Law Times

Law Times • January 24, 2011 FOCUS PAGE 11 breach of privacy and defama- tion after accessing private in- formation about her on an old home computer and publishing it online and in e-mails. The case, Nesbitt v. Neufeld, Nesbitt awards woman $40K for privacy breach A BY ROBERT TODD Law Times British Columbia doctor has been forced to pay his ex-wife $40,000 for with his shirt off and in- cludes a link to the YouTube video. Crawford said several of the postings "clearly point to the real author," which he found to be Nesbitt. Crawford also found Nes- saw businesswoman Wendy Neufeld go after damages from her ex-husband, Patrick Nes- bitt, a doctor whose practice was restricted. She also issued a counterclaim in an action initiated by Nesbitt but largely struck by the court. Nesbitt and Neufeld have a young child, and ongoing family court litigation initiated in 2006 preceded the civil lawsuit, ac- cording to a Nov. 15 judgment of B.C. Supreme Court Justice Robert Crawford. The court awarded Neufeld primary care, custody, and control of the child during the family court litiga- tion, and Nesbitt was entitled to supervised access. However, as problems over access began to creep in, Nesbitt took the issues outside of the courtroom. "Had Dr. Nesbitt kept his communications within the con- fines of the family court litiga- tion, there would not have been a concern," Crawford noted. Neufeld and her friends were targeted in several forums, including faxes to a Calgary bank; e-mails to a local Rotary Club; a YouTube video show- ing an interview with the child titled "Wendy Neuffeld [sic] – shirt stuff;" a web site titled "Wicked Wendy Neufeld;" a Facebook page called "Wendy Neufeld Support Group;" a letter to the Ministry of Child and Family Development; and a letter to the child's doctor. Nesbitt, who represented himself in the case, said if he did publish any of the mate- rials, it was to defend himself from what he considered false claims in the family court case. He said he posted the You- Tube video to respond to al- legations he had played the "sleeping beauty kissing game" with the child while he was shirtless during an access visit. The web site, which identi- fies "Spin Chic and Jiver" as its authors, calls Neufeld "very Dutch," "mean," "weird," and "sneaky." It also accuses her of splitting up marriages and of being involved with an Egyp- tian male prostitute prior to his deportation. In addition, it ref- erences the alleged incident in- volving Nesbitt with the child bitt to be the author of the Facebook page. It included several sentences reading, "Wendy's mother died a few months ago. Wendy's father died a few weeks ago. Her three tragic divorces. The af- fair with a married man. The suicide attempts. The boy- friend who got deported back to Egypt for being a male prostitute." Nesbitt admitted he ac- cessed Neufeld's personal correspondence from one of her old home computers. Several faxes sent to a bank in Calgary contained private e-mail correspondence be- tween Neufeld and one of her friends, identified as Ms. X. Neufeld said the altered e- mail was a compilation of a number of other e-mails be- tween her and Ms. X. Personal correspondence from Neufeld's home computer was also al- tered and used in the letter to the ministry. Nesbitt also admitted to 'I think if a case like this were brought in Ontario, you could just bring one based on the defamation,' says Gil Zvulony. obtaining personal information from Neufeld's home computer but said he used them because they allegedly show potentially harmful acts by Ms. X. Craw- ford called that explanation "as hollow an excuse as one can imagine," particularly as he had been in possession of the com- puter for several years prior. "Dr. Nesbitt's use of the private correspondence be- tween Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld's pri- vacy," Crawford wrote. "The communications were ex- tremely personal." The judge ruled it wasn't enough for Nesbitt to argue the private correspondence was on a computer Neufeld had given him. Noting the private corre- spondence was included in ad- ditional publications, he found Neufeld had a reasonable ex- pectation that her personal information and private cor- respondence wouldn't be dis- closed to third parties or posted online without her consent. The judge went on to award Neufeld $40,000 for breach of privacy under Brit- ish Columbia's privacy leg- islation and for defamation. Crawford limited the award to that amount because Neufeld said she had encoun- tered few personal or profes- sional repercussions due to the publications. Gil Zvulony of Toronto's Zvulony & Co. Professional Corp. points out that the pri- vacy law aspects of the ruling are unique to British Columbia and notes there's debate as to whether such a tort would exist in Ontario's common law. "I think if a case like this were brought in Ontario, you could just bring one based on the defamation," he says. "You wouldn't need to throw in the invasion-of-privacy tort." Nevertheless, the case high- lights the potential need for Ontario courts to offer guid- ance on what legal recourse exists for individuals when someone accesses their e-mail without permission. "When I see a case like that, we try to dress it up in different causes of action," says Zvulony. "It's sort of uncertain whether it's actu- ally an independent cause of action for invasion of privacy in Ontario." The Nesbitt case is certainly unusual and specific to the facts but is another example of the courts recognizing the poten- tial damage caused by defama- tory comments posted online and in social media forums, says Davis LLP's Vancouver- based privacy law group head Tamara Hunter. "It just increases the harm and therefore the potential dam- ages if somebody's putting infor- mation about another person on that kind of a medium." LT ELECTRONIC DOCUMENTS RECORDS MANAGEMENT, E-DISCOVERY AND TRIAL Editors: Bryan Finlay Q.C., Marie-Andrée Vermette and Michael Statham With contributions from: Caroline Abela, Stephen Doak, Paul D. Guy, Nikiforos Iatrou, Stephanie L. Turnham, David Vitale and John Wilkinson EFFECTIVELY NAVIGATE THE LEGAL CHALLENGES POSED BY ELECTRONIC DOCUMENTS Electronic data is modifying how lawyers interact, changing how information is collected and used, and transforming the courtrooms. This in-depth resource examines and analyzes the issues relating to electronic documents, including: • • • • Looseleaf • $210 Subscription updates invoiced as issued (1/yr) P/C 0283030000 • ISSN 1920-1737 Prices subject to change without notice, to applicable taxes and shipping & handling. • the sources and types of electronic documents records management policies the legal framework governing e-discovery in Canada the preservation, collection, processing, review and production of electronic documents the use of electronic evidence at trial This dynamic and burgeoning aspect of legal practice is clarified and explained with extensive reference to relevant Canadian and U.S. authorities. Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation LT0124 FEEDS LEGAL LegalFeeds_Cl_Jan_11.indd 1 A daily blog of visit www.lawtimesnews.com Canadian Legal News 1/6/11 11:44:49 AM canadianlaw yermag.com/ legalfeeds

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