Law Times

Law times • SEPTEMBER 15, 2008 FOCUS PAGE 13 Quebec court awards $125,000 for invasion of privacy BY JULIUS MELNITZER For Law Times n the spring of 2006, Jan Wong, then a Globe and Mail reporter, wrote a series about her experiences as a maid for low-income families. Wong knew whereof she spoke — sort of — and that was the problem from the perspective of Steven and Georgina Nitsopoulos and their son Angelo. Wong, it seems, had gained access to the family's private life by landing a job as a domestic cleaner with Toronto Maids. She later disclosed intimate details of their life in her articles. The Nitsopoulos family, I Markham residents, claim that Wong's conduct precipitated "significant embarrassment and mental distress" when her "unreasonable intrusion" and disclosure of "private facts and innuendo" compromised the family's dignity and security. The merits of the suit have grounds to conduct surveillance. Under Quebec law, surveil- • lance does not violate Charter privacy rights if the party con- ducting the surveillance: can rationally justify it and • has a rational justification for obtains it through reasonable means; • conducting the surveillance before deciding to conduct it; conducts the surveillance in • has taken steps to obtain the the least intrusive manner possible; and not yet been adjudicated. But if liability is decided in the family's favour, they'll doubt- lessly be relying on the Quebec Court of Appeal's February de- cision in Veilleux v. Compagnie d'assurance-vie Penncorp. as a springboard for their damage as- sessment — largely because the court awarded $125,000 in pu- nitive damages to the plaintiffs. "Veilleux represents the highest information through less in- trusive means. As well, the court will consider the extent to which surveillance conducted in public places has in- fringed the individual's dignity. After ruling that the surveil- lance was not admissible, the court ordered Penncorp to make the payments due to Veilleux from April 1999 to February 2003. The Court of Appeal up- held the award in March 2004. Meanwhile, in June 2003, Penncorp again initiated sur- veillance. After discovering the intrusion, Veilleux (and his son) sued for invasion of privacy in August 2005. In September 2006, the Superi- or Court ordered the insurer to pay $12,500 in moral damages (a head of damages unique to Quebec's Civil Code) and $25,000 in puni- tive damages for invasion of privacy and flaunting the judiciary. On appeal, the Court of Ap- medical examination on the ba- sis that it would shed no further light on the case. At this point, the court concluded, the insurer should have known that it could not continue its surveillance. Here, while hatred or malice was not in issue, Penncorp had acted on an "unhealthy economic interest" that amounted to ill will and attracted punitive damages. from $25,000 to $125,000. Still, it's not exactly clear how heavily Veilleux will weigh in Ontario. "I believe that the case will have a significant impact on privacy law damages beyond the province of Quebec," Young says. But Barbara McIsaac, of McCa- rthy Tétrault LLP's Ottawa office, is more cautious. She notes that By contrast, there is no legislated tort of privacy in Ontario peal increased the punitive dam- ages to $125,000. As the Court of Appeal saw it, and our courts haven't yet come to grips with a common law equivalent. Finally, by reinstituting the the May 2002 surveillance was an unlawful infringement on Veil- leux's privacy, and gave rise to com- pensation for "moral prejudice." Although the surveillance was not based on reasonable cause, it was not intentional and not done with the intent to cause harm. But the August 2002 surveil- lance was different. It occurred after the Superior Court refused to allow Penncorp to conduct a surveillance in June 2003, Penn- corp had taken the law into its own hands "in full knowledge of the consequences" by disre- garding the two decisions of the Superior Court condemning the earlier surveillance. In these circumstances, hav- ing regard to the seriousness of Penncorp's conduct — unlawful, repeated, and totally dismissive of the courts — and the insurer's financial means, it was appropri- ate to raise the punitive damages Quebec's Charter of Rights and Freedoms protects privacy rights. "By contrast, there is no leg- islated tort of privacy in Ontario and our courts haven't yet come to grips with a common law equiva- lent," she says. "If the Ontario courts do develop such a tort, the Veilleux principles and amounts awarded would have some prece- dential value, bearing in mind that the court was probably influenced by the unique fact that the defen- dant's behaviour came very close to contempt of court." LT Understand military law and operations from historical and contemporary Canadian perspectives award ever in Canada for punitive damages in a privacy case," says David Young of Lang Michener LLP's Toronto office, "and that is so even if you give the earlier cases a cost-of-living upgrade." The case originated in 1999, when André Veilleux, a 54-year- old garage owner, shut down his business due to illness and be- gan receiving monthly disability payments from Penncorp. When the insurer stopped making the payments, Veilleux sued. During the trial, Penncorp proffered surveillance evidence ob- tained in May and August 2002. 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