November 3, 2022

By Jonathon Clark

We recently posted an article dealing with the high significance of personal privacy as it relates to social values of dignity, integrity and autonomy. This article focused on a criminal law case in which the complainant’s privacy rights were weighed against alleged privacy rights of a wrongdoer. In that context, we were pleased to see that the Court of Appeal used common sense to protect the rights of the complainant. This illustrates the deterrence value of criminal law. “Deterrence” means sending a message to society that this conduct is unacceptable, in the hopes of influencing the behaviour of potential future wrongdoers.

THE ISSUE

A different situation may apply in civil litigation unfortunately. In most claims for wrongs committed to you, your remedy is damages – in other words, money. Which leads to the question – how much money? Privacy is priceless, and how do we put a price on it?

THE STORY SO FAR

In theory, deterrence is a factor which comes into play in a portion of the common law dealing with private wrongs known as torts, though not necessarily as strongly as in the criminal law.  Back in a 2012 decision, Jones v Tsige, the Ontario Court of Appeal recognized that there was a narrow privacy tort they called “intrusion upon seclusion” for which the complainant could sue the wrongdoer. That case dealt with a bank employee wrongfully accessing client records for her own private curiosity. There was no evidence that the information was misused. In that context, intrusion upon seclusion was described as a “limited and specific tort” for cases where there was a “deliberate and significant invasion of highly personal information that would be highly offensive to a reasonable person”. The other thing that the Court of Appeal did in 2012 was award a very modest amount of damages. The Court strongly suggested that in most cases of intrusion upon seclusion, modest damages would be sufficient where there was not proof of actual harm, by which the Court appeared to mean economic harm. Despite the limited damages, the Court recognized that this was a harm that “cried out for a remedy”.

In the law of defamation, damages often remain low where the damage to reputation is it modest. However, in contrast with Jones v. Tsige and more recent intrusion upon seclusion cases, the courts have for decades, since Hill v. Church of Scientology of Toronto in 1995, recognized that there are a select number of cases where the damage to reputation is more substantial and these may attract nonpecuniary general damages they are not only generous, but may be higher than damages for physical injuries.

The courts have not shown a willingness to carve out any exception for more serious intrusion upon seclusion situations and award higher amounts.  As a result, it is seldom worthwhile for any an individual to bring such a lawsuit, although we do see some proceeding in small claims court. Unfortunately, a small claims court judgement seldom has much deterrent effect on the public at large. It does not send a message that will alter future behavior.

That might make you think that a class action would be an appropriate way to send the message that privacy is important. Where the intrusion upon seclusion affects a large number of individuals. the individual losses caused by the wrongdoer are small, but the totals may be in the millions of dollars. We have seen in many consumer product class actions that these awards send a message to wrongdoers. Utility companies changed how they charge late fees after Garland v. Consumers’ Gas Co ordered a substantial total amount of restitution to customers whose individual claims were very small.

So if intrusion upon seclusion is going to be limited to modest individual awards, you might think that a class action would be the way to send a message to deter future potential wrongdoers.

THE CASE

Other than making money for lawyers[1], that would have been the main intent of the case of Stewart v. Demme, which arose out of a large narcotics theft by a nurse employed at a hospital who, over a period of 10 years, stole thousands of opiate pills from a medication dispensing unit at the hospital. To obtain the pills, the nurse had to view patient information of thousands of patients, and falsely used that information to unlock the automatic dispensing unit. No patients suffered a loss of care. When the hospital discovered the thefts, it notified all of the affected patients. A class action was commenced. Initially a Superior Court motions judge certified the class action upon the basis of intrusion upon seclusion.

The motions judge believed that any infringement of privacy can be highly offensive without being otherwise harmful in the sense of leading to substantial damages. The offensiveness is based on the nature of the privacy interest, not on the amount of damages. This, in his view, “cried out for a remedy”.

The defendants appealed the certification to the Divisional Court.

The Divisional Court determined that the access to the health information was limited and fleeting and incidental to the medication theft. Because the nurse did not retain the information or share it with anyone else, the court says that “the medication theft cried out for a remedy” which was forthcoming in that the nurse was punished. The privacy intrusion did not, in their view, “cry out for a remedy”.

THE (UNFORTUNATE)  RESULT

As a result, no class action will proceed (unless the Court of Appeal overturns).

TAKEAWAYS

This is an example of a situation where the law of civil wrongs between private individuals could have advanced social values of privacy and acted as a deterrent against invasions of privacy. Even limited health information is very sensitive. We do not often come right out and say that we think a court is wrong, particularly a three-judge panel of the Divisional Court. However, this is a case in which we regret the result. Not because any of the individual plaintiffs have suffered a great loss, but because of the lost opportunity for society to express outrage, and encourage corrective justice.

Your privacy rights as an individual are important to you regardless of the amount of damages the law may allow.

IS THERE HOPE FOR THE FUTURE?

In addition, in some breach of privacy situations such as Jane Doe 72511 v. N.M., (revenge porn, posting sexually explicit video of ex-girlfriend on internet), the courts have shown willingness to award more realistic damages. Though if you were the victim, you might think the damages still too low and wonder why you did not receive something closer to what Casey Hill received in his defamation case.

WHAT WEILERS LAW CAN DO FOR YOU

For the law to continue to evolve, lawyers need to be prepared to take on hard cases, rather than brag about never losing a case – which is easy if you never argue a tough case.

One of the special things about Weilers Law is that we enjoy taking on challenging and novel arguments and fighting the good fight, whether or not we are always successful. We think we are successful more often than the odds might predict. We also think we have an excellent winning record, but sometimes we are just as proud of our losses that reflect a tough fight and an issue that was important to our client.

If you want lawyers to protect your rights who are not afraid of a tough fight, then Weilers Law may be the right lawyers for you.

[1] A poor joke, intended to anticipate the common argument that in many consumer class actions, the only people making “real money” are the lawyers, often receiving multi-million dollar fees, which compensate for many hours of work, usually on a contingency basis with no guarantee of any payment. If we accept that class actions have a deterrent affect on corporations, in our view those fees are just part of the cost of that deterrence.