Statutory Privacy Torts

Legislative Framework and Interpretation

The provinces of British Columbia (BC), Saskatchewan (SK), Newfoundland and Labrador (NFLD), and  Manitoba (MB) all have statutory privacy torts. In BC, the statute precludes common law privacy torts.[1] Whereas, NFLD, MB, and SK do not preclude the common law privacy torts .[2] In both MB and NFLD, pleadings have been accepted containing the common law claim of intrusion upon seclusion.[3] Therefore, one could theoretically plead both the statutory tort and a common law tort of privacy in NLFD, SK, and MB.

The BC, SK, NFLD privacy torts has the same legislative wording:

It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.[4]

Unlike its common law cousin tort of intrusion upon seclusion the statutory privacy tort is actionable without proof of a damages. The courts have interpreted wilfully narrowly: “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person”.[5]

In MB the cause of action does not require a wilful violation, but the violation must be substantial and unreasonable:

2(1) A person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person.

2(2) An action for violation of privacy may be brought without proof of damage.[6]

Therefore, in MB someone could violate another’s privacy without any intention of doing so. Additionally, without “claim of right” has been interpreted as: “an honest belief in a state of facts which, if it existed, would be a legal justification or excuse”.[7] Notably an ‘honest belief’ is to be assessed on a subjective and objective determination by the court.[8]

Determination of damages in the statutory context is set by each act. However, each of the acts is substantially similar.[9] The SK act is the most generic of the three, and sets out the criteria as:

Considerations in determining whether there is a violation of privacy:

6(1) The nature and degree of privacy to which a person is entitled in any situation or in relation to any situation or matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others.

(2) Without limiting the generality of subsection (1) in determining whether any act, conduct or publication constitutes a violation of the privacy of a person, regard shall be given to:

(a) the nature, incidence and occasion of the act, conduct or publication;

(b) the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the person or his family or relatives;

(c) any relationship whether domestic or otherwise between the parties to the action; and

(d) the conduct of the person and of the defendant both before and after the act, conduct or publication, including any apology or offer or amends made by the defendant.

Notably the factors above set out that damages will be assessed on what privacy was reasonable in the circumstances as well as what is the relationship between the tortfeasor and the victim. Seemingly privacy, and thus its damages, is assessed on the relationship between the victim and the tortfeasor and/or the expectation of privacy in the circumstances.

Privacy Tort Origins

In the 1960s, Dean Prosser set out a four pronged privacy tort. This articulation has guided the current statutory tort of privacy in Canada as well as the development of the common law tort. Prosser articulated the four distinct torts as:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.[10]

In the statutory context, privacy is expressed as a singular catchall tort, whereas the common law is developing individual torts following Prosser’s articulation. In both the statutory context and the common law context the courts and/or legislature have updated and limited the applications of Prosser’s articulation.

However, Prosser’s articulation is often used as a starting point to depict or categorize different privacy breaches. In the statutory context (and likely to be in the common law) there has been opposition to adopting Prosser’s third tort: publicity which places the plaintiff in a false light in the public eye.[11]  The two different streams of privacy torts (statutory and common law) although related have differing limitations and thresholds. Therefore, depending on the plaintiff’s claim, one tort may be more advantageous than the other.

Statutory Tort Damages: Are the Damages Worth it?

The bulk of the jurisprudence of this tort is in the BC context. In BC there have been several cases that have been successful in this tort, however, no claims in NFLD, SK, or MB have led to damages.[12] The table below sets out the cases and the damages in the BC context:

Case Name	Damages on privacy Basis only	General	Special	Punitive	Total
Fillion v Fillion, 2011 BCSC 1593, [2011] BCJ No. 2230.	N	$50, $100	–	–	$150
Albayate v Bank of Montreal, 2015 BCSC 695, [2015] BCJ No. 858.	Y	$2,000	–	–	$2,000
BMP Global Distribution Inc. et al v Bank of Nova Scotia, 2005 BCSC 1091, [2005] BCJ No. 1662.	Y	$2,500	–	–	$2,500
Getejanc v Brentwood College Assn., 2001 BCSC 822, 2001 CarswellBC 1257.	Y	$2,500	–	–	$2,500
Wasserman v Hall, 2009 BCSC 1318 (CanLII), [2009] BCJ No. 1932.	Y	$3,500	–	–	$3,500
Heckert v 5470 Investments Ltd., 2008 BCSC 1298, [2008] BCJ No. 1854.	Y	$3,500	–	–	$3,500
Poirier v Wal-Mart Canada Corp., 2006 BCSC 1138, 2006 CarswellBC 1876.	Y	$15,000	–		$15,000
Griffin v Sullivan, 2008 BCSC 827, [2008] BCJ No. 1333.	Y	$25,000	–	–	$25,000
Watts v Klaemt, 2007 BCSC 662, [2007] BCJ No. 980.	Y	$30,000	$1,000	$5,000	$36,00
Lee v Jacobson, 1992 CarswellBC 1119, [1992] BCWLD 551.	Y	$30,000	$1,000	$5,000	$36,000
Malcolm v Fleming, 2000 CarswellBC 1316, [2000] B.C.W.L.D. 919.	Y	$15,000	–	$35,000	$50,00
LAM v JELI, 2008 BCSC 1147, [2008] BCJ No. 1612.	Y	$20,000	$5,000	$35,000	$60,000

Successful Statutory Privacy Cases in British Columbia

The range of damages is from $50-$60,000.[13]  The cases at the higher end, largely due to punitive damages, are cases that involve individuals being spied upon in their washrooms at their home[14] or their bedroom[15], or interception and recording of phone calls[16]. On the lower end are cases that involve personal information breaches: reading personal documents[17], copying personal documents[18], disclosing banking information[19], and setting up cameras to record a neighbour’s property.[20]

Notably, the courts are likely to give higher damages for privacy breaches of an interactive kind (watching people in their homes or listening to and recording conversations) and less so for informational breaches (viewing, copying, or disclosing personal information).

Conclusion

The statutory privacy tort thus far seems still underdeveloped and underused. Notably, there has been little to no examples of the more controversial legs of Prosser’s Tort: 2. Public disclosure of embarrassing private facts about the plaintiff; 3. Publicity which places the plaintiff in a false light in the public eye. Notably, however the statutory tort unlike its common law cousin of Intrusion upon seclusion does not have any set cap on damage. [21] In the future it will be interesting to see how the common law and statutory tort interact in regards to damages and threshold.

 

[1] Mohl v University of British Columbia, 2009 BCCA 249 at para 13, BCJ No. 1096.

[2] The Privacy Act, CCSM c P125, s 6.; The Privacy Act, RSS 1978, c P-24, s 7; Privacy Act, RSNL 1990, c P-22, s 7.

[3] Hynes v Western Regional Integrated Health Authority, 2014 NLTD(G) 137, [2014] N.J. No. 336; Grant v Winnipeg Regional Health Authority, 2015 MBCA 44, [2015] M.J. No. 116.

[4] Privacy Act, RSBC 1996, c 373, s 1(2); The Privacy Act, RSS 1978, c P-24 s 2; Privacy Act, RSNL 1990, c P-22 s 3(1) (emphasis added).

[5] Hollinsworth v BCTV, 1998 CanLII 6527 (BC CA) at para 29, [1999] 6 WWR 54.

[6] The Privacy Act, CCSM c P125, s 2(1)-2(2) (emphasis added).

[7] Hollinsworth v BCTV, 1998 CanLII 6527 (BC CA) at para 30, [1999] 6 WWR 54.

[8] Halsbury’s Laws of Canada (online), Access to Information and Privacy (2001 Reissue), “The Tort of Invasion of Privacy” (VII. 2.(1)(a)) at HAP-258 Requirements.

[9] Privacy Act, RSBC 1996, c 373, s 1(2)-(3); Privacy Act, RSNL 1990, c P-22, 3(2); Privacy Act, The Privacy Act, RSS 1978, c P-24, s 6(1)-(2); The Privacy Act, CCSM c P125, s 5.

[10] William L Prosser, “Privacy” (1960) 48:3 California Law Review 383 at 389.

[11] Parasiuk v Canadian Newspapers Co., 1988 CarswellMan 108 para 5, [1988] 2 W.W.R. 737,

[12] This analysis is based on a noting up each statue using LexisNexis, Westlaw, and CanlII; As the court noted recently in NFLD there is little to no jurisprudence of the act and only a few cases have even cited it, see: Hynes v Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD) at para 17. There have been some injunctive relief orders in MB in the family law context.

[13] Fillion v Fillion, 2011 BCSC 1593, [2011] BCJ No. 2230; L.A.M. v J.E.L.I., 2008 BCSC 1147, [2008] BCJ No. 1612.

[14] LAM v JELI, 2008 BCSC 1147, [2008] BCJ No. 1612; Malcolm v Fleming, 2000 CarswellBC 1316, [2000] BCWLD 919.

[15] Lee v Jacobson, 1992 CarswellBC 1119, [1992] BCWLD 551.

[16] Watts v Klaemt, 2007 BCSC 662, [2007] BCJ No. 980.

[17] Fillion v Fillion, 2011 BCSC 1593, [2011] BCJ No. 2230.

[18] Fillion v Fillion, 2011 BCSC 1593, [2011] BCJ No. 2230.

[19] Albayate v Bank of Montreal, 2015 BCSC 695, [2015] BCJ No. 858; BMP Global Distribution Inc. et al v Bank of Nova Scotia, 2005 BCSC 1091, [2005] BCJ No. 1662.

[20] Wasserman v Hall, 2009 BCSC 1318, [2009] BCJ No. 1932.

[21] Jones v Tsige, 2012 ONCA 32 at para 86, 108 OR (3d).