CANADA’S NEW TORT OF PRIVACY AND ITS
IMPACT ON YOUR FRAUD INVESTIGATION
In a landmark decision earlier this year, the Ontario Court of Appeal recognized a new
tort for breach of a right to privacy, and in the process has opened up a Pandora’s Box of
potential liability for fraud examiners. Learn how to navigate the waters of this new
Canadian tort and still achieve your investigative goals.
DAVID B. DEBENHAM, CFE, CMA
Partner
McMillan LLP
Ottawa, Ontario
Canada
David Debenham has been a practicing, commercial litigation trial lawyer for the past 23
years. He is a partner in the McMillan law firm’s Ottawa office.
David’s fraud practice eventually inspired him to become a Certified Fraud Examiner,
and acquire his Diploma in Investigative and Forensic Accounting from the Rotman Business
School’s Graduate Program at the University of Toronto (he was Valedictorian of his class).
He has published a text directed at fraud investigators and expert witnesses called The Law of
Fraud and the Forensic Investigator, along with the leading articles in the United States and
Canada on the subject of detecting and reporting fraud in a law firm. He has spoken at ACFE
chapter meetings in Ottawa, Toronto, and Saskatoon, as well as the ACFE national
convention.
“Association of Certified Fraud Examiners,” “Certified Fraud Examiner,” “CFE,” “ACFE,” and the
ACFE Logo are trademarks owned by the Association of Certified Fraud Examiners, Inc. The contents of
this paper may not be transmitted, re-published, modified, reproduced, distributed, copied, or sold without
the prior consent of the author.
©2012
CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
A recent headline declared: “Ontario Employers Take
Note: New Privacy Tort Created”1 One wonders why that
headline did not similarly warn investigators of this new
privacy tort, since an investigator will not be able to use the
fact that they were working for another as a defence to a
claim for invasion of privacy. The purpose of this article is
to instruct investigators as to the parameters of this form of
liability so that internal protocols can be adjusted
accordingly.
Understanding the Influence of U.S. Law
The U.S. Bill of Rights never refers to the concept of
privacy, and yet privacy is said to be a constitutionally
enshrined right south of our border. U.S. courts have
interpreted the various enumerated rights in the Bill of
Rights as specific examples of an overall concept of
privacy, such that one speaks of the U.S. Constitution
projecting a penumbra of privacy rights. Using that
approach, U.S. tort law conjoined various established
English torts under the rubric of a tort of privacy. The tort
of privacy can really be seen as a “residual notion”2 that
protects a concept of privacy, which does not fit neatly into
one of the established torts but is seen as offensive to one’s
right to be “let alone.” The residual right of privacy is not
one tort, but four. The tort of privacy comprises four
different kinds of invasion of four different interests of the
plaintiff, which are described as follows:
 Intrusion upon the plaintiff’s seclusion or solitude, or
into his private affairs

Public disclosure of embarrassing private facts about
the plaintiff
1
www.mondaq.com/canada/x/162608/Privacy/Ontario+Employers+Tak
e+Note+New+Privacy+Tort+Created
2
See Kalven Jr., "Privacy and Tort Law - Were Warren and Brandeis
Wrong?", (1966), 31 Law & Con. Prob. 326 at p. 327.
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
Publicity that places the plaintiff in a false light in the
public eye
 Appropriation, for the defendant’s advantage, of the
plaintiff’s name or likeness
As an example, an investigator hired by an employer finds
the employee’s password, and goes onto his Facebook
page, and appropriates a photo of the employee cavorting at
a stripper bar at Aspen. The photo is then used to show that
the employee is not really disabled. On cross-examination
the employee explains that the photo was taken before his
accident at work. The investigator’s taking of the photo is
intrusion of seclusion, and the use of the photo is
appropriation under the fourth branch of this tort. Also, the
use of the photo to suggest that the employee was not really
injured is the third branch of the tort, and the publication of
the photo at a stripper bar may constitute a cause of action
under the second branch of the tort.
The Canadian Reaction
In the Commonwealth, the courts were content to attempt
to stretch the various, established torts rather than follow
the U.S. experiment. Thus a leading Canadian scholar
would write:
“Despite some encouraging suggestions
from a few courts, it would be fair to say
that the Canadian tort law does not yet
recognize a tort action for invasion of
privacy per se. Rather, “privacy” rights
have been protected under the umbrella of
other traditional tort actions, and by
legislative interventions. Several established
torts protect privacy interests. The dignity of
one’s person is protected by several torts,
such as assault, battery, the intentional
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infliction of emotional distress, and false
imprisonment. One’s right to be left alone to
use and enjoy property is protected by
trespass, and nuisance. One’s reputation is
protected by defamation. The right to the
commercial
exploitation
of
one’s
“personality” and “goodwill” also has
received protection. In Krouse v. Chrysler
Can. Ltd., the tort of “appropriation of
one’s personality”, fashioned from an action
on the case, was recognized by the court.
Another area of growing importance which
protects privacy interests is the law relating
to liability for breach of confidence. In view
of these alternatives, is a separate tort of
“invasion of privacy” necessary? It is
arguable that it is not. The concept of
privacy is too ambiguous and broad to be
able to be covered adequately in one cause
of action. It is desirable to have the different
aspects of privacy protection dealt with in
separate torts which more clearly can focus
on the interests at hand. Gaps in the law
which cannot be filled by extending
traditional principles can be dealt with as
they arise, either through the expansion of
the common law or by legislative
intervention.”3
The result is that in Canada anyone who wanted to sue an
investigator, and thereby the investigator’s employer, had
to rely on the usual tort claims. The usual claims were:

3
Trespass to the person includes assault, which is any
act of such a nature as to excite an apprehension of
L. Klar, Tort Law, at p. 56
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
battery. Battery is any intentional and unpermitted
contact with the plaintiff’s person or anything attached
to him and practically identified with him. False
imprisonment is the unlawful obstruction or deprivation
of freedom from restraint of movement. Thus an
aggressive use of the REID interrogation technique, or
the interrogator standing between the suspect and the
door, could lead to a claim. The tort of intimidation
might also be added to this list.
 Trespass to chattels, also known as trespass to goods
or trespass to personal property, is defined as an
intentional interference with the possession of personal
property. Trespass to chattel does not require a showing
of damages. Simply the intermeddling with or use of
the personal property of another gives cause of action
for trespass. Thus the inspection of a computer or a
briefcase, or any other personal property that is lawfully
in the possession of the suspect may give rise to a
claim.

Trespass to land is today the tort most commonly
associated with the term trespass; it takes the form of
wrongful interference with one’s possessory rights in
real property. Generally, it is not necessary to prove
harm to a possessor’s legally protected interest; liability
for unintentional trespass varies by jurisdiction. At
common law, every unauthorized entry upon the soil of
another was a trespasser. Thus entering into the office
space of a suspect who was an independent contractor
may give rise to a claim.

Conversion is a voluntary act by one person
inconsistent with the ownership rights of another. Thus
taking “evidence” that belongs to the suspect may give
rise to a claim, along with a claim for detinue, which is
the claim for the wrongful refusal to give back property
to the person lawfully entitled to possession of it.
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION

The tort of unlawful interference with economic
relations requires that the plaintiff prove that: (a) the
defendant intended to injure the plaintiff; (b) the
defendant interfered with the plaintiff’s economic
interest by illegal or unlawful means; and (c) as a result
thereof, the plaintiff suffered economic loss.
 The tort of inducing breach of contract requires (a) a
valid and enforceable contract between the plaintiff and
a third party; (b) the defendant knew of that contract;
(c) the defendant intended to bring about the breach of
that contract; (d) the defendant’s conduct caused a
breach of that contract; (e) the plaintiff suffered damage
as a result of the breach of that contract; and (f) the
defendant did not have a lawful justification for its
conduct, then the defendant has committed the tort of
inducing breach of contract.
 In these two previous torts, the investigator who
persists in making accusations against a suspect (a)
without any substantial evidence or (b) in the face of
substantial evidence to the contrary that results in the
suspect’s dismissal is likely to face these claims.
 Defamation—in the form of slander (for transitory
statements) and libel (for written, broadcast, or
otherwise published words)—is the communication of a
statement that makes a claim, expressly stated or
implied to be factual, that may give an individual or
business a negative image (called injurious falsehood).
The allegation must be false and that the publication is
communicated to someone other than the person
defamed (the claimant). Thus imputing fraud to a
suspect who later is exonerated often will result in
claims of this sort. The tort of injurious falsehood (also
known as trade libel) consists of the malicious
publication of a falsehood concerning the plaintiff that
leads other persons to act in a manner that causes actual
loss, damage, or expense to the plaintiff. Injury to
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
reputation is not a necessary element to this tort. The
plaintiff may sue for interference with any potential
advantage including those of a non-commercial nature.
A common claim, however, is that the injurious
falsehood amounts to a disparagement of the plaintiff's
property, products, business, or services, which affects
their marketability. The plaintiff has the onus of
proving that: the statements were false; the defendant
acted maliciously with intent to cause injury without
lawful excuse; and actual economic loss has occurred or
will occur as a result. A plaintiff or its products
normally must be identified by name in the impugned
publication, but identification by implication may be
sufficient, such as where the plaintiff enjoys almost
exclusive dominance of the market. The investigator
who wrongfully impugns a company, or its products or
service, can expect this type of claim.
Intrusion Upon Seclusion Surreptitiously Enters into
Canadian Law
While Canadian Courts would not recognize the tort of
evasion privacy directly, the “penumbra” of that tort has
existed in our law for a considerable time. For example, in
Motherwell,4 the Court upheld an injunction to stop the
defendants’ persisting and annoying telephone calls to the
plaintiff. While the Court recognized that the tort of
nuisance did not normally extend to this behaviour, the
Court also indicated that there will be judicial creativity if
circumstances warranted to find a remedy for unacceptable
intrusion into one’s privacy unfettered by technicalities of
existing tort law. In this case, the Court refused to be bound
by existing principles that nuisance was simply a real
estate–oriented tort.
4
(1976), DLR (3d) 62 (Alta. CA).
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In Saccone5 the plaintiff complained about the defendant
recording telephone conversations without his consent and,
despite warnings that such recordings took place, they were
improper. The defendant continued this conduct, arguing
that there was no such thing as the tort of invasion of
privacy. The Court awarded damages on the grounds that
there was such a tort “… for want of a better description
…” given the plaintiff’s express prohibition on a tape
recording.
In Lipiec6 the Court was concerned with feuding
neighbours, where one neighbour decided to install a
surveillance camera on this property for the sole purpose of
annoying the plaintiff. In this case, the Court found an
intentional invasion of the defendant’s right to privacy, one
of the very few explicit references to that right as an
independent right.
In Roth v. Roth,7 there was a dispute over access to a
cottage and there were allegations of verbal harassment,
trespass, and various other behaviours. The Court held that
the defendants’ acts constituted a harassment of the
plaintiffs’ enjoyment of their property. The Court also
found that the defendants’ actions amounted to an invasion
of the plaintiffs’ privacy and rejected the defendant’s view
that privacy flowed from property rights, thereby balancing
the rights of the parties and what was considered
reasonable behaviour, which are borne from the laws of
negligence.
A similar balancing act took place in R. v. Dieleman,8
(where the Court dealt with an intrusion of privacy rights of
5
(1981), 19 CCLT 37 (Ont. Cty. Ct.).
(1996), 31 CCLT (2d) 294 (Ont. Gen. Div.).
7
(1991), 4 O.R. (3d) 740 (Gen. Div.).
8
(1994), 20 OR (3d) 229 (Sup. Ct.).
6
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
an abortion clinic and balanced the right of privacy with the
attendees versus the right to freedom of speech for those
who oppose abortions. While the Court noted that it
“cannot speak with confidence of a Canadian tort or
invasion of privacy,” the Court certainly treated the matter
as if there was one.
In Valiquette9 a reporter wrote a front-page story about the
plaintiff who had AIDS. As in Deileman, the Court
balanced the privacy right versus the right of the public to
know freedom of expression.
The most explicit and sustained recognition of the right to
privacy appeared in Somwar10 (where the plaintiff learned
that the defendant had conducted a creditor and credit
check on him without his permission. In this case, the Court
recognized that while the Charter did not apply to private
individuals, the Court viewed an individual’s rights to
dignity and privacy as “Charter values,” which should be
recognised by common law:
“… advancements in technology, personal
data of an individual can now be collected,
accessed (properly and improperly), and
disseminated more easily than ever before.
There is a resulting increased concern in our
society about the risk of unauthorized access
to an individual’s personal information. The
traditional torts such as nuisance, trespass,
and harassment may not provide adequate
protection against infringement of an
individual’s privacy interests. Protection of
those privacy interests by providing a
common law remedy for their violation would
9
(1991), 8 CCLT (2d) 302.
(2006), 76 OR (3d) 172.
10
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
be consistent with Charter values and an
"incremental revision" and logical extension
of the existing jurisprudence. … the
foregoing analysis leads me to conclude that
the time has come to recognize invasion of
privacy as a tort in its own right. It therefore
follows that it is neither plain nor obvious
that the plaintiff's action cannot succeed on
the basis that he has not pleaded a
reasonable cause of action”.
The reference to harassment refers to cases such as Tran v.
Financial Debt Recovery Ltd.,11 where the defendant debt
collection agency failed to provide the plaintiff with the
amount outstanding on student loans and was allegedly
content to harass him at his workplace for repayment rather
than conducting discussions at his home address, which
was provided to the creditor.12
In Nitsopoulos v. Wong et al.,13 the Globe and Mail
published a series of articles authored by the defendant
Wong titled “Maid for a Month.” The series discusses
Wong’s experiences working as a maid for a cleaning
service in Toronto. The plaintiffs were identified as one of
Ms. Wong’s clients, and it portrayed them in a disparaging
light. The article was not alleged to be defamatory. The
plaintiffs alleged Wong’s unlawful conduct in gaining entry
to their home by deceit resulted in personal harm and
damages. The plaintiffs alleged that Wong only gained
access to the plaintiffs’ home because she falsely
represented herself to be a maid rather than as a journalist
and she failed to disclose her true purpose for being in the
11
[2000] O.J. No. 4293 (S.C.J.) (reversed on other grounds, [2001] O.J.
No. 4103 (Div. Ct.)).
12
Also Capan v. Capan, [1980] O.J. No. 1361 (H.C.J.).
13
2008 et al. 298 DLR (4th) 265 (Ont Sup.Ct.).
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
plaintiffs’ home. The Statement of Claim pleaded that her
fraudulent misrepresentation was made with the intention
of deceiving the plaintiffs and that Wong knew they would
not have permitted her in their home with the opportunity
to observe private details of their life but for the
misrepresentation. The plaintiffs claimed they suffered
damage as a result of this intrusion into their private lives,
including, “harm to their dignity interests and personal
autonomy,” their “personal and home security,” as well as
their mental well-being. In other words, the plaintiffs felt
violated by the deceptive means Wong used to gain access
to their home and their lives.
In this action, the plaintiffs stated that Wong intruded into
their seclusion and private affairs with the full knowledge
and consent of the newspaper, breaching their reasonable
expectation of privacy within their own home and with
respect to their personal information. They claimed that as
a result of Wong’s intrusion and surveillance, they have
suffered personal injury that includes harm to their dignity
interests, personal autonomy and that they have
experienced embarrassment and mental distress.
Public disclosure of embarrassing private facts about a
person has resulted in damage awards, even where the facts
disclosed are true and not libelous or defamatory. The court
recognized that Charter values will take into account the
privacy interests of the plaintiffs, but also the ability of
investigative journalists to play their role in a free and
democratic society. Where to draw the lines when Charter
values “butt up against one another” were left to the trial
judge in this case.
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The New Canadian Tort of Invasion of Privacy
In Jones v. Tsige,14 the plaintiff and the defendant worked
at different branches of the Bank of Montreal (BMO). The
plaintiff did all her personal banking with BMO. Over the
course of four years and on 174 occasions, Ms. Tsige
accessed and reviewed on her computer screen at work,
Ms. Jones’ private banking records. After being caught
doing this by BMO, the defendant acknowledged that she
had no legitimate purpose in reviewing the plaintiff’s
records, having done it for personal reasons. The defendant
was involved in a personal relationship with the plaintiff’s
former husband, and was trying to ascertain whether he was
paying child support to the plaintiff as he claimed. Both
parties asked for summary judgment on the plaintiff’s claim
for invasion of privacy.
The Ontario Court of Appeal confirmed that the U.S. law
regarding the tort of invasion of privacy was part of
Canadian law. Indeed the court cited the U.S. Restatement
(Second) of Torts’ formulation of the tort of intrusion of
seclusion:
“One who intentionally intrudes, physically
or otherwise, upon the seclusion of another
or his private affairs or concerns, is subject
to liability to the other for invasion of his
privacy, if the invasion would be highly
offensive to a reasonable person.”
The key features of this cause of action are: first, that the
defendant’s conduct must be intentional, which includes
recklessness; second, that the defendant must have invaded,
without lawful justification, the plaintiff’s private affairs or
concerns; and third, that a reasonable person would regard
14
2012 ONCA 32 rev’g 2011 ONSC 1475.
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the invasion as highly offensive, causing distress,
humiliation, or anguish. A claim for intrusion upon
seclusion will arise only for deliberate and significant
invasions of personal privacy. Claims from individuals who
are sensitive or unusually concerned about their privacy are
excluded: it is only intrusions into matters such as one’s
financial or health records, sexual practices and orientation,
employment, diary or private correspondence that, viewed
objectively on the reasonable-person standard, can be
described as highly offensive. Proof of harm is not an
element of the cause of action. However, given the
intangible nature of the interest protected, damages for
intrusion upon seclusion will ordinarily be measured by a
modest conventional sum. Finally, claims for the protection
of privacy may give rise to competing claims. Foremost are
claims for the protection of freedom of expression and
freedom of the press. No right to privacy can be absolute
and many claims for the protection of privacy will have to
be reconciled with, and even yield to, such competing
claims.
In this case there were no competing claims to balance. The
court was of the view that damages for intrusion upon
seclusion in cases where the plaintiff has suffered no
pecuniary loss should be modest but sufficient to mark the
wrong that has been done, and fixed the upper range at
$20,000.
In the case, the factors favouring a higher award were the
fact that the defendant’s actions were deliberate, repeated,
and arose from a complex web of domestic arrangements
likely to provoke strong feelings and animosity. The
plaintiff was therefore foreseeably very upset by the
intrusion into her private financial affairs. On the other
hand, the factors limiting the award were (a) the plaintiff
suffered no public embarrassment or harm to her health,
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
welfare, social, business or financial position, and (b) the
defendant has apologized for her conduct and made
genuine attempts to make amends. On balance, the court
awarded $10,000.
The Principles of Privacy
As set out in the Appendix A and B to this paper, some
provinces have recognized a right to sue for privacy. The
common law tort of privacy and statutory right of privacy
are likely to be guided by the following principles:

The right to privacy has four dimensions: (1) physical
or bodily privacy, (2) territorial privacy, (3) privacy of
communication, and (4) information privacy.15
 “Personal privacy” reflects the right an individual
has to control their physical person, and as such, is
given a high level of protection by the courts.
“Personal” in this context is not a synonym for
“private”, but refers to one’s physical person.
Personal privacy protects bodily integrity, and in

particular the right not to have our bodies touched
or explored to disclose objects or matters we wish
to conceal. The right to personal privacy protects
against unreasonable searches of one’s body, the
taking of blood or tissue samples, and other
physically invasive searches
“Territorial or spatial privacy” recognizes an
individual’s privacy interests in a particular
geographical space. For example, a person has a
strong privacy interest in their home, as it is the
place where our most intimate and private activities
are most likely to take place. While apartmentdwellers will have a privacy interest in their
apartments, a home owner’s privacy interest
extends to the surrounding land also owned. Spaces
15
R. v. Dyment, [1988] 2 S.C.R. 417.
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other than the home that have privacy significance
may also be given some protection. Such spaces
might include a car, hotel room, rented locker, or
even spaces occupied by one’s belongings such as a
purse or backpack. Territorial privacy only protects
a particular space as it relates to an individual. In
other words, privacy protects people not places.
Even though territorial privacy case law identifies
and assesses the reasonable expectation of privacy
in the context of a particular space, the existence, or
location of that space is not inherently private. What
takes place within one’s home may be considered
highly private, but the location of one’s home—the
street address—is information in the public domain.
Location information as such is not typically
protected by notions of territorial privacy. It is
considered to have privacy dimensions only to the
extent that it is personal information and, hence, it
is typically considered under an “informational

privacy” analysis.
“Privacy of communications” traditionally
addressed the right to send and receive mail or
make phone calls on land lines without
interceptions. Where cell phones do not require
“bugging,” and emails are transmitted through the
Internet, the concept of privacy of communications
has had to adopt. Email security depends on the
email service provider and how it is set up. As a
general legal matter, personal email should be
private. Most people trust that their emails are not
being read, but when people feel that their right to
keep their emails private is being violated, email
privacy takes effect. Privacy laws concerning
workplace email are different. A corporate
employer might have company-wide rules
permitting the company to read email sent or
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION

received through the company’s email service. If an
employer has policies that lead employees to think
that email communication through the company’s
email service is allowable for private purposes and
not for business purposes only, then the rights of the
employer might be limited when it comes to
monitoring emails.
“Informational privacy” reflects privacy interests
beyond our bodies and the places where we live and
work. Although physically unbounded,
“information” about oneself and the ability to
control it is central to dignity and integrity.
Territorial privacy protection does not necessarily
extend to spaces occupied by virtue of relationships,
however intimate, such as the car of a close friend
or a girlfriend’s apartment. Informational privacy
raises the question of how much information about
ourselves and our activities we are entitled to shield
from the curious eyes. The nature and level of the
informational privacy interest is very data and
context specific. For some time, Canadian courts
have focused on giving the highest level of
protection to a biographical core of personal
information, according little weight to other forms
of personal information. This biographical core of
information being information that individuals in a
free and democratic society would wish to maintain
and control from dissemination, being information
that tends to reveal intimate details of the lifestyle
and personal choices of the individual.
 A person’s privacy interest must be reasonable in the
circumstances, with due regard being given to the
lawful interests of others. Where a litigant does not
have a “Charter right” engaged because no
governmental actor is involved, that litigant can still
argue that the common law must develop in a way that
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is consistent with “Charter values.” Therefore, in the
context of civil litigation involving only private parties,
the Charter will “apply” to the common law only to the
extent that the common law is found to be consistent
with Charter values. The common law defining the tort
of invasion of privacy must develop in a way that
reflects emerging Charter values. Thus a court will
accept that a litigant must accept such intrusions upon
her privacy as are necessary to enable the judge or jury
to get to the truth and render a just verdict in a civil
case, but the court need not accept that by claiming
such damages as the law allows, a litigant grants her
opponent a licence to delve into private aspects of her
life which need not be probed for the proper disposition
of her litigation. Thus a court must be satisfied that the
defendant’s actions and production of a video
surveillance tape, for example, reflect Charter values,
by considering the means used, and by considering a
balancing of the privacy interest of the plaintiff against
the right of the defence to fully defend its case in
litigation and to have equal benefit of the law bearing in
mind the overall goal of the trial process is to discover
the truth.16
 While privacy has a subjective element in the sense that
the individual must show some indication, express or
implied, that they treat the information as private, the
suspect does not get to determine the boundaries of the
right to privacy. The subjective element is only one
element in the right. The labelling of items as
“confidential,” or attempting to delete items from one’s
computer, must give one pause, but it is not dispositive
of a right to privacy. “A defendant’s attempt to secrete
evidence of a crime is not synonymous with a legally
cognizable expectation of privacy. A mere hope for
16
Druken v. RG Fewer & Associates Inc. [1998] N.J. 312 (S.C.).
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secrecy is not a legally protected expectation. If it were,
search warrants would be required in a vast number of
cases where warrants are clearly not necessary.”17
 An assessment must be made as to whether in a
particular situation the public's interest in being left
alone must give way to the public’s interest in intruding
on the individual's privacy in order to advance its goals.
This assessment must be made in light of the totality of
the circumstances of a particular case to see if there was
a reasonable expectation of privacy in the
circumstances. The privacy right protects people, not
places. Thus one can never lose focus on the reasonable
expectation of the individual’s right to privacy without
being caught up in questions of whether that individual
had propriety or possessory right to the place in
question. A proprietary or possessory interest could
properly be considered as evidence of that personal
right. Thus ownership or a right to possession of a
personal computer may be evidence of a right to
privacy in its contents, the lack thereof does not mean
that the individual does not have a privacy right to the
contents of the computer itself. As one court has noted:
A person’s computer is a highly personal storage
instrument. Many cases have concluded that an
extremely high level of privacy is expected regarding
the contents.18
In R. v. Cole,19 a teacher had a reasonable expectation of
privacy where the laptop was owned by the school board
and was issued for employment purposes. Furthermore, the
server, network and data belonged to the school board.
However, the teachers were granted exclusive possession of
17
Comm of Pennsylvania v. Copenhefer, 587 A 2d 1353, 526 Pa 555,
at 562 (1991).
18
Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311.
19
2011 ONCA 218 (CanLII),leave to appeal to SCC granted 2011
CanLII 65604 (SCC).
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
the laptop, including during weekends and vacations, and
were permitted to use the laptop for personal use. The
teacher actually used the laptop for personal use as
evidenced by the presence of photographs of his wife. He
had the right to keep the laptop in his possession and he
protected access to the computer by a password. He had a
subjective expectation of privacy. Since other teachers also
used their computers to store sensitive personal
information, such as banking and financial information.
The conventions and customary use by teachers were
consistent with a reasonable expectation of privacy.
Furthermore, there was no clear privacy policy relating to
teachers’ laptops. The only privacy provision in the Policy
and Procedures Manual related to email; it emphasized that
attempts would be made to request the user’s permission if
access was required for system/trouble-shooting purposes.
It did not provide for the monitoring or search of the
teachers’ laptops. Finally, the fact that a computer
technician could access the hard drives of the laptops does
not negate a reasonable expectation of privacy, just as the
existence of a master key does not destroy the reasonable
expectation of privacy in a rented apartment, hotel room, or
in a bus locker. The absence of an exclusive right of access
did not undermine an expectation of privacy. In R. v. Little,
20
the application judge held that the accused had a
reasonable expectation of privacy in the information on his
work hard drive, but it was a diminished expectation
compared to that in a home computer or a computer owned
and used exclusively by an individual running his or her
own business. In France (Republic) v. Tfaily21 the court
noted that university professors are entitled to use their
work computers for personal communications and research
and that therefore they have an objectively reasonable
expectation of privacy in relation to personal electronic
20
21
2009 CanLII 41212 (ON S.C.).
2009, 98 O.R. (3d) 161 (C.A.) [In Chambers].
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
data. Thus in this case, the accused had a reasonable
expectation of privacy in the personal use of his work
laptop. Although this was a work computer owned by the
school board and issued for employment purposes with
access to the school network, the school board gave the
teachers possession of the laptops, explicit permission to
use the laptops for personal use and permission to take the
computers home on evenings, weekends and summer
vacation. The teachers used their computers for personal
use, they employed passwords to exclude others from their
laptops, and they stored personal information on their hard
drives. There was no clear and unambiguous policy to
monitor, search or police the teachers’ use of their laptops.
The information in the folder stored on the hard drive was
not in public view, was not abandoned and was not in the
hands of third parties. While the access by the technician
for the purpose of maintaining the integrity of the system
was not intrusive or objectively unreasonable, access by a
state actor for the purpose of determining the nature of the
information stored by the appellant would be intrusive.
Access to that information on the hard drive potentially
exposed intimate details of the appellant’s personal choices
and could have exposed intimate details of a personal
nature. The accused therefore had a reasonable expectation
of privacy in both the hard drive of the laptop and the
personal information it contained beyond what was
expected of a typical search by a technician would be an
invasion of privacy. On the other hand, where photos of
child pornography appear in plain view upon a routine
search of the computer by the technician for unstable files
or other technical problems, the technician is acting with
the tacit consent of the employee when he does such
searches and finding photos of child pornography in plain
view incidental to the technician’s duties is not an invasion
of privacy. It is only when the evidence accidentally
uncovered in the ordinary course changes the role of the
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
technician from repair person to investigator that Charter
rights are engaged and allegations of invasion of privacy
may be properly made.
 The courts can look at several factors in assessing the
totality of the circumstances that may lead to a
reasonable expectation of privacy, including the
following: (i) the individual’s presence at the time of
the search; (ii) possession or control of the property or
place searched; (iii) ownership of the property or place;
(iv) historical use of the property or item; (v) the ability
to regulate access, including the right to admit or
exclude others from the place; (vi) the existence of a
subjective expectation of privacy; and (vii) the
objective reasonableness of the expectation. 22 Another
way of looking at it is to ask the following questions:
(1) What was the nature or subject matter of the
evidence? (2) Did the plaintiff have a direct interest in
the contents? (3) Did the plaintiff have a subjective
expectation of privacy in the informational content? (4)
If so, was the expectation objectively reasonable? In
this respect, regard must be had to: a. the place where
the alleged “search” occurred; in particular, did the
police trespass on the appellant’s property and, if so,
what is the impact of such a finding on the privacy
analysis? b. whether the informational content of the
subject matter was in public view; c. whether the
informational content of the subject matter had been
abandoned; d. whether such information was already in
the hands of third parties; if so, was it subject to an
obligation of confidentiality? e. whether the police
technique was intrusive in relation to the privacy
interest; f. whether the use of this evidence gathering
technique was itself objectively unreasonable; g.
whether the informational content exposed any intimate
22
R. v. Edwards, [1996] 1 SCR 128.
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
details of the appellant’s lifestyle, or information of a
biographic nature.23
 In terms of scope, an investigating party should
understand that the tort includes not only physical
intrusions but also listening or looking, into a person's
private affairs, opening private or personal
correspondence, intercepting communications, or
examining a private bank account. The new tort
specifically recognizes a person's right to informational
privacy (as distinct from personal and territorial
privacy) including sensitive health information, sexual
orientation, employment information, diary or private
correspondence, information indicating where a person
lives, or any communications by cell phone, e-mail or
text message.24
 In determining whether the evidence gathering
technique is inherently unreasonable, the courts are
likely to consider analogies to a police officer
proceeding to search without a warrant. The
reasonableness of a warrantless search can be
established in several other ways, (a) there is consent to
the search; (b) the police come upon evidence in the
course of their duties or unexpectedly and that evidence
is in plain view (under the “plain view doctrine”); (c)
the search is incident to arrest; (d) the search is incident
to detention; or (e) the search is ancillary to the
common law police powers and duties to keep the
peace and preserve life. In a civil context only (a) and
(b) are analogous. Other issues will relate to whether
the was a need to immediately gather and preserve
evidence because an emergency court order ex parte
was not available in the circumstances, or whether the
23
R v. Patrick, [2009] 1 Scr 579, at para 27.
M. Mysak et al., “The Need to Know versus the Right to Intrude: A
Caution on Fraud Investigation,” July 05, 2012;
www.bennettjones.ca/Publications/Updates/The_Need_to_Know_Vers
us_the_Right_to_Intrude__A_Caution_on_Fraud_Investigation/
24
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investigator was proceeding under a mistake of fact,
law, or under a colour of right.
 A person’s entitlement to privacy is highest where the
expectation of privacy would be greatest. Therefore, a
person’s expectation of privacy would be highest in
one’s home.
 There is no reasonable expectation of privacy for
actions taking place in public. Even if actions take place
on private property, the circumstances may suggest that
there is not a reasonable expectation of privacy. It is
generally permitted to videotape a plaintiff in a public
place or a place visible to the public such as a parking
lot or the front yard of one’s house 25
 The Canada Labour Code, the federal and provincial
human rights and labour codes and collective
agreements between labour and management may each
affect the issue of whether employee searches are
reasonable or an invasion of privacy. Generally,
employers have no greater right than other citizens to
search someone's personal belongings or body without
justification or permission. An attempt to search
someone's body without their permission invites a claim
of assault. A search of a worker's gym bag without
permission invites a claim to trespass. While an
employer usually cannot search a person's body, it may
be quite reasonable for a manager who suspects theft,
substance abuse or some other misdeed on the job to
ask the employee for his or her co-operation in
emptying pockets, purses or knapsacks. The employee
does not have to comply, and persistence in the request
may vitiate the voluntariness of any permission that
may eventually be obtained.

Even where only the common law of privacy is
involved, looking at legislation in other jurisdictions
25
Milner v Manufacturers Life Insurance Company, 2005 BCSC 1661
(CanLII).
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
will assist you and your counsel in determining the line
where privacy rights begin to be implicated. So, for
example, The Freedom of Information and Protection
of Privacy Act of Saskatchewan26 (FOIP), has defined
“personal information” about an identifiable individual
that is recorded in any form and includes a name, race,
creed, religion, colour, sex, sexual orientation, family
status, marital status, disability, age, nationality,
ancestry or place or origin, education, criminal,
employment or financial history, health history or
health care received, an identifying number or symbol,
contact information (home or business address, phone
number), fingerprints, blood type, confidential
correspondence to a local authority (except if it is about
your views or opinions about another), opinions of
another about you, your personal opinions (unless about
another person), information on a tax return, and
information describing someone’s finances, assets,
liabilities or credit worthiness. FOIP also lists items
which are excluded from the definition of personal
information.6 Personal Information does not include
the classification, salary of officer or employee (past or
present); personal opinions in the course of work (other
than about another person); details of a contract for
personal services; details of a license, permit or
discretionary benefit/financial benefit granted by a local
authority to an individual; traveling expenses of
individual paid by a local authority; academic ranks or
departmental designations of members of faculties of
the University of Saskatchewan and the University of
Regina; degrees, certificates, or diplomas and
discretionary benefits. So too Article 36 of the Quebec
Civil Code when it advises that the following acts, in
particular, may be considered as invasions of the
26
S.S. 1990-91, c. F-22.01.
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
privacy of a person: 1) entering or taking anything in
his dwelling; 2) intentionally intercepting or using his
private communications; 3) appropriating or using his
image or voice while he is in private premises;
4) keeping his private life under observation by any
means; 5) using his name, image, likeness or voice for a
purpose other than the legitimate information of the
public; and 6) using his correspondence, manuscripts or
other personal documents. The Appendix may be
referred to for further guidance in this area.

The criminal law can also provide guidance. Thus
entering into a home under pretext is both illegal, and
likely an invasion of privacy. Thus section 350 of the
Criminal Code provides that for a person shall be
deemed to have broken and entered, or have been
unlawfully in a dwelling place if (i) he obtained
entrance by ….an artifice.” An “artifice” is a
contrivance or device; used to refer to fraud or deceit,
or a lever plan or idea, intended to deceive. Thus an
investigator using deceit to gain access to premises and
obtain physical evidence therein may not only be
convicted of breaking and entering and unlawfully
entering a dwelling, she may also be liable for invasion
of privacy. So too the offence of unauthorized use of
computer is created by s.342.1 of the Criminal Code
that provides that every one who, fraudulently and
without colour of right, (a) obtains, directly or
indirectly, any computer service, (b) by means of an
electro-magnetic, acoustic, mechanical or other device,
intercepts or causes to be intercepted, directly or
indirectly, any function of a computer system, or
(c) uses or causes to be used, directly or indirectly, a
computer system with intent to commit an offence
under paragraph (a) or (b) or an offence under section
430 (mischief) in relation to data or a computer system,
or (d) uses, possesses, traffics in or permits another
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
person to have access to a computer password that
would enable a person to commit an offence under
paragraph (a), (b) or (c) is guilty of an indictable
offence and liable to imprisonment for a term not
exceeding ten years, or is guilty of an offence
punishable on summary conviction. Thus a computer
forensics person who accesses personal data
surreptitiously may not only be liable for invasion of
privacy but guilty of a criminal offence. The criminal
nature of the enterprise forecloses any “balancing” of
the public’s right to know and a fair trial and a right to
privacy—public policy has made the act in question
criminal, and almost by that fact alone, an invasion of
privacy.
 Consent to what would otherwise be an invasion of
privacy must be based on sufficient and accurate
information being provided to the plaintiff so that any
right has been validly waived.27
 The plain view doctrine is not a license to computer and
phone forensic people to search everywhere. Where a
computer technician ordinary reviews an entire hard
drive as part of his or her job, and discovers something
illegal, that may be in “plain view”, but a subsequent
search of temporary files that ordinarily would not have
been undertaken may be an invasion of privacy even
though it is not password protected.28
 Ordinarily commercial transactions are not subject to
claims of invasion of privacy. Thus the Plaintiff’s
cheques, for example, ordinarily would not be
considered private. Unless the commercial item such as
an invoice provided insight into intimate details of the
lifestyle and personal choices of the individual they are
not private. So too, computer records revealing the
27
R. v. Borden, [1994] 3 S.C.R. 145.
W. MacKinnon, “Section 8 meets the iPhone” (2011) 84 C.R. (6 th)
232.R v. Cole [2011] ONCA 218.
28
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pattern of electricity consumption in the residence
going to show that an illegal “grow up” was likely on
the premises cannot reasonably be said to reveal
intimate details of the plaintiff’s life since electricity
consumption reveals very little about the personal
lifestyle or private decisions of the occupant of the
residence. Moreover, the nature of the relationship
between the home owner and the electric company
cannot be characterized as a relationship of confidence.
The electric company, for example, prepares the
records of use as part of an ongoing commercial
relationship and ordinarily is contractually or statutorily
bound to keep them confidential.29 The right to privacy
refers to information tending to reveal details of a
lifestyle and intimate details of a person’s life which
they intend to restrict access to. Thus disclosure of
intimate details to close friends and family is not a
waiver of privacy—it simply creates a zone of privacy
which an employer or investigator is normally outside.
How Will the Tort Affect the Fraud Examiner’s
Practice?
There seems to be little doubt that an “unreasonably
intrusive” investigation by an investigator gives rise to
personal tort liability on the part of the investigator.30
Under the doctrine of vicarious liability, one who hires an
investigator will be held liable for the torts of the detective
if the employer exercises control over the detective, or in
29
R. v. Plant, [1993] 3 SCR 281.
In Canada see ADGA v. Valcom (19999) 41 O.R> (3d) 101 (C.A.).
See e.g., Noble v. Sears Roebuck & Co., 33 Cal. App. 3d 654, 109 Cal.
Rptr. 269 (1973); Tucker v. American Employers' Insurance Co., 171
So. 2d 437 (Fla. Dist. Ct. App. 1965); Pinkerton National Detective
Agency, Inc. v. Stevens, 108 Ga. App. 159, 132 S.E.2d 119 (1963);
Souder v. Pendleton Detectives, 88 So. 2d 716 (La. Ct. App. 1956);
Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350 (1996),
discretionary review denied, 345 N.C. 344, 483 S.E.2d 172 (1997); see
Restatement (Second) of Torts 652B cmt. b, illus. 2 (1977)
30
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the alternative, if the private detective commits an
intentional, not negligent, tort within the scope of the
employment.31 From there, the courts leave us with little
guidance beyond a series of examples. For what would be
highly offensive to the reasonable person as an invasion of
privacy may be easy to state, but it is hard to apply. What
can we say for certain?
Pre-Texting to Get Access to Information Invites a
Claim for Invasion of Privacy
In Shred-Tech Corp. v. Viveen,32 the Defendants were
former employees and suppliers of the Plaintiff. The
Plaintiff retained an investigative agency to examine
the activities of the Defendants in establishing a
competing business. After receiving the investigative
report, the Plaintiff commenced this lawsuit. During the
litigation process, an affidavit of documents was served
on behalf of the Plaintiff that revealed an investigative
report and other information provided by the
investigative agency to the Plaintiff. This disclosure
indicated two items, namely: (i) the investigator
obtained the Defendants’ Bell Canada telephone
records without their consent or court order; and, (ii)
the investigator, under the pre-text of being as a
prospective customer, entered the business premises of
one of the defendants and, secretly and without
permission, made a video and audio recording. As a
result of this disclosure, the Defendants sued Sintrack
Investigation Agency Inc. and Stan Mrowiec, a private
investigator employed by Sintrack, for invasion of
privacy and trespass. The Court not only allowed those
claims to proceed, it granted leave to the Defendants to
use the material they received in the Plaintiff’s affidavit
31
United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73,
75 (1979).
32
2006 CanLII 41004 (ON SC).
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of documents as the basis of a disciplinary complaint
against the investigators despite Ontario’s “implied
undertaking” that documents obtained during litigation
will not be used for any other, collateral purpose. The
court was of the view that the public interest was best
served by allowing disclosure of the investigators’
behaviour to their disciplinary body.
In Re West and College of Nurses of Ontario33 a nurse
obtained medical information by claiming to be a staff
member of a fictitious doctor. In reality she was
working for a private investigator. She was originally
found guilty of professional misconduct by the College
Of Nurses under a regulation defining professional
misconduct as conduct or an act relevant to the
performance of nursing services that would reasonably
be regarded by members as disgraceful, dishonourable
or unprofessional. The Divisional Court overturned the
decision, holding that the nurse was not engaged in the
performance of nursing services when she engaged in
the pre-text. This however, will not protect the
investigator from a claim from invasion of privacy.
Burns v. Masterbrand Cabinets, Inc. et al.,34is a similar
case. James Burns filed a complaint alleging that he
sustained a work injury. Burns had filed a claim with
the Illinois Industrial Commission for workers'
compensation benefits. The employer, Masterbrand,
retained co-defendant Gallagher Bassett Services, Inc.
to adjust the claim and to manage the workers'
compensation case. In his complaint, Burns alleged that
Gallagher retained co-defendant Metro Private
Investigations, Inc. (“Metro”) to perform personal
surveillance of Burns. On November 13, 2002, an
employee of Metro, approached Burns's mobile home
33
34
(1981), 32 O.R. (2d) 85 (Div. Ct.).
369 Ill. App. 3d 1006 (4th Dist. 2007) app'l den. 224 Ill.2d 572.
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and sought entry under the false pretence that Kennedy
was looking for a missing juvenile. Burns alleged that
Kennedy was holding a picture of a young girl when he
approached his home. Once inside, Kennedy asked
Burns questions about the missing juvenile. Kennedy
used a hidden camera in a fanny pack to record Burns.
Kennedy later testified in Burns's workers'
compensation case with regard to the Plaintiff’s alleged
physical limitations. The visit to Burns's home was the
basis for Kennedy's testimony. Burns had alleged the
four necessary elements of the claim in his complaint:
(1) an unauthorized intrusion or prying into the
plaintiff's seclusion, (2) the intrusion must be offensive
or objectionable to a reasonable man, (3) the matter
upon which the intrusion occurs must be private, and
(4) the intrusion causes anguish and suffering. The
appellate court also acknowledged a different
definition, which says, “One who intentionally intrudes,
physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns, is subject
to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable
person.” The court remanded the case for trial.
In Johnson v. K-Mart Corp.,35 the employer believed
employees were stealing, vandalizing merchandise,
using and distributing drugs, and sabotaging operations
in the distribution center. The company hired two
private investigators to pose as employees. The
investigators periodically submitted reports to the
general manager of the center. Despite instructions
provided by the employer, the investigators included in
their reports information about employees' children's
criminal conduct, incidents of domestic violence,
upcoming divorces, employee sexual conduct, plans to
35
311 Ill. App. 3d 573 (1st Dist. 2000).
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leave K-Mart's employment, complaints about the
company, and employee health problems. The
employees' invasion of privacy claim, based on
intrusion on seclusion, was allowed to proceed. The
Illinois court of appeals found that the disclosures to the
detectives were not truly voluntary because they were
induced by deceptive means. The appellate court found
that the employees had a reasonable expectation of
privacy in conversations with co-workers and therefore
a question of fact arose as to whether the unauthorized
intrusion alleged would be offensive or objectionable to
a reasonable person.
Privacy Is About “Personal Space” Not Personal
Property
Whether the plaintiff owns the property or not is not
decisive: virtual entry into premises via electronic
means such as listening devices or computer hacking
may not be trespass, but it almost certainly invites a
claim for invasion of privacy.36 If the employer equips
the employee's office with a safe or file cabinet or other
receptacle in which to keep his private papers, the
employee can assume that the contents of the safe are
private.37 Privacy Is About Controlling Personal Information
As we have seen, investigating bank account or credit
card information that may be protected by legislation or
36
Dobbs, The Law of Torts, 359 (3rd ed, 2011).
Shields v. Burge, 874 F.2d 1201, 1203–04 (7th Cir.1989); Leventhal
v. Knapek, 266 F.3d 64, 73–74 (2d Cir.2001); United States v. Taketa,
923 F.2d 665, 673 (9th Cir.1991); Schowengerdt v. General Dynamics
Corp., 823 F.2d 1328, 1335 (9th Cir.1987); Gillard v. Schmidt, 579
F.2d 825, 828 (3d Cir.1978); compare United States v. Bilanzich, 771
F.2d 292, 297 (7th Cir.1985).; O’Connor v. Ortega, 480 U.S. 709, at
718–19.
37
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contractual confidentiality provisions also will attract a
claim, unless a proper waiver is obtained.38
Lawful Conduct Requires a Balancing Act
The courts will balance the plaintiff’s right to privacy
with the defendant’s right to know. For example, the
employer’s valid interest in investigating wrongdoing
will be relevant to the claim. In Leventhal v. Knapek, et
al.39 a government employee has a reasonable
expectation of privacy in an office computer located in
his private office in light of the absence of both a
computer usage policy advising him to the contrary,
and a regular practice by his employer of searching the
same. The Court found that the search in question did
not constitute an invasion of privacy. Such searches are
permitted if the search is both justified at its inception
and of appropriate scope. Such was the case here,
because the government had received anonymous
notice of alleged job-related misconduct in the form of
personal use of an office computer by the plaintiff
employee and had conducted an appropriately
circumspect inspection of his office computer to
ascertain the validity of these allegations. As part of its
search the employer, without the Plaintiff's knowledge
or consent, copied the names of the files stored in
Plaintiff's computer. Certain of the files on Plaintiff's
computer were password protected. A review of these
file names indicated that Plaintiff had non-standard
computer programs on his office computer, which
suspicion was confirmed by subsequent inspections of
his computer. These inspections revealed that the
Plaintiff had a tax preparation program titled Pencil
Pushers stored on his computer. According to the Court,
a search “is ‘reasonable’ when the measures adopted
38
39
Remsburg v. Docusearch Inc., 816 A 2d 1001 (N.H., 2003).
266 F. 3d 64 ( 2001).
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are reasonably related to the objectives of the search
and not excessively intrusive in light of' its purpose.”
The Need for the Third-Party Consent
Privacy involves a membrane of intimacy in which the
individual allows some people access, but not others. If
the suspect does not provide consent, then others who
are within the boundary of intimacy may still provide a
valid consent. Persons with joint access or control are
all capable of giving a valid consent to access what
otherwise might be considered private. 40 Thus
employers, co-workers, or assistants may give access to
material to an investigator provided they have the
express or implied consent of the suspect to access
those materials themselves.
Charter Values and the Convergence of the Law of
Tort and Criminal Law
Anton Piller orders, in which a party obtains a court
order without notice to inspect property in the
defendant’s premises for the purpose of preserving
evidence has been called a “civil search warrant”41
While these orders do not allow plaintiffs to force their
way into offices and homes, they create the spectre of
contempt of court for the defendant who refuses access.
This may be a distinction without a real difference, for
courts demand the same weighing of the public and
private interests called “Charter Values” in a civil case
involving an Anton Piller order that a criminal court
does in a case involving Charter rights. In other words,
the standards for Anton Piller orders are at least as high
as for criminal searches, if not higher:
40
R. v. Sanelli, Duarte and Fasciano, [1987] 61 OR (2d) 385 (C.A.); R
v. Meyers (1987) 58 C.R. (3d) 176 (Alta Qb).
41
Richel v. Stevenson, 1998 ABQB 1039, at para 13 (CanLII).
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION




There must be prior public authorization. For Anton
Piller orders, the ex parte motion and order meet
this requirement.
The authorization should be made by a neutral
“judicial” decision-maker. Anton Piller orders are
made by Masters or judges.
The justice must be satisfied by information sworn
on oath. Anton Piller orders also require sworn
evidence.
The substantive standards to be met are equivalent
to those set out in s. 487 of the Criminal Code42.
The mere possibility of finding evidence is not
sufficient. One must show “reasonable and probable
(that is, prima facie) grounds to believe that an
offence has been committed and that there is
evidence to be found at the place of the search.
Anton Piller orders satisfy and possibly exceed this
test by requiring a strong prima facie case and
“clear evidence that the defendants have in their
possession incriminating documents or things.”
Because other safeguards and standards not required
by Hunter are considered in granting an Anton
42
487. (1) A justice who is satisfied by information on oath in Form 1
that there are reasonable grounds to believe that there is in a building,
receptacle or place (a) anything on or in respect of which any offence
against this Act or any other Act of Parliament has been or is suspected
to have been committed, (b) anything that there are reasonable grounds
to believe will afford evidence with respect to the commission of an
offence, or will reveal the whereabouts of a person who is believed to
have committed an offence, against this Act or any other Act of
Parliament, (c) anything that there are reasonable grounds to believe is
intended to be used for the purpose of committing any offence against
the person for which a person may be arrested without warrant, or
(c.1) any offence-related property, may at any time issue a warrant
authorizing a peace officer or a public officer who has been appointed
or designated to administer or enforce a federal or provincial law and
whose duties include the enforcement of this Act or any other Act of
Parliament and who is named in the warrant (d) to search the building,
receptacle or place for any such thing and to seize it, and (e) subject to
any other Act of Parliament, to, as soon as practicable, bring the thing
seized before, or make a report in respect thereof to, the justice or some
other justice for the same territorial division in accordance with section
489.1.
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Piller order, such orders theoretically meet a
standard equal to or higher than the criminal law.
One important restriction enforced with search
warrants that are also be strictly enforced for Anton
Piller orders is that the search parameters not be
overly broad.43
Conclusion
One who intentionally intrudes, physically or otherwise,
upon the seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of
his privacy, if the invasion would be highly offensive to a
reasonable person. We have outlined some of the items that
are likely to be implicated by this tort, including financial
or health records, sexual practices and orientation,
employment records, and diaries or private correspondence.
This is an intentional tort, meaning one had to intentionally
do the act in question, rather than intentionally doing it
knowing it was wrong. Since evidence is acquired
intentionally, any evidence gathering investigation may be
subject to a claim for invasion of privacy by the suspect or
targets of an investigation. Accidentally invading the
privacy of others through inadvertence is not likely to result
in a claim.
Using impersonation, lies, or any form of pretexts to secure
access to private information is prohibited. That is a sure
indication of the investigator’s awareness that the
information is private, and that the consent being secured is
based on false pretences. It will not do for a fraud
investigator to use fraudulent means to secure evidence that
would otherwise be unavailable to hem. While a certain
43
Ontario Realty Corp. v. P. Gabriele & Sons Ltd., [2000] 50 OR (3d)
539, at para 34 (Sup Ct).
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
amount of trickery is permissible, one can deceive another
into forfeiting their rights. That offends “Charter Values”.
The investigator must clearly distinguish evidence for the
purpose of proving or disproving wrongdoing, versus
evidence that is only relevant to embarrassing the subject of
the investigation. Now the investigator must now form an
opinion on whether something that appears confidential or
private implicates a right to privacy. If it is not in plain
sight, and it otherwise appears to be caught by the veil of
privacy, the investigator must seek the consent of one of
the individuals within the membrane of privacy to obtain
the information he or she seeks, be that the suspect, the
employer, the spouse, the assistant, or other person who has
the suspect’s permission (express or implied) to access the
private matter. Without that permission, the suspect must
proceed cautiously, recognizing that we anticipate that the
criminal law and the civil law will find common ground
under the rubric “Charter Values”, such that in
circumstances where a public investigator would be obliged
to get a warrant, a private investigator is likely to be
obliged to get a court order (an Anton Piller order being the
most common) or risk a claim for invasion of privacy.
“Charter values” includes not only what the investigator
does, but how she or he does it. An investigator must show
a rational analysis that balanced an immediate need to
preserve evidence, and an attempt to restrict the
investigation to the minimally invasive means of executing
this task, and an attempt to must now be part of the
investigator’s plan of action.
Intrusion is only one facet of this tort. Eavesdropping on
conversations, reading other e-mails, and other forms of
invasion is not all one has to worry about. Disclosure of
private information is another. Thus disclosing non-public
information to one’s client, even though true, may result in
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CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION
a claim. Thus vetting reports for all private information that
may not be relevant to the client’s mandate must be
undertaken. Disclosing that information as part of a
recommendation to the client to expand the investigation
may be proper, but once again a judgment call has to be
made between the public good of the disclosure compared
to the private embarrassment to the target of the
investigation. Is your report a reflection of a balanced,
professional investigation or is it a deliberate or reckless
attempt to support your client’s allegations by the addition
of innuendo and embarrassing personal information?
While the compensatory damages for invading privacy may
be modest, investigators will find themselves playing
“defence”, and being the subject of scrutiny as suspects use
the tort of privacy as a strategic tool. Moreover a punitive
damage claim may not be modest, and it may not be
covered by your malpractice insurance. Suspects will now
use the tort of invasion of privacy in the context of civil
investigation in the same way they use the Charter to attack
criminal and regulatory challenges, with one salient
difference—the investigator now becomes a party to any
ensuing proceedings and faces personal liability, as well as
incurring vicarious liability for the client. This makes a
civil investigation a high risk, high stakes venture that
requires investigators to review (a) their internal protocols,
(b) their malpractice insurance, and (c) the engagement
letters to ensure that they all properly address the new
Canadian tort of invasion of privacy.
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Appendix A: Statutory right to sue for invasion of privacy
Federal
-
-
British
Columbia
Privacy Act,
R.S.B.C.
1996, c. 373
S. 1(1) It is a tort, actionable without proof of damage, for a
person, wilfully and without a claim of right, to violate the
privacy of another.
(2) The nature and degree of privacy to which a person is
entitled in a situation or in relation to a matter is that which is
reasonable in the circumstances, giving due regard to the lawful
interests of others.
(3) In determining whether the act or conduct of a person is a
violation of another's privacy, regard must be given to the
nature, incidence and occasion of the act or conduct and to any
domestic or other relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be
violated by eavesdropping or surveillance, whether or not
accomplished by trespass.
S. 2(2) An act or conduct is not a violation of privacy if any of
the following applies:
(a) it is consented to by some person entitled to consent;
(b) the act or conduct was incidental to the exercise of a lawful
right of defence of person or property;
(c) the act or conduct was authorized or required by or under a
law in force in British Columbia, by a court or by any process
of a court;[...]
(3) A publication of a matter is not a violation of privacy if
(a) the matter published was of public interest or was fair
comment on a matter of public interest, or
(b) the publication was privileged in accordance with the rules
of law relating to defamation.
(4) Subsection (3) does not extend to any other act or conduct
by which the matter published was obtained if that other act or
conduct was itself a violation of privacy.
Alberta
-
-
Saskatchewan
The Privacy S. 2 It is a tort, actionable without proof of damage, for a person
wilfully and without claim of right, to violate the privacy of
Act, R.S.S.
1978, c. P-24 another person.
S. 3 Without limiting the generality of section 2, proof that
there has been:
(a) auditory or visual surveillance of a person by any means
including eavesdropping, watching, spying, besetting or
following and whether or not accomplished by trespass;
(b) listening to or recording of a conversation in which a person
participates, or listening to or recording of messages to or from
that person passing by means of telecommunications, otherwise
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than as a lawful party thereto;
(c) use of the name or likeness or voice of a person for the
purposes of advertising or promoting the sale of, or any other
trading in, any property or services, or for any other purpose of
gain to the user if, in the course of the use, the person is
identified or identifiable and the user intended to exploit the
name or likeness or voice of that person; or
(d) use of letters, diaries or other personal documents of a
person;
without the consent, expressed or implied, of the person or
some other person who has the lawful authority to give the
consent is prima facie evidence of a violation of the privacy of
the person first mentioned.
S. 4(1) An act, conduct or publication is not a violation of
privacy where:
(a) it is consented to, either expressly or impliedly by some
person entitled to consent thereto;
(b) it was incidental to the exercise of a lawful right of defence
of person or property;
(c) it was authorized or required by or under a law in force in
the province or by a court or any process of a court;[...]
(2) A publication of any matter is not a violation of privacy
where:
(a) there were reasonable grounds for belief that the matter
published was of public interest or was fair comment on a
matter of public interest; or
(b) the publication was, in accordance with the rules of law
relating to defamation, privileged;
but this subsection does not extend to any other act or conduct
whereby the matter published was obtained if such other act or
conduct was itself a violation of privacy.
S. 6(1) The nature and degree of privacy to which a person is
entitled in any situation or in relation to any situation or matter
is that which is reasonable in the circumstances, due regard
being given to the lawful interests of others.
(2) Without limiting the generality of subsection (1) in
determining whether any act, conduct or publication constitutes
a violation of the privacy of a person, regard shall be given to:
(a) the nature, incidence and occasion of the act, conduct or
publication;
(b) the effect of the act, conduct or publication on the health
and welfare, or the social, business or financial position, of the
person or his family or relatives;
(c) any relationship whether domestic or otherwise between the
parties to the action; and
(d) the conduct of the person and of the defendant both before
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and after the act, conduct or publication, including any apology
or offer or amends made by the defendant.
Manitoba
©2012
The Privacy
Act,
C.C.S.M.
1987, c.
P-125
S. 2(1) A person who substantially, unreasonably, and without
claim of right, violates the privacy of another person, commits a
tort against that other person.
(2) An action for violation of privacy may be brought without
proof of damage.
S. 3 Without limiting the generality of section 2, privacy of a
person may be violated
(a) by surveillance, auditory or visual, whether or not
accomplished by trespass, of that person, his home other place
of residence, or of any vehicle, by any means including
eavesdropping, watching, spying , besetting or following;
(b) by the listening to or recording of a conversation in which
that person participates, or messages to or from that person,
passing along, over or through any telephone lines, otherwise
than as a lawful party thereto or under lawful authority
conferred to that end;
(c) by the unauthorized use of the name or likeness or voice of
that person for the purposes of advertising or promoting the sale
of, or any other trading in, any property or services, or for any
other purposes of gain to the user if, in the course of the use,
that person is identified or identifiable and the user intended to
exploit the name or likeness or voice of that person; or
(d) by the use of his letters, diaries and other personal
documents without his consent or without the consent of any
other person who is in possession of them with his consent.
S. 4(2) In awarding damages in an action for a violation of
privacy of a person, the court shall have regard to all the
circumstances of the case including
(a) the nature, incidence and occasion of the act, conduct or
publication constituting the violation of privacy of that person;
(b) the effect of the violation of privacy on the health, welfare,
social, business or financial position of that person or his
family;
(c) any relationship, whether domestic or otherwise, between
the parties to the action;
(d) any distress, annoyance or embarrassment suffered by that
person or his family arising from the violation of privacy; and
(e) the conduct of that person and the defendant, both before
and after the commission of the violation of privacy, including
any apology or offer of amends made by the defendant.
S. 5 In an action for violation of privacy of a person, it is a
defence for the defendant to show
(a) that the person expressly or by implication consented to the
act, conduct or publication constituting the violation; or
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(b) that the defendant, having acted reasonably in that regard,
neither knew or should reasonably have known that the act,
conduct or publication constituting the violation would have
violated the privacy of any person; or
(c) that the act, conduct or publication in issue was reasonable,
necessary for, and incidental to, the exercise or protection of a
lawful right of defence of person, property, or other interest of
the defendant or any other person by whom the defendant was
instructed or for whose benefit the defendant committed the act,
conduct or publication constituting the violation; or
(d) that the defendant acted under authority conferred upon him
by a law in force in the province or by a court or any process of
a court; or[...]
(f) where the alleged violation was constituted by the
publication of any matter
(i) that there were reasonable grounds for the belief that the
publication was in the public interest; or
(ii) that the publication was, in accordance with the rules of
law in force in the province relating to defamation, privileged;
or
(iii) that the matter was fair comment on a matter of public
interest.
Ontario
-
-
Quebec
Civil Code of
Quebec, S.Q.
1991, c. 64
BOOK ONE
PERSONS
TITLE TWO
CERTAIN PERSONALITY RIGHTS
CHAPTER III
RESPECT OF REPUTATION AND PRIVACY
Art. 35. Every person has a right to the respect of his reputation
and privacy.
No one may invade the privacy of a person without the consent
of the person or his heirs unless authorized by law.
Art. 36. The following acts, in particular, may be considered as
invasions of the privacy of a person:
1) entering or taking anything in his dwelling;
2) intentionally intercepting or using his private
communications;
3) appropriating or using his image or voice while he is in
private premises;
4) keeping his private life under observation by any means;
5) using his name, image, likeness or voice for a purpose other
than the legitimate information of the public;
6) using his correspondence, manuscripts or other personal
documents.
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Art. 37. Every person who establishes a file on another person
shall have a serious and legitimate reason for doing so. He may
gather only information which is relevant to the stated objective
of the file, and may not, without the consent of the person
concerned or authorization by law, communicate such
information to third persons or use it for purposes that are
inconsistent with the purposes for which the file was
established. In addition, he may not, when establishing or using
the file, otherwise invade the privacy or damage the reputation
of the person concerned.
BOOK TWO
OBLIGATIONS
TITLE 1
OBLIGATIONS IN GENERAL
CHAPTER III
CIVIL LIABILITY
Art. 1457 Every person has a duty to abide by the rules of
conduct which lie upon him, according to the circumstances,
usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is
responsible for any injury he causes to another person by such
fault and is liable to reparation for the injury, whether it be
bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury
caused to another by the act or fault of another person or by the
act of things in his custody.
New Brunswick -
-
Nova Scotia
-
-
Prince Edward
Island
-
-
Newfoundland
and Labrador
The Privacy S. 3(1) It is a tort, actionable without proof of damage, for a
Act, R.S.N.L. person, wilfully and without a claim of right, to violate the
1990, c. P-22 privacy of an individual.
(2) The nature and degree of privacy to which an individual is
entitled in a situation or in relation to a matter is that which is
reasonable in the circumstances, regard being given to the
lawful interests of others; and in determining whether the act or
conduct of a person constitutes a violation of the privacy of an
individual, regard shall be given to the nature, incidence, and
occasion of the act or conduct and to the relationship, whether
domestic or other, between the parties.
S. 4 Proof that there has been
(a) surveillance, auditory or visual, whether or not
accomplished by trespass, of an individual, by any means
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including eavesdropping, watching, spying, harassing or
following;
(b) listening to or recording of a conversation in which an
individual participates, or listening to or recording of messages
to or from that individual passing by means of
telecommunications, otherwise than as a lawful party to them;
(c) use of the name or likeness or voice of an individual for the
purpose of advertising or promoting the sale of, or other trading
in, property or services, or for other purposes of advantage to
the user where, in the course of the use, the individual is
identified or identifiable and the user intended to exploit the
name or likeness or voice of that individual; or
(d) use of letters, diaries or other personal documents of an
individual,
without the consent, expressed or implied, of the individual or
some other person who has the lawful authority to give the
consent is, in the absence of evidence to the contrary, proof of a
violation of the privacy of the individual first mentioned.
S. 5(1) An act or conduct is not a violation of privacy where
(a) it is consented to by some person entitled to consent;
(b) the act or conduct was incidental to the exercise of a lawful
right of defence of person or property;
(c) the act or conduct was authorized or required under a law in
force in the province or by a court or a process of a court; or[...]
(2) A publication of a matter is not a violation of privacy where
(a) the matter published was of public interest or was fair
comment on a matter of public interest; or
(b) the publication was, under the rules of law relating to
defamation, privileged,
but this subsection does not extend to another act or conduct
where the matter published was obtained where the other act or
conduct was itself a violation of privacy.
Yukon
-
-
Northwest
Territories
-
-
Nunavut
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Appendix B: Remedies Under the Statutory Right of Privacy
Facts
Remedy
Pateman et. al. v.
Woman harassed ex-boyfriend and his new
Interlocutory injunction
Ross(1988), 68 Mr. R. wife with threatening phone calls, letters and
(2d) 181 (Man. Q.B.) visits.
Insurance Corp of
Insurance company investigator asked
$1,000 – General Damages
British Columbia v. invasive questions about car driver after
$1,000 – Punitive Damages
Somosh (1983), 51
accident, although the insurance company had
B.C.L.R. 344
no claim at law against driver
(B.C.S.C.)
Wasserman v. Hall, Claim for breach of privacy and nuisance;
$3,500 – General Damages
2009 BCSC 1318, 87 breach was described as “relatively minor”.
R.P.R. (4th) 184
Heckert v. 5470
Landlord placed a video camera in the hallway $3,500 – Nominal
Investments Ltd. 2008 of the building. Held that there was no
Damages
BCSC 1298, 299
legitimate reason for close-up imaging people
D.L.R. (4th) 689.
immediately outside their apartment doors.
Hollinsworth v.
Defendant released videotape of plaintiff
$15,000 – General
BCTV(1996), 34
having hair transplant surgery and media aired Damages
C.C.L.T. (2d) 95
video.
(B.C.S.C.), aff’d 1998
B.C.C.A. 304.
F. (J.M.) v.
Defendant published the name of complainant $3,000 – General Damages
Chappell,(1998) 45 in sexual assault case in breach of publication $15,000 – Punitive
B.C.L.R. (3d) 64
ban. Jury awarded $19,000 in damages, but
Damages
(B.C.C.A.), leave to the judge countenanced a defence of
$1,000 Non-pecuniary
appeal to SCC
publication privilege and reduced this to
Damages
refused, (1998), 231 $1,000.
N.R. 400.
Court of Appeal reinstated the jury award.
Lee v. Jacobson;
Landlord drilled a secret hold to spy on tenant. $2,000 – General Damages
Weber v.
Note: Findings of fact were overturned.
$22,500 – Punitive
Jacobson(1992), 87
Damages
th
D.L.R. (4 ) 401 (B.C.
S.C.), rev’d (1994),
D.L.R. (4th) 155
(B.C.C.A).
Watts v. Klaemt 2007 Defendant recorded the plaintiff’s telephone $30,000 – Actual damages
BCSC 662, 71
conversations and the reported the content to $5,000 – Punitive Damages
th
B.C.L.R. (4 ) 362.
the plaintiff’s employer. Plaintiff was then
fired.
Malcolm v.
Defendant landlord secretly videotaped
$15,000 – General
Fleming,[2000]
plaintiff while she was in her bathroom and Damages
Carswell BC 1316,
bedroom.
$35,000 – Punitive
(B.C.S.C.)
Damages
Nesbitt v.
Family dispute: defendant published private $40,000 – General
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Neufeld,2010 BCSC
1605, [2011]
B.C.W.L.D. 407.
44
documents, started websites, Facebook
Damages44
groups, sent letters to friends / colleagues /
professional associations accusing her of drug
abuse, suicide attempts, mental illness and
sexual promiscuity.
www.slaw.ca/2012/01/18/tort-of-invasion-of-privacy-in-ontario.
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Appendix C: Ontario damage awards
The Court of Appeal in the Jones v. Tsige case provided a helpful table of damages related to
privacy interests.
Facts
Details
Remedy
Saccone v. Orr
Played tape of private
Cause of action: Invasion $500 – General
(1981), 34 O.R. (2d) telephone conversation of privacy
Damages
317, (Ont. Co. Ct.)
aloud at municipal
Held: Defendant did not
council meeting without act with malice and
counsel.
proven damages were
minimal.
Provincial Partitions Persistent crank calls to Cause of action:
$1000 – General
Inc. v. Ashcor Inplant rival business.
Nuisance by invasion of Damages
Structures Ltd. (1993),
privacy.
50 C.P.R. (3d) 497,
(Ont. Gen. Div.)
Palad v. Pantaleon, Harassment of borrower Cause of action: Invasion $2,500 – General
[1989] O.J. No. 985, in an attempt to collect of privacy
Damages
(Ont. Dist. Ct.)
on a debt.
Lipiec v. Borsa
Surveillance of backyard. Causes of action:
$3,000 – General
(1996), 31 C.C.L.T.
Trespass and nuisance by Damages
(2d) 294, (Ont. Gen.
deliberate invasion of
Div.)
privacy
S. & A. Nagy Farm v. Malicious attempt to
Causes of action:
$4,000 – General
Repsys, [1987] O.J. persuade borrowers to
Defamation and invasion Damages (Husband
No. 1987,
amend mortgage
of privacy.
and Wife)
(Ont. Dist. Ct.)
agreement by
embarrassing and
harassing them.
Roth v. Roth (1991) 9 Interference with access Causes of action:
$20,000 – General
C.C.L.T. (2d) 141,
to cottage and with
Harassment, statutory
Damages
(Ont. Gen. Div.)
enjoyment of property. breach, trespass and
$5,000 – Exemplary
invasion of privacy`
Damages
Garrett v. Mikalachki Man harassed neighbour, Causes of action:
$25,000 – General
[2000] O.J. No. 1326, reducing neighbour’s
Defamation, intentional Damages
(Ont. S.C.)
enjoyment of property, infliction of emotional
and spread rumours about distress, nuisance,
the neighbour’s alleged invasion of privacy,
criminal past.
harassment.
Tran v. Financial
Repeated abusive calls to Causes of action:
$25,000 – General
Debt Recovery Ltd.
debtor and his work
Defamation, intentional Damages
(2000), 193 D.L.R.
colleagues regarding
interference with
th
(4 ) 168 (Ont. S.C.) repayment.
economic interests,
intentional infliction of
emotional harm, invasion
of privacy
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MacKay v.
Buelow(1995), 24
C.C.L.T. (2d) 184
(Ont. Gen. Div.)
©2012
Stalked former spouse.
Causes of action:
invasion of privacy,
trespass to person and
intentional infliction of
mental suffering and
emotional distress
Held: Defendant’s
actions were “calculated,
devilishly creative and
entirely reprehensible”.
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$25,000 – General
Damages
$15,000 –
Aggravated Damages
$15,000 – Punitive
Damages
$6,248 – Special
Damages
$44,000 – Costs of
future care