Privacy Common Law in Canada

A tort action exists in the U.S. for the invasion of privacy exists in only four situations:

1. Unreasonable intrusion
2. Appropriation of personality (an intentional economic tort)
3. Unreasonable publicity of private info
4. Unreasonable placing another in a false light

In addition to the U.S., Germany has recognized a tort for the invasion of privacy. The United Kingdom and Australia however, have not.

There is no such thing as a widespread, generally-recognized action called “Invasion of Privacy” in Canada, but it is covered by a number of different civil actions and legislation, and increasingly recognizes actions for appropriation of personality and inappropriate or unwanted media attention.

Contemplating a Separate Tort for Privacy

In the landmark case in Canada, Motherwell et al. v. Motherwell (1976), a mentally ill defendant harassed her family members through telephone and mail.

This harassment escalated to up to 60 calls a day, until they sued for invasion of privacy and nuisance seeking nominal damages and,

… an interim and a permanent injunction against the Defendant or anyone acting on her behalf enjoining her or anyone else acting on her behalf from contacting, telephoning, writing, visiting or in any other way communicating with the Plaintiffs or their children.

The court reviewed a form of nuisance,

unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.

But they then commented on its inadequacy in addressing privacy issues due to the emergence of newer communications technology. Specifically, they cited a difference where the receiver has no control over the incoming communications,

The rule of stare decisis operates, as it seems to me, to regulate the application of precedents to cases which can be said to fall within a category. When the circumstances of a case do not appear to bring it fairly within an established category, they may lie sufficiently within the concept of a principle that consideration of a new category is warranted…
I think that the interests of our developing jurisprudence would be better served by approaching invasion of privacy by abuse of the telephone system as a new category…

The court also pointed out that the frequency or volume of the communication can itself constitute harassment,

I have pointed out above that in my opinion there may be harassment even although the subject‑matter of the telephone calls would otherwise be agreeable in nature.

Motherwell did not clearly develop the creation of a new tort, despite these contemplations.

Although a claim for invasion of privacy was then dismissed in Capan v. Capan (1980), Hunter v. Southam Inc. (1984) acknowledged in the Supreme Court of Canada a “right to be let alone by other people” independant of “the notion of trespass.”

By 1995, MacKay v. Beulow awarded damages specifically for invasion of privacy in Ontario. Yet Somwar v. McDonald’s in 2006 stated,

In light of the trial decisions listed in this brief survey of Ontario jurisprudence, and the absence of any clear statement on the point by an Ontario appellate court, I conclude that it is not settled law in Ontario that there is no tort of invasion of privacy.

Still, the court cited advancements in technology that allowed the collection and dissmemination of personal information and said,

…the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff’s action cannot succeed on the basis that he has not pleaded a reasonable cause of action.

Most of the case law concerning privacy seems to focus on establishing what a ‘‘reasonable expectation of privacy’’ is. The courts appear to be increasingly recognizing its application, but this still varies across jurisdictions.

Melanie C. Samuels and Sara Gregory explain in Privacy issues in the workplace: Employer monitoring of employee technology use,

…no Canadian appellate level court has endorsed a common law tort of invasion of privacy, the existence of such a tort has not been denied.

Rapidly Developing Areas

Because the application of privacy law is so rapidly developing, it is useful to list some sources that monitor and report developments.

There is considerable discussion of the privacy applications in text books for s. 7 of the Charter, “protection of life and liberty,” and s. 8 for “unreasonable search,” including business documents, border searches, and emergency powers.

But publications as recent as 2004 still have not addressed Internet search engines, and issue that will definitely come up in the future.

The Office of the Privacy Commissioner of Canada provides these legislative resources:

• The Privacy Act
• The Personal Information Protection and Electronic Documents Act (PIPEDA)
• PIPEDA Review Discussion Document, Protecting Privacy in an Intrusive World (July 18, 2006)
• Substantially Similar Provincial Legislation

And more legislative resources can be found here.

The Canadian Privacy Law Blog provides an excellent resource for ongoing developments, as does Michael Geist, who circulates a monthly publication, the Canadian Privacy Law Review.

International Concerns

Patricia J. Wilson and Michael Fekete dedicate a chapter to privacy law in Osler, Hoskin & Harcourt LLP’s Doing Business in Canada, which includes concerns over the USA PATRIOT Act.

In response to these concerns, British Columbia ammended its Freedom of Information and Protection of Privacy Act (FOIPPA). Both the federal and provincial privacy commissioners want to enhance protections against sharing of personal information with the U.S.

And this challenge, of protecting Canadian personal data from foreign nations, might prove the most difficult privacy issue of them all.