New hope for the tort of "invasion of privacy"?

The March 2006 edition of the Canadian Privacy Law Review is out and it includes the following article:

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New hope for the tort of “invasion of privacy”?
David T.S. Fraser*

(Reprinted by permission of LexisNexis Canada. Inc., from Canadian Privacy Law Review,. edited by Michael Geist, Copyright 2006.)

With so much focus on PIPEDA, the PIPAs, the HIAs, PHIPA and others, the notion that there’s an independent tort of invasion of privacy has been somewhat lost in the shuffle as of late. Newfoundland, Manitoba, Saskatchewan and British Columbia, with their statutory torts for invasion of privacy have settled the debate in those provinces. Observers in the other common law provinces are left, from time to time, scratching their heads as to whether there even is an ability to bring a civil suit for invasion of privacy, independent of any wrong that is addressable under the personal information protection statutes or independent of another actionable wrong, such as trespass.

To use Newfoundland as an example, the Privacy Act[1] makes it an actionable wrong if someone violates the privacy of another:

Violation of privacy

3. (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of an individual.

(2) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, regard being given to the lawful interests of others; and in determining whether the act or conduct of a person constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties.

The Act further clarifies what circumstances are presumed to be an invasion of privacy and also establishes specific defenses to the tort.

In the remaining common law provinces, including Ontario and the Maritimes, the court decisions have gone both ways about whether there is an independent tort of invasion of privacy. The recent case of Somwar v. MacDonald’s Restaurants of Canada Ltd.[2] opens the door further to this possibility in Ontario.

The facts in Somwar are relatively simple: The plaintiff, Mr. Somwar, was a MacDonald’s employee. The company carried out a credit check on Mr. Somwar without his knowledge or consent, and Mr. Somwar brought an action against MacDonald’s for invasion of privacy, seeking general damages and an award of punitive damages to dissuade the company from repeating this again with other employees. The defendant made an application under the Ontario Rules of Civil Procedure[3] to have the plaintiff’s statement of claim struck out as it disclosed no reasonable cause of action. It was argued that the laws of Ontario do not include the common right of action for invasion of privacy.

At this stage in litigation, the task of the Justice sitting in chambers is not to determine liability or even to decide whether the actions complained of are actionable. The sole task is to determine whether it is “plain and obvious” that the plaintiff’s claim could not proceed if the matter were to go to trial. The striking out a plaintiff’s claim is reserved for those circumstances where proceeding any further would be a waste of time for the parties and the courts. If there is a simple possibility that the plaintiff might succeed at trial, the Civil Procedure Rules are designed to allow it to run its course. Any pronouncements from the bench at this stage in the proceeding must be interpreted in light of this context. The question is not whether there is a common law tort of invasion of privacy, but rather whether there might be. In the result, Stinson J. determined that there might be and goes even further to say there should be.

Lacking any clear pronouncement from the appellate courts, Justice Stinson of the Ontario Superior Court of Justice canvassed a range of lower-court decisions dealing with alleged invasions of privacy. To this end, Stinson J. borrowed from the analytical framework set out by Dean William Prosser in his seminal California Law Review article, “Privacy”[4] and considered Ontario cases that addressed “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”[5]

The cases cited by Stinson J. in Somwar that fall into this category do not provide unequivocal guidance on whether the such a tort exists. A handful of decisions from Ontario’s lower courts have allowed claims or have at least allowed actions to proceed to trial based upon alleged intentional invasions of privacy, many of which are also associated with other causes of action, such as nuisance.[6] On the motion to dismiss the plaintiff’s claim, the cases reviewed provide sufficient grounds for Stinson J. to conclude that it cannot clearly be said that there is no common law tort of invasion of privacy.

The foregoing is sufficient to dismiss the defendant’s motion, but the Court goes further and offers the conclusion that the time is right for a clear recognition of a common law right to privacy. Stinson J. begins this part of his analysis by posing the question: “is there a right to privacy in Canada and how is it protected?”[7]

In the age of the Charter, the Supreme Court of Canada has been explicit that the common law must evolve to become consistent with “Charter values”. The leading case on this point, Hill v. Church of Scientology of Toronto,[8] is cited by Stinson J., who quotes from Cory J.’s majority decision:

Historically, the common law evolved as a result of the courts making those incremental changes, which were necessary in order to make the law comply with current societal values. The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.[9]

Section 8 of the Charter provides individuals with a constitutional right that is analogous with the “right to be let alone”: “Everyone has the right to be secure against unreasonable search or seizure.” While the Charter only applies to individuals vis-à-vis the state, the Supreme Court’s pronouncements on Section 8 lead to the conclusion that Charter values require that the common law recognize a “right to be let alone” between individuals.

Stinson J. refers to the judgement written by La Forest J. in R. v. Dyment,[10] in which the Court identifies three zones of privacy, one of which is privacy of personal information. La Forest J. rooted this privacy interest in “the notion of the dignity and integrity of the individual.”[11] Recent advances in technology that can be used to collect and disseminate personal information also prompt Stinson J. to recommend that the common law make the incremental changes to keep up with Charter values and with potentially-intrusive technology:

[29] 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 Charter values and an “incremental revision” and logical extension of the existing jurisprudence.

While the importance of the Somwar case should not be overstated, keeping in mind that it relates to a motion to strike a statement of claim and is not a final, determinative judgement at trial. The test to be applied is only whether there could be such a cause of action, rather than whether there is one. However, the Court made the notable step of going beyond this simple question by propounding that the Charter and advancing technology may necessitate the updating of the common law to incorporate a clear right “to be let alone” between two private actors. Whether Justice Stinson’s decision will be followed by other lower courts and whether the appellate courts will concur are both open questions, but the decision should not be ignored as a simple interlocutory judgement on a low-threshold question. It likely represents part of a trend toward recognizing a free-standing right to privacy in those provinces where the legislatures have not stepped in to provide a statutory one.

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* David T.S. Fraser is the chairman of the privacy group at McInnes Cooper and is also a part-time member of the Faculty of Law at Dalhousie University.

[1] R.S.N.L. 1990, c. P-21.

[2] 2006 CanLII 202 (Ont. C.J.) (http://www.canlii.org/on/cas/onsc/2006/2006onsc10045.html) (“Somwar”).

[3] R.R.O. 1990, Reg. 194, Rule 21.01(1)(b).

[4] William L. Prosser, “Privacy” (1960) 48 Cal.L.Rev. 383.

[5] Prosser’s article classifies invasions of privacy in the following categories: “(i) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (ii) public disclosure of embarrassing private facts about the plaintiff; (iii) publicity which 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”. Quoted in Somwar, at para. 9.

[6] Stinson J. refers to the following cases in this group: Capan v. Capan, [1980] O.J. No. 1361 (H.C.J.) (application to strike statement of claim; defendant did not establish that stalking, harassment and entry into the plaintiff’s home could not found a cause of action); Saccone v. Orr (1981), 34 O.R. (2d) 317 (Co.Ct.) (recording of a private telephone conversation that was subsequently broadcast at a municipal council meeting and then published in a local newspaper; Court concluded that the plaintiff “must be given some right of recovery” for actions of the defendant); Roth v. Roth, (1991), 4 O.R. (3d) 740 (Gen. Div.) (action related to blocking access to property and shutting off electricity of the plaintiff’s cottage; Court concluded that whether the case is actionable depends upon the circumstances and the rights in conflict; invasion of privacy is not derived from a property right and the interests of both the individual and society are served by proceeding); Lipiec v. Borsa, [1996] O.J. No. 3819 (Gen. Div.) (Court awarded damages related to removal of a fence between properties and erection of a surveillance camera pointed at the defendant’s (plaintiff by counterclaim’s) yard); Tran v. Financial Debt Recovery Ltd., [2000] O.J. No. 4293 (S.C.J.) (reversed on other grounds, [2001] O.J. No. 4103 (Div. Ct.)) (collection agency making repeated collection calls to plaintiff’s workplace after being advised to only call home number; plaintiff recovered under defamation, intentional interference with economic interests, intentional infliction of emotional suffering, and invasion of privacy); Garrett v. Mikalachki, [2000] O.J. No. 1326 (S.C.J.) (dispute between neighbours leading to recovery under “intentional infliction of emotional distress, nuisance or invasion of privacy, and harassment”) and Rathmann v. Rudka, [2001] O.J. No. 1334 (S.C.J.) (harassment amounting to nuisance and invasion of privacy).

[7] Somwar at para. 23.

[8] [1995] 2 S.C.R. 1130.

[9] Quoted in Somwar at para 26, from Hill at para 92.

[10] [1988] 2 S.C.R. 417 (“Dyment”).

[11] Quoted in Somwar at para 24, from Dyment at para 22.

Privacy Privacy Law Law Torts Invasion of Privacy