Monday, June 1, 2015

Intrusion Upon Seclusion in Saskatchewan by Greg

This spring, I had the opportunity to present on civil liability for privacy breaches at the Law Society of Saskatchewan's update on privacy and access law. And I'll follow up by expanding on a few of the noteworthy points for those interested in privacy in Saskatchewan.

To start with, let's take a look at how the tort of intrusion upon seclusion (discussed by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32) may - or may not - apply in Saskatchewan.

The relationship between provincial privacy statutes such as the Privacy Act, RSS 1978, c P-24 (“Privacy Act”) and the common law related to privacy has been considered a number of times in British Columbia, where courts have regularly concluded that the statutory tort of violation of privacy precludes the development of any parallel common-law torts. See e.g. Mohl v. University of British Columbia, 2009 BCCA 249 at para. 13. This analysis has been repeated even as the tort of intrusion upon seclusion has developed in provinces which lack a statutory tort: see Ari v. Insurance Corporation of British Columbia, 2013 BCSC 1308 at para. 64-65, and Foote v. Canada (Attorney General), 2015 BCSC 849 at para. 116.

However, the British Columbia reasoning was rejected at least at the pleadings stage in Hynes v. Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD) ("Hynes") at para. 25. In Hynes, Goodridge J. held that since the Privacy Act, R.S.N.L. 1990, c. P-22 contained an explicit declaration that it operated without derogating from a right of action or remedy otherwise available, it was at least arguable that the tort of intrusion upon seclusion could operate concurrently with the tort of violation of privacy.

The Privacy Act contains a similar provision: section 8(1). As a result, it is possible that both torts may be available to plaintiffs in Saskatchewan.

In most circumstances, there will be little reason to prefer the more limited tort of intrusion upon seclusion to the slightly broader (if not yet well-defined) tort of breach of privacy. However, it may offer:

  • a means to avoid the explicit statutory defences present under the Privacy Act, though courts will likely consider those defences in defining the contours of intrusion upon seclusion in any event; and
  • perhaps more significantly, the ability to pursue a privacy-related claim through small claims court, which is precluded by the Privacy Act's requirement that an action for violation of privacy be brought in the Court of Queen's Bench.

It remains to be seen whether the reasoning in Hynes will be followed in Saskatchewan, or indeed applied at the trial stage in Newfoundland and Labrador. However, it offers at least some prospect that the options available to an individual facing a breach of privacy have been expanded.

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