Friday, November 07, 2014

Ontario Court awards $10K damages for Legal Aid file-peeking

The Ontario Superior Court of Justice has recently released its decision in McIntosh v. Legal Aid Ontario, 2014 ONSC 6136. While the background facts are messy and complicated (and, once again, related to jilted relationships), the one important takeaway is that the Court granted $10,000 in damages to the plaintiff based on the tort of intrusion upon seclusion after the defendant peeked into her Legal Aid file.

The defendant did not appear to defend the claim, so the court was left with assessing damages on a pretty sparse record, but one that was full of unsubstantiated claims of harms.

According to the plaintiff, her ex-boyfriend provided the defendant with the plaintiff’s full name and date of birth. The defendant used that information to access the plaintiff’s file with Legal Aid Ontario. A few days later, the defendant called the plaintiff and said that she had obtained confidential information from the plaintiff’s Legal Aid Ontario case file. The defendant’s review of the file disclosed that the plaintiff was involved with a Children’s Aid file. The defendant threatened to call the Children’s Aid Society in an effort to have the plaintiff’s children taken away from her. The plaintiff filed a complaint with legal aid and with the Information and Privacy Commissioner of Ontario. Following that investigation, Legal Aid Ontario provided a written of apology to the plaintiff. The plaintiff asserted that information was provided by the defendant to Children's Aid, an investigation took place and it was subsequently closed. There was no evidence of any other disclosure of the plaintiff’s private information.

In her claim made against Legal Aid Ontario and the individual defendant, the plaintiff alleged that as a result of such breach of privacy, she has experienced “substantial anxiety, emotion [sic] upset, depression, significant stress, embarrassment, weight loss, insomnia, isolation, and an inability to concentrate at work.”

In the course of the hearing, virtually no evidence was led to substantiate any of the pecuniary or health-related claims. The Court was left with deciding damages solely on the basis of the peeking into the file.

Here's the court's analysis of the calculation of damages in this case:

[29] The plaintiff asserts in her affidavit that the defendant used the private information to contact the Children’s Aid Society in an effort to have the plaintiff’s children taken away from her, but no documentation of any sort was filed in support of this bald allegation. The failure of the plaintiff to specify disclosure of information to the Children’s Aid Society with the original complaints or as part of the investigative process, coupled with the lack of any sort of supporting documentation, leads me to conclude that the plaintiff has failed to satisfy me that there was any disclosure of the plaintiff’s private information.

[30] In view of this finding, I am left with the task of assessing damages based upon the defendant’s improper access to the plaintiff’s private information only.

[31] The information that had been provided by the plaintiff to Legal Aid Ontario was clearly personal information. It was provided with an expectation that the plaintiff’s privacy interests would be respected and that the information would be used in connection with her legal aid application alone.

[32] The tone of the original complaint to Legal Aid Ontario itself is more consistent with irritation rather than devastation.

[33] If the invasion of her privacy did affect her emotional state, the evidence suggests that it did so in a minor fashion only. There is no detailed medical report, only a doctor’s note concerning a consultation for anxiety, something that has already been noted was a pre-existing condition. Having said that, I am satisfied that the evidence supports a finding that the disclosure of personal information caused the plaintiff a measure of annoyance, anxiety and distress.

[34] Although Legal Aid Ontario provided a letter of apology, the defendant has not seen fit to do so.

[35] After taking all of these factors into consideration, I award general damages in the amount of $10,000. In determining this amount, I have taken into consideration the resolution that occurred between the plaintiff and Legal Aid Ontario, who was originally named as a party defendant, but who is no longer involved in the claim


Though damages for intrusion upon seclusion may range from nominal to $20,000 (per Jones v Tsige), but we may see $10,000 become the standard award.

Thanks to Dan Michaluk for bringing this case to my attention. Check out his commentary on this blog at AllAboutInformation.ca.

2 comments:

John Wunderlich said...

This suggests the potential for a lot of small claims court actions.

Karen Sheahan said...

I have a similar case but can not find a lawyer who practices privacy law.