Law Times

PAGE 6 u EDITORIAL OBITER By Glenn Kauth Government's assent. While the legislation will crack down on criminal wrongdoers with stiffer penalties, a report from Postmedia last week indicated the government is considering changes to environmental rules that would prohibit activity causing an "adverse effect" on fish. Currently, Postmedia reported, the law targets activity causing "harmful altera- tion, disruption or destruction of fish habitat." The report stemmed from a leak to a retired fisheries biologist. But priorities misplaced I while Fisheries Minister Keith Ashfield said the government hasn't made any decisions on the issue, he didn't deny the biologist's claims. The passing of Bill C-10 into law also came the same week the government rushed to enact legislation preventing Air Canada work- ers from going on strike. In turn, the workers' fate will be subject to an arbitration process to select either the employer or the union's final offer. Unions, of course, have decried the move. It's ironic that the government would crack down on criminals while doing the opposite with environmental protection. But, of course, it has long been fairly forthright about its views on crime, the environment, and labour. The problem, however, is the effects of the changes. While preventing strikes may have some benefits to an employer like Air Canada, there's no evidence that the arbitration option will do anything to make the airline more competitive. At the same time, beyond the concerns about the societal implications of cracking down on crime, there's also the cost. Only recently, the parliamentary budget officer released a report on the cost of eliminating conditional sentences for certain crimes. The report, taking into account trial, corrections, and parole costs, concluded the federal govern- ment, despite its assertions that that portion of the law would be free, would face an $8-million burden. The provinces, meanwhile, would be on the hook for $137 million in added costs. That's because 4,500 offenders would no longer be eligible for conditional sentences and therefore would face the threat of jail time. While the courts would acquit some people at trial, many would end up in jail at a cost of $41,000 per offender rather than $2,600 under a conditional sentence. The report considered the fiscal impact of changing the law had the bill been in place in 2008- 09. So while the variables would change in future years, it's clear that the crime crackdown will be expensive, a fact reinforced by the Ontario govern- ment's recent calculation that Bill C-10 would cost it about $1 billion. The federal government, of course, is free to implement the mandate it received from Canadians. But during a time of fiscal pressures on all govern- ments, it's hard to imagine Canadians really want changes that leave society harsher, poorer, and less healthy and competitive. It's more likely they'd rather see a results-based approach to public policy. — Glenn Kauth f people were wondering what the federal government's priorities are, it left no doubt about them last week with its actions on crime, the environment, and labour relations. Last week, of course, the omnibus crime bill received Royal COMMENT March 19, 2012 • Law TiMes O n Jan. 18, the Court of Appeal for Ontario released its reasons in Jones v. Tsige confirming that there does in fact exist a tort of invasion of privacy based on intrusion upon seclusion. While this decision doesn't actual- ly relate to a family law issue, it has substan- tial implications in the family law context that lawyers and parties must now consider. Family law, more so than any other area of practice, is one where parties often go through each other's e-mails, banking rec- ords, and employment and medical docu- mentation without the other person's know- ledge. We hear from parties about how they logged onto their spouse's e-mail, checked the filing cabinet while the other person was away or found incriminating text messages on a phone. These are but a few examples of invasions upon seclusion that could now subject our clients to claims for damages. We need to be aware of this new reality. Writing for the court, Justice Robert Sharpe noted three factors that must be present for the tort to come into play. First, the defendant's actions must be intentional or reckless. Second, the defendant must have invaded, without lawful justification, Law Times LT Masthead.indd 1 the plaintiff 's private concerns. Third, a reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish. Notably, proof of actual Family Law damages isn't necessary for a party to succeed in a claim. Sharpe further noted that the invasion must be one of a ser- ious nature, involving issues related to a person's financial affairs, health records, sex- ual practices and orientation, employment, diary or private correspondence that, viewed objectively on a reasonable-person standard, would be highly offensive. On the issue of damages for such inva- tort to clients before they get themselves into more trouble. Producing e-mails from Marta Siemiarczuk home computers containing the so-called smoking gun may actually work to the detriment of our clients rather than to their benefit and, arguably, even sub- ject a lawyer to a claim for dam- ages depending how and when they used the information. Some of the factors that will influence the quantum of damages identified by Sharpe include the nature, incidence, sions, Sharpe set the upper range for non- pecuniary damages at $20,000. This, of course, doesn't preclude parties from seek- ing actual damages suffered over and above non-pecuniary ones. The facts of each case will determine the award; however, it would appear that most such cases would take place in the Small Claims Court. It's incumbent on us to explain this new and occasion of the wrongful act; the effect of the wrong on the plaintiff 's health, busi- ness, social or financial position; the distress; the conduct of the parties before and after the wrongful act; the annoyance or embar- rassment suffered; and, most importantly for our purposes, the relationship of the parties. An important driving factor with these issues is whether there was any expecta- tion of privacy to begin with. If the spouses continued to live together, was the infor- mation on a home or work computer? Was it in a locked room or a drawer? Was Thomson Reuters Canada Ltd. 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Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any war- ranty as to the accuracy, completeness or cur- rency of the contents of this publication and disclaims all liability in respect of the results of Law Times is printed on newsprint containing 25-30 per cent post- consumer recycled materials. Please recycle this newspaper. any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $175.00 + HST per year in Canada (HST Reg. #R121351134) and $265.00 for foreign addresses. Single copies are $4.00 Circulation www.lawtimesnews.com 2/7/12 3:32 PM it an otherwise producible document in court? Again, it all depends. Was there a request for an affidavit of documents, for example? If there wasn't, then it was argu- ably not producible even though it had the potential to be. Many of the examples of how this tort could come into play are minor. However, there are certainly cases of significant vio- lations such as using key log software on a spouse's computer without the other per- son's knowledge. This is one of the most egregious yet increasingly common inci- dents of invasion upon seclusion as using such software will invariably disclose to the other spouse all passwords for bank accounts, e-mail programs, and the like. Such cases, in my view, could certainly lead to more significant damage awards. Given the potential for substantial invasions of privacy, we need to tread carefully as this newly recognized tort evolves. LT Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@ nelligan.ca. inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corpo- rate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer ....................................416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ..............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Sandy Shutt ...... sandra.shutt@thomsonreuters.com New privacy tort a minefield for family law

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