Friday, May 6, 2011

Privacy Act Case Developments by Greg

Two recent Saskatchewan court decisions shed some light on the relationship between the Privacy Act and the obligations of a government institution under FOIP or a local authority under LAFOIP.

In Bigstone v. St. Pierre, 2011 SKCA 34, a panel of the Court of Appeal considered whether the plaintiff had pleaded a reasonable cause of action under the Privacy Act. The plaintiff alleged that the individual defendant used the defendant government institution's records to collect evidence in another matter against the plaintiff; the defendants applied to strike out the plaintiff's claim, arguing in chambers and on appeal that this allegation was insufficient to support a claim for breach of privacy since it did not involve confidential information or reveal intimate details of the plaintiff's lifestyle and personal choices.

Writing for the majority, Ottenbreit J.A. set out the following principles at para. 34:

At this stage of the development of the jurisprudence respecting the Act, a claim must contain allegations so that, at a minimum, the following is clear:

1. the action is pursuant to the Act;

2. there is an act or actions which are claimed to be a violation of privacy which comes within the arguable scope of the Act;

3. the privacy is that of a person;

4. the type of privacy interest violated is generally identifiable; and

5. the violation is wilful and without claim of right.

Ottenbreit J.A. held that there was no error in the chambers judge's conclusion that these minimum requirements were met, and thus dismissed the appeal (Jackson J.A. concurring).

Smith J.A. dissented, holding as follows at para. 56-57 as to her view of the purpose of the Privacy Act:

I cannot agree with the wide ambit my colleagues would give to The Privacy Act, and, in particular, to the concept of informational privacy established and protected by that statute. This interpretation of the Act appears to be based on an interpretation of s. 3 of the Act to the effect that that section not only makes actionable, potentially, the conduct specifically and narrowly described in that section, but also expands the notion of “the nature and degree of privacy to which a person is entitled” for the purpose of s. 6 of the Act, making a person entitled to privacy in relation to all the information that might be gleaned from such activities, no matter how it is obtained. Thus, for example, the assumption seems to be that because “surveillance” of a person is made potentially actionable by s. 3(a), and it is a person’s activities that are discoverable by means of surveillance, a person therefore has a legislatively protected privy interest in any information about his activities, however obtained and that any investigation or inquiry into a person’s conduct is therefore potentially actionable (i.e., absent consent, lawful excuse, etc.).

I do not agree that such an extraordinary expansion of the notion of legally protected privacy interest is the purpose or intent of this section, or of the Act in general. It is not the intention of the Act to make merely investigating, seeking to find out, accessing, or gathering information about a person an actionable violation of that person’s privacy, in the absence of the conduct described in s. 3, or other unusual circumstances. Certainly s. 3 is not itself this broad. Such an interpretation would subject all authors of an unauthorized biography to liability.

Smith J.A. then held at para. 64 that the statement of claim did not set out the nature of the information alleged to have been acquired, nor any circumstances which could establish that the plaintiff was entitled to any privacy in the information in question. Accordingly, Smith J.A. would have allowed the appeal.

The difference in views as to the nature of the Privacy Act set out in Bigstone will almost certainly require some further resolution. As the case involved only an application to strike a pleading, the majority's conclusion only leaves open the possiblity that the skeletal facts alleged were sufficient to justify a trial; however, it is possible that Smith J.A.'s conclusions as to the scope of the statutory tort of breach of privacy might be accepted once a matter is ultimately tried. In any event, Bigstone offers a reminder that a government institution's handling of personal information may have consequences in tort as well as under privacy legislation.

In Reeves v. Saskatoon (City), 2011 SKQB 168, the plaintiff raised an issue as to the release of her personal information by the City (her employer) to the Canada Revenue Agency. The plaintiff complained first to the City, then to the Office of the Information and Privacy Commissioner. The matter was the subject of a report by Commissioner Dickson in May 2010; the plaintiff then issued a claim in February 2011. The defendants applied to have the plaintiff's claim struck or dismissed on several grounds, including that it was barred by a limitation period.

Konkin J. accepted the defendants' argument that the claim was limitation-barred. He noted at para. 8 that the plaintiff's claim specifically noted that she was immediately concerned about the breach of privacy, and concluded at para. 10-11 that the claim was thus discoverable in 2005. The plaintiff's claim was thus out of time under the one-year and two-year limitation periods applicable to the respective defendants.

Reeves serves as an important caution for individuals with a privacy concern, as the time which elapses while a complaint is raised with a local authority or government institution and then with the Office of the Information and Privacy Commissioner may affect the availability of a tort claim. Individuals should thus consider whether they may wish to bring an action related to a suspected or actual privacy breach, and if necessary take action to preserve their rights even while a review may be in progress.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please feel free to contact us at if you require legal advice related to an actual or potential claim under the Privacy Act.

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