Law Times

Law Times • July 22, 2013 Page 3 NEWS Privacy tort no sure thing in other provinces celebrity privacy, media law, employment law, family law, and property law," he says. "If I was a private investigator involved in any dispute, I'd want to know the case backward and forward." Du Vernet also points out that the new tort doesn't require BY Julius Melnitzer For Law Times T he common law tort of invasion of privacy found its way to Ontario in 2012, but its acceptance elsewhere in Canada is hardly a sure thing. That became clear recently when the British Columbia Supreme Court held that there was no such cause of action in that jurisdiction. The judgment in Demcak v. Vo stands in stark contrast to the ruling of the Ontario Court of Appeal in Jones v. Tsige last year. In Jones, the Ontario Court of Appeal determined that adoption of the tort of intrusion upon seclusion was necessary to reflect the technological changes of modern times. Subsequently, the Nova Scotia Supreme Court adopted Jones in Trout Point Lodge Ltd. v. Handshoe. Demcak arose when municipal officials and a property management company inspected the property of a residential tenant following a complaint about the use of it. The plaintiffs alleged the defendants had gained forced entry into and inspected a number of recreational vehicles that were the subject of the complaint. But Justice Kenneth Ball held that B.C. jurisprudence didn't support the existence of a common law tort of invasion of privacy. If the plaintiff had any remedy, it was under the statutory tort for invasion of privacy under the province's Privacy Act. Here, however, the statutory remedy wasn't available because the defendants had a lawful right to enter the property. It's arguable, however, that much as hard cases make bad law, so do unrepresented litigants. "The plaintiff in Demcak was a self-represented litigant whose original statement of claim had been struck by masters on two occasions," says Roland Hung of McCarthy Tétrault LLP's Calgary office. "The plaintiff did not specifically put forward invasion of privacy, the court's decision was very short, and it's unlikely that legal doctrine was robustly argued." Still, Hung adds that it may very well have been the existence of a statutory cause of action that precluded the court from fully considering the common law tort. British Columbia is one of four provinces that have such a statutory tort. "These statutory torts are substantially similar to the Ontario common law tort," says Hung. "It may be that the court in Jones, where the facts were quite grotesque, recognized a common law tort simply to give the plaintiff a remedy rather than allowing the defendant to get off scot-free." Jones arose when Winnie Tsige, a bank employee, accessed the personal banking records of a colleague, Sandra Jones, on 174 occasions over four years. Tsige had been in a relationship with Jones' former husband and was The existence of a statutory cause of action in some provinces may preclude consideration of a common law tort, says Roland Hung. proof of actual economic loss. And he's not worrying about the limit of $20,000 the court suggested for symbolic or moral damages in all but the most exceptional cases. "Jurisprudence, like that relating to punitive damages, has proven that caps can quickly become history," he says. As well, Du Vernet says Jones could prompt class actions in the telemarketing arena and in other situations where organizations collect or use information in a manner that amounts to an invasion of privacy. LT CANADIAN LAW LIST 2013 in a financial dispute with him. She acknowledged having accessed Jones' records to ascertain whether the husband had been paying child support. "Jones seems very fact-specific and the scope of the tort as recognized by the Court of Appeal seems quite narrow, so the substantive differences between the statutory torts and the common law tort may not be all that different," Hung says. Indeed, the Ontario court didn't establish the broad tort of invasion of privacy but limited the cause of action to intrusion upon seclusion and specifically confined its decision to the particular facts of the case before it. But Christopher Du Vernet of Du Vernet Stewart, who with colleague Carlin McGoogan represented the plaintiff, says the case will have a wide-ranging impact. "The decision will have an impact on the law relating to YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; February each year L88804-590 L88804-590 Prices subject to change without notice, to applicable taxes and shipping & handling. related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. 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