Sunday, July 10, 2011

Alberta Court says claims for invasion of privacy must go to Commissioner first

In the recent case of Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412, the Alberta Court of Queen's Bench struck a portion of a plaintiff's statement of claim related to invasion of privacy, holding that the plaintiff must first complain to the Information and Privacy Commissioner before appearing in court:

Paragraph Nine

[43] It is alleged:

On or about June 2009 and again on or about August 24, 2009 Bernie Haggarty, Business Agent for the Defendant violated my rights with regards to the release of private medical information without first obtaining written consent.

[44] Bernie Haggarty has filed an Affidavit in response to this allegation denying that he improperly released any private medical information of the Plaintiff as alleged or at all, and showing the circumstances of his involvement in efforts to allow the Plaintiff’s employer to evaluate whether or not it accommodate the injury restrictions of Ms. Martin. He deposes that Ms. Martin was present when he sent the information and that he did so wholly with her consent.

[45] This claim appears to be one of invasion of privacy. In Bank of Montreal v. Cochrane, [2010] A.J. No. 1210, Kent, J. discussed claims for breach of privacy, paras. 6, 7 and 8:

6 The second arguable claim is for breach of privacy. BMO first says that if there is a statutory claim for breach of privacy both provincial and federal legislation require certain conditions to be met before a claim can be brought before a court: see Personal Information Protection Act,S.A. 2003, c.P-6.5 and Personal Information Protection and Electronics Documents Act, S.C. 2000, c.5, ss.14-15. These preconditions have not been met.

7 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.

8 I agree with BMO.

[46] In the case referenced by Justice Kent of Mohl v. University of British Columbia, the B.C. Court of Appeal noted at para. 13, “there is no common law claim for breach of privacy”.

[47] 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-6.5requires a claimant to proceed with his or her claim before the Commissioner appointed under that Act. If the Commissioner makes an Order under the Actagainst 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)

[48] Therefore, claims for a breach of privacy which have not first proceeded before the Commissioner cannot be heard by the Court. Further, the Affidavit evidence of Bernie Haggarty on this matter, uncontroverted by the Plaintiff, satisfies me that there is genuine issue to be tried. Paragraph 9 would be struck pursuant to Rule 3.68(a). However, on the uncontroverted evidence of Mr. Haggerty it is dismissed.

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