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July 23, 2012

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PAGE 10 FOCUS PIs navigate new privacy tort Intrusion upon seclusion BY JUDY VAN RHIJN For Law Times T year threatens to restrict the in- vestigative processes available to private investigators. In order to avoid their new liability for non- commercial invasions of privacy, investigators and those who use them bear responsibility for strin- gently vetting their strategy before the investigation begins. In the world of privacy law, the he new tort of intru- sion upon seclusion ar- ticulated by the Court of Appeal earlier this Personal Information Protection and Electronic Documents Act has covered transgressions in the commercial arena while privacy matters involving the government and police fall under the Char- ter of Rights and Freedoms. But Jones v. Tsige has filled the gap that previously existed in relation to non-commercial purposes. lawyer, Alex Cam- eron of Fasken Martineau Du- Moulin LLP, notes the protection of privacy interests was traditionally a common law mat- ter under the torts of trespass, nui- sance, and harass- ment. "There is no doubt that intrusion on seclusion breaks new ground, Winnie Tsige's says. "The Court of Appeal was clear about that. In this case, one of the other torts would not apply. The case involved the unau- " he " thorized accessing of personal bank records of one bank em- ployee by a colleague over a pe- riod of several years. In ruling on the issue, appeal court Justice Robert Sharpe said: "In my view, it is appropriate for this court to 'Organizations shouldn't hire someone, give a general direc- tive, and then send them out in the field,' says Alex Cameron. of the common law to evolve to respond to the problem posed by the routine collection and aggre- gation of highly personal infor- mation that is readily accessible in electronic form." The new tort doesn't just deal confirm the exis- tence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society. It is within the capacity with electronic privacy, and pri- vate investigators are busy consid- ering which of their investigative methods might come under the ORGANIZE • ANALYZE • COLLABORATE Case Notebook – NEW – umbrella. "The full extent of the tort' says Cameron. "Lawyers, organi- zations, and private investigators are carefully watching how it will evolve from this starting point." At this stage, Jim Downs, man- aging director of private investiga- tive firm MKD International Inc., doesn't think the new law will af- fect his day-to-day operations. "Generally speaking, it all s reach is yet to be determined," damages. He stated that absent truly exceptional circumstances, the court should hold plaintiffs to the range he identified. Cameron agrees that most comes down to privacy laws," he says. "Those regulations have been established for quite some time. Traditionally, the civil courts have always dealt with that, but before Jones v. Tsige, if you got private information as part of a civil action, the maxi- mum damages would be $5,000. Now the civil courts have upped the ante on it a bit." Sharpe fixed a range of dam- ages of up to $20,000 and said he'd neither exclude nor encourage awards of aggravated and punitive of the information obtained by private investigators won't give rise to the commission of the tort because they'll have legal justification for the investiga- tion. However, he believes a practical result will be that em- ployers will reflect more care- fully on whether there' enough cause to conduct an in- vestigation. "As a general princi- ple, employers are entitled and sometimes obligated to con- duct investigations to maintain a safe working environment and appropriately manage the relationship, s strong of the tort don't per se suggest that stronger cause is required, but in light of the financial and reputational consequences of committing the tort, it will give people pause. "Technically, the elements " he says. Cameron believes that even where there's cause, there will " INCREASE YOUR PRODUCTIVITY AND EFFICIENCY WITHOUT SACRIFICING QUALITY With Case Notebook, a centralized, electronic case file, you and your team can enter and share key facts, insights, notes, documents, main characters, evidence, legal research, and more. ORGANIZE KEY CASE DOCUMENTS What if you could easily organize important case information? What if you could push a button on your case file and the document you were looking for appeared at the top? What if you could access your working case file from anywhere? You can with Case Notebook. ANALYZE CASE CONNECTIONS Are your case files a rainbow of sticky notes and highlighted excerpts? Do you struggle to effectively make connections in your case? Wouldn't it be helpful if you could see a bird's-eye view of your entire case? You can with Case Notebook. COLLABORATE WITH YOUR LITIGATION TEAM Do you find it difficult to utilize the work of your entire litigation team? Does each team member have a separate way of marking issues and facts they deem important? What if you could ensure your litigation team members would never work in isolation again? You can with Case Notebook. For a FREE demonstration, call 1-866-609-5811 or visit www.westlawcanada.com be greater scrutiny on the scope of the investigation and ensur- ing the information is reason- ably necessary. "As a best prac- tice, organizations should have a written agreement with the PI that includes provisions stat- ing that they must comply with privacy laws and only disclose the information to the organi- zation. It should also limit col- lection and have some controls over investigations. Vicarious liability for the actions of their agents can be avoided or miti- gated through a close working relationship and the manage- ment of what investigators do. In Downs' day-to-day op- erations, there's already a great " awareness of the restrictions imposed by privacy laws. "We are always extremely careful not to go down this road, not with the court. We would never, and nor should any PI, expose our- selves to a possible action for breaching privacy. as obtaining phone, banking, and credit records without due process as potential violations. "Out-of-facility video surveil- lance or information gleaned from third parties would also be deemed an invasion of privacy. They can't be utilized for offer- ing up as evidence but only as a good intelligence tool. Downs cites activities such " a family law situation where someone is trying to hide assets or a civil action where a party is trying to obtain discovery of all banking records. "You can force someone to disclose. You can even name the financial institu- tions. The lawyer can force the other side' He gives the example of " it can be a problem if lawyers inadvertently expose the infor- mation. "If caught, the damages may be up to $20,000." s hand." But he notes LT www.lawtimesnews.com July 23, 2012 • law Times

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