The Limits of the Private:
Invasion of Privacy As A Common-Law Tort
Presented BY: Kelly Nicholson
Outline of Presentation
• Brief summary of paper, followed by
analysis of the current case law:
• Somwar v. McDonald’s Restaurants of
Canada Limited
• R. v. Patrick
• Colwell v. Cornerstone Properties Inc.
• MacDonnell v. Halifax Herald Ltd.
Early conceptions of privacy
as a legal concept:
“The poorest man may in his cottage bid
defiance to all the forces of the Crown. It
may be frail – its roof may shake, the wind
may blow through it, the storm may enter,
the rain may enter – but the King of
England cannot enter!”
William Pitt the Elder, March 1763
Privacy as Legal Concept
• The earliest conceptions of privacy tied it to
property: essentially a territorial right.
• The common-law protected this right
through tort actions associated with
property: trespass, nuisance, conversion,
breach of bailment
• “Invasion of privacy” conflated with
“invasion of private property”
Privacy as Legal Concept
• In the modern era, the possible meanings
attached to the term “privacy” have
multiplied
• Different kinds of privacy legislation and
different courts have all taken a variety of
approaches to the term
• The result: “privacy” no longer has a clear
meaning in the legal context
Personal Information Legislation
• FIPPA and PIPA and their cousins in other
jurisdictions ostensibly address privacy
• They do not actually define “privacy”
• Their actual subject matter is “personal
information” and the extent to which public
and private-sector bodies may create and
control the dissemination of records
containing “personal information”
“Privacy” and the Statutory Torts
• The meaning of “privacy” is not clarified
by the statutes that make invasion of
privacy a tort
• British Columbia, Saskatchewan,
Manitoba, and Newfoundland &
Labrador all have similar legislation of
this kind
“Privacy” and the Statutory Torts
• The statutes make it “a tort, actionable without
proof of damage, for a person, wilfully and without
a claim of right, to violate the privacy of another”
• The term “privacy” not actually defined
• The scope of the right is delimited: “the nature
and degree of privacy to which a person is
entitled…is that which is reasonable in the
circumstances, giving due regard to the lawful
interests of others”
“Privacy” and the Statutory Torts
• “Privacy” in the jurisdictions where its
invasion is a statutory tort is therefore
context-specific
• The scope of the right must be decided
by each court on a case-by-case basis
• The scope therefore varies and is not
easily defined
“Privacy” in the Common-Law
• Judges considering privacy rights in a civil context
have made numerous attempts to define the term
“privacy”
• The endeavour features little precision and less
consensus
• There is no ruling case on this point: in effect,
the precise nature of the privacy rights of an
individual depend on the circumstances of each
particular case (as suggested in Roth v. Roth)
The Status of “Invasion of Privacy”
as a Common-Law Tort
• The absence of consensus on the meaning
of “privacy” has made the project of
establishing “invasion of privacy” as a
common-law tort problematic
• The traditional view is that privacy rights
are subsumed within the alreadyestablished torts: nuisance, trespass,
defamation, breach of confidence
The Status of “Invasion of Privacy”
• The House of Lords recently reaffirmed this
view in Secretary of State for the Home
Department v. Wainwright:
“There is no tort of invasion of privacy.
Instead there are torts protecting a
person’s interests in the privacy of his body,
his home, and his personal property”
The Status of “Invasion of Privacy”
• In Canada, the matter remains unsettled
• Some cases have made small damages
awards for various intrusions upon privacy
• Some cases have denied the existence of
the tort of invasion of privacy
• Some cases have admitted to the possibility
of such a tort, but decided the matter on
different grounds
Somwar v. Mcdonald’s Restaurants
• The plaintiff, a restaurant manager, discovered
that his employer had performed a credit check on
him without his permission or consent
• He sued, alleging that his privacy had been
“illegally invaded”
• The defendant moved to strike the claim on the
basis that it disclosed no reasonable cause of
action
Somwar
• The Court had to decide whether it was
“plain and obvious” that Somwar could
not succeed at trial
• Stinson J. surveyed the case law, found
some support for invasion of privacy as
an intentional tort
• Concluded that it is not settled law
Somwar
• To answer question whether Somwar’s
claim was a “plain and obvious” failure,
Stinson J. asked two further questions:
– First, whether there was a privacy right at
all in Canada
– Second, whether it was worthy of
protection.
Somwar
• The Court relied upon Charter jurisprudence
(Hunter v. Southam, R. v. Dyment, Hill v. Church
of Scientology of Toronto) for recognition of a
right to privacy
• The Court also relied upon Cory J. in Hill for the
proposition that the common-law should be in
harmony with Charter jurisprudence
• Stinson J. therefore concluded that the time was
ripe for recognition of the tort of invasion of
privacy, and dismissed the defendant’s motion
Somwar
• Somwar stands as a strong
endorsement for recognition of invasion
of privacy as a common-law tort
• But it is not authority for the notion that
such a tort exists
• Stinson J.’s comments on this score
were obiter dicta
R. v. Patrick
• Post-Somwar, judicial enthusiasm for
tortious invasion of privacy, and for
expansion of privacy rights in general,
is once again unclear
• Stinson J.’s premise that Charter
jurisprudence encourages recognition of
the tort is probably undermined by the
recent case of R. v. Patrick
R. v. Patrick
• Patrick was under suspicion of operating an
ecstasy lab out of his Calgary home
• The police seized bags of garbage that had
been placed by Patrick for collection at the
rear of his property (within the property line)
• Evidence of criminal activity in the contents of
the bags supported a warrant; Patrick was
arrested and charged
R. v. Patrick
• The trial judge held that seizure of the bags
was lawful under Section 8 of the Charter ;
Patrick was convicted
• A majority of the Court of Appeal upheld the
convictions
• Patrick appealed to the SCC
• Binnie J., writing for the majority, dismissed
the appeal (concurring reasons by Abella J.)
R. v. Patrick
• Binnie J. found that Patrick had a subjective
privacy interest in the contents of the garbage
bags
• Objectively speaking, however, this was
unreasonable in the circumstances
• Patrick had effectively abandoned the bags, doing
everything required to rid himself of them
• His conduct was therefore inconsistent with the
assertion of a constitutionally protected privacy
interest
R. v. Patrick
• The analysis is not above criticism
• The focus on the objects seized (the bags),
rather than the location of the seizure
(Patrick’s yard), injures the concept of
“territorial” privacy
• The reasoning begs the question, How does
someone need to act in order to continue to
assert a valid privacy interest?
Colwell v. Cornerstone
Properties Inc.
• Colwell had been employed by Cornerstone as the
manager of a commercial mall for some 7.5 years
• Her supervisor covertly installed a video camera in
the ceiling of her office, which allowed him to
watch her in “real time” on his computer monitor
• When Colwell discovered the surveillance, she
resigned her employment and sued the company,
alleging constructive dismissal and invasion of
privacy
Colwell
• The defendant was unable to provide a
satisfactory explanation for the supervisor’s
surveillance of the plaintiff
• Little J. said that there had been an “invasion
of privacy”, and referred to the existence of
“a possible tort of invasion of privacy”
• Chose to decide the case on the basis of
constructive dismissal instead
Colwell
• The Court found that there had been a
breach of trust by the employer that went to
the root of the employment contract
• Damages were assessed on the basis of
calculation of a reasonable notice period, not
in accordance with tort principles
• The Court preferred a novel analysis of
constructive dismissal to confirmation of a
tort of invasion of privacy
MacDonnell v. Halifax Herald Ltd.
• A case exemplary of judicial confusion regarding
“invasion of privacy”
• A former press secretary for the federal Minister
of Natural Resources, MacDonnell accidentally
recorded a long conversation with the Minister
• Later left the digital recorder in the ladies’
washroom at the Parliamentary Press Gallery,
where it was retrieved by a friend of a Halifax
Herald reporter
MacDonnell
• Mr. Mahar, the reporter, indicated that the
contents of the recording would be made
public
• Ms. MacDonnell applied for an injunction to
prevent the publication, relying upon
conversion, breach of bailment, and invasion
of privacy
• The application was denied on all grounds
MacDonnell
• The Court referred to invasion of privacy as an
“embryonic tort” but declined to confirm its status
• Found that the conversation was not clothed in
privacy, because a department driver participated
in it
• At the same time, found that the privacy of the
conversation had been invaded by the fact of its
having been recorded, an apparent contradiction
that is not addressed by the Court
Current Status of
“Invasion of Privacy”
• In common-law jurisdictions, the status of the would-
be tort remains uncertain
• Somwar a recent high-water mark for recognition of
the tort, but not authoritative
• Post-Somwar, Charter jurisprudence has arguably
eroded the strength of the privacy interest
• Judicial treatment of the concept of invasion of privacy
remains cautious and uneven, displaying a traditional
unwillingness to engage the concept of privacy in a
coherent manner
Principles of the “Tort” of
Invasion of Privacy
• Somwar and the case law cited
therein, and the various statutes,
suggest a possible threshold “test” for
the would-be tort:
1. Wilful or intentional prying or
intrusion;
2. Into something considered private.
Principles of the “Tort”
• Defences specific to invasion of
privacy are suggested by the case law,
including:
1. Consent
2. Claim of right (conduct incident to
some lawful right)
3. Extent of privacy claimed not
reasonable in the circumstances
Principles of the “Tort”
• Damages are so far minimal (as in ICBC
v. Somosh)
• What is recoverable should arguably
depend upon the actual loss incurred
• Damages for loss of reputation, injured
feelings, emotional distress may be
available in appropriate cases
• Injunctive remedies applicable as well
Thank you