Can we sue for privacy invasion?
David Canton – For the London Free Press – January 25, 2007
Some provinces have statutes creating a category for breach of duty, or tort, in relation to invasion of privacy. Recent Ontario cases suggest there may be a similar right in this province.
British Columbia legislation is general in nature, allowing a person to sue for a violation of that amount of privacy deemed “reasonable,” given the circumstances.
Manitoba and Saskatchewan acts, on the other hand, list examples of privacy invasion, such as surveillance, phone-tapping and use of the innocent party’s personal documents without consent.
These acts list remedies, such as damages, an injunction or the return of any documents that had come into the defendant’s possession as a result of the breach.
Justice David Stinson of the Ontario Superior Court of Justice, in Somwar vs. McDonald’s Restaurants Canada Ltd., said, “With advancements in
technology, personal data of an individual can now be collected, accessed (properly and improperly) and disseminated more easily than ever before . . .
“The traditional torts such as nuisance, trespass and harassment may not provide adequate protection against infringement of an individual’s privacy interests.”
He also stated that “the time has come to recognize invasion of privacy as a tort in its own right.”
In Somwar, the plaintiff was a manager seeking promotion at one of the defendant’s restaurants. He claimed his privacy was invaded when the defendant conducted credit checks on him without his permission.
The defendant brought a motion asking the court to dismiss the claim. The court did not; the case has since been settled.
The second case is Shred-Tech Corp. vs. Viveen, from the same court. The plaintiff sued numerous former employees for violating a non-competition agreement.
The key evidence behind the law suit was information obtained from a private investigator including the defendantsâ calling records and secret videotapes of the defendantsâ new places of business,
The defendantsâ brought a motion, to be able to use this material despite procedural rules against it, to launch a complaint under the federal Personal Information Protection and Electronic Documents Act.
In siding with the defendants, Justice D.J. Gordon agreed with the comments made by Stinson, adding, âThere is some debate as to whether there now exists a tort of invasion of privacy. I am of the view recognition of such a tort in law is the logical result of the acknowledgment of privacy rights.â
What do these two decisions mean?
The question before each justice was not whether the tort of invasion of privacy existed or not, so their pronouncements on the issue are not binding precedent.
Secondly, these decisions come from trial courts. If the tort of invasion of privacy is to become entrenched in Ontario, it will have to come by a decision of an appellate court.
Thirdly, although these cases acknowledge the potential existence of a tort for invasion of privacy, they do nothing to outline the scope of liability. How far should such protections extend?
These issues need to be sorted out before it can be stated that a common law tort of invasion of privacy exists. It appears that, given the right facts, it is only a matter of time.
Tell me what you think about this… Breach of privacy or not?! Man and woman meet on internet, meet to have sex, this happens twice. Woman becomes obsessive and won’t leave alone. He realizes she’s a little off and tells her to leave him alone. 6 months later he learns woman became pregnant with twins and they might be his. Woman does not know anything about man but has his cell phone number. She knows he has sprint/nextel service. She works in a mall and she has a person she knows that works at the sprint/nextel kiosk look up his consumer record and give her his social security number. She then used this to pursue child support for the twins. The DNA proved they are his children 3 months ago. He pays child support and wants to see his baby girls. He has worked with the mom cordially and they’ve been able to agree on visitation. The mom stalks him on the internet, his cell phone, text messages, and wants desperatly for him to marry her so they can be the happy family she has envisioned. He doesn’t even tell her where he works for fear she will come in there and cause trouble for him at work. Tonight she told him her child support case worker told her where he works. He wants to be a part of his kids lives and he’s trying to set into motion the right things now that he knows they are his, but my gosh – is our personal social security number and confidential employment information not in any way protected anymore????
Comment by Friend from the South — May 31, 2007 @ 11:50 pm