Law Times

Page 4 September 25, 2017 • Law timeS www.lawtimesnews.com NEWS NEWS NEWS Introduce statutory cause of action after breaches BY ALEX ROBINSON Law Times A s privacy is more at risk than ever with the explosion of informa- tion sharing, lawyers are calling for the provincial government to introduce a statu- tory cause of action for privacy breaches. Ontario does not have a statutory cause of action for vio- lations of privacy like five other provinces, leaving the issue to the common law. Lawyers say this has led to some uncertainty as to when there is a cause of action in such matters. "A properly studied and con- sidered statute in Ontario could provide a strong framework for the protection of privacy online. Right now, legally it's a Wild West and it's an area of social and commercial interaction that really demands some legal clarity," says Paul Champ, a law- yer with Champ & Associates. "Ontario could go from be- ing a laggard to a leader on pri- vacy in Canada." Champ says a statutory cause of action would provide greater certainty for individuals and businesses, and it would make it easier for lawyers to explain legal rights and responsibilities to clients. British Columbia, Saskatch- ewan, Manitoba, Quebec and Newfoundland all have statu- tory causes of action for vio- lations of privacy. Lawyers say these statutes provide some def- initional clarity of what is or is not a breach of privacy. It was not clear whether there was even a common law right of action for breach of privacy in Ontario until 2012, when the Court of Appeal confirmed that there was one in Jones v. Tsige. In that decision, the Court of Ap- peal recognized a new tort called "intrusion upon seclusion." But Champ says the contours of the new tort remain unclear. "The test for breach of pri- vacy and what a breach of pri- vacy would look like in different circumstances is still unknown and unlitigated," he says. He says that the statutory causes of action in other prov- inces spell out what is a breach of privacy in a fair amount of detail. Champ says some provinces' statutes define unauthorized use of likeness of a person for a commercial purpose as a breach of privacy, but it is unclear under Jones v. Tsige whether that would be a tort in Ontario. It is also not clear for lawyers whether certain defences that are listed in other provinces' statutory causes of action would work in a privacy case in On- tario, Champ says. "A good study of the issue in Ontario should be made and we should adopt much of the pro- visions of the other statutory causes of action in other prov- inces, and maybe even go a bit further to include other types of circumstances we might see in the online world," he says. Bonnie Freedman, counsel with Borden Ladner Gervais LLP, says Ontario's courts are trying to manage by looking at individual cases that are brought to them. "So we're not getting the whole picture," she says. "The law that's being pro- duced in the common law real- ly depends on which cases get before the judges and the facts in those particular cases. And what we have is a very signifi- cant public policy issue that ac- cordingly is not being addressed in a way that allows us to take into consideration all of the applicable considerations." Freedman says there are very significant questions that need to be addressed relating to pri- vacy breaches and what com- pensable damages are. She says a framework needs to be estab- lished to look at some of these questions. "I don't think that's going to happen through the common law, because the common law doesn't allow for this kind of systemic review of the issues," she says. "Courts are only permitted to look at the cases before them, and if a case doesn't get to them, then there's a hole there." The Supreme Court of Can- ada recently determined in Douez v. Facebook that a class action lawsuit could proceed in British Columbia against Fa- cebook for an alleged breach of privacy, as opposed to under the company's terms that such a suit would have to proceed in Cali- fornia. Three of the judges in the ruling referred to the privacy rights enshrined in the B.C. statute as "quasi-constitutional." Lawyers say it is unclear whether such a suit could be brought in Ontario. "It's easier to make that kind of a case where you're talk- ing about a statutory cause of action, which it was in B.C.," says Ravi Shukla, a partner with Foglers Rubinoff LLP. "If Ontario went in that dir- ection, the way B.C. has gone, then presumably we would benefit from that kind of an analysis — that whatever the statutory right was enshrined in legislation, it could be of a quasi-constitutional nature ver- sus a tort right." LT Bonnie Freedman says Ontario's courts are trying to manage by looking at individual cases that are brought to them. 9th Annual Information Privacy and Data Protection COURSE HIGHLIGHTS • Big Data and other Developments in the Public Sector and Elsewhere • General Data Protection Directive (GDPR) – Implications for Canadian Businesses • Privacy litigation cases– recent developments • Blockchain – The Promise and The Perils • OPC Compliance Priorities and Strategic Directions • Cyber Risk Management Guidance for Corporate Directors • Issues in Employee Privacy • CASL Update Toronto • Webinar | November 30, 2017 LEXPERT EXECUTIVE PROFESSIONAL DEVELOPMENT PROGRAM Register online at www.lexpert.ca/cpdcentre For questions and group rates, please contact: Toll-Free: 1-877-298-5868 • Direct: 416-609-5868 Fax: 416-609-5841 • Website: cpdcentre.ca • Email: lexpert.questions@thomsonreuters.com *Discount applies to in-class only DATE & LOCATION Toronto: November 30, 2017 Vantage Venues 150 King St West, 27th Floor, Toronto, ON M5H 1J9 COURSE LEADERS David Young, Principal, David Young Law Bill Hearn, Partner, Fogler, Rubinoff LLP USE PROMO CODE EARLYBIRD2017 & SAVE OVER $300* EARLY BIRD ENDS OCT. 25 Untitled-2 1 2017-09-20 10:05 AM The test for breach of privacy and what a breach of privacy would look like in different circumstances is still unknown and unlitigated. Paul Champ

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