant to proceed with his or her claim before the Commissioner appointed under that Act. If the Commissioner makes an Order under the Act against an organization, an individual affected by the Order then has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the breach of the Act by the organization. (Para. 60 of the Act)”

But what if an alleged invasion of privacy is outside the scope of Alberta’s PIPA? What legal remedy exists in Alberta for individuals if no organization is involved? If PIPA does not apply, how can the section dealing with a claim for damages under the Act apply? Is Mohl distinguishable by reason of the fact that there is a statutory tort of invasion of privacy in BC? All in all, Martin raises more questions than it answers.

Tort law and privacy seem to make strange bedfellows. Hopefully, we’ll get clarity soon.