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Privacy - General

Privacy has undergone a lot of changes over the last generation or so, both statutory and in the common law. The common law has seen the development in Ontario of a new privacy tort ('intrusion upon seclusion': "Jones v. Tsige, 2012 ONCA 32 (CanLII)"), and the statutory law has seen the passage of Ontario's Freedom of Information and Protection of Personal Privacy, the Municipal Freedom of Information and Protection of Personal Privacy, the Personal Health Information Protection Act and the federal Personal Information Protection and Electronic Documents Act.

. Bagherian v. Aviva Insurance Company

In Bagherian v. Aviva Insurance Company (Div Ct, 2022) the Divisional Court held that a tribunal's power to make interim orders [SPPA 16.1] allowed orders requiring the applicant to sign consent forms for the purpose of SABS medical examinations, even though they require loss of privacy:
[18] Finally, the appellant takes issue with the authority of Vice Chair Hunter to order that he not dispute the form of the consent and that he be cooperative. Section 16.1 of the SPPA permits a tribunal to make interim orders, and the conditions imposed by Vice Chair Hunter were reasonable in the circumstances of this case. While the appellant asserts that he has rights under various statutes regulating privacy that led him to question the proposed consent forms, Vice Chair Hunter had the authority to require that the appellant cooperate by signing a consent form for the IE (see Coll v. Roberston, 2020 ONSC 383 at para. 16).
. Sherman Estate v. Donovan

In Sherman Estate v. Donovan (SCC, 2021) the Supreme Court of Canada considers the 'open court' principle, in the context of a newspaper reporting on estate proceedings. The case is a definitive statement by the court on this freedom of expression and privacy issue since Sierra Club of Canada v. Canada (Minister of Finance) (SCC, 2002). See paras 29-36 for a summary, with the 'Test for Discretionary Limits on Court Openness' at paras 37-45, and general comments on the issue of privacy at paras 46-85]:
[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.

[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.

[4] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probate proceedings — the concerns for privacy of the affected individuals and their physical safety — amount to important public interests that are at such serious risk that the files should be sealed. The parties to this appeal agree that physical safety is an important public interest that could justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should the files be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. The appellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threats individuals face as technology facilitates widespread dissemination of personally sensitive information. They argue that the Court of Appeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly the subject‑matter of a sealing order.

[5] This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files. The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness. After all, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy.

[6] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants.

[7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified.
. Jones v Tsige

In Jones v Tsige (Ont CA, 2012) the Court of Appeal held a new tort of privacy infringement (for some reason called: 'intrusion upon seclusion'). The ruling canvassed Canadian privacy legislation as follows:
(d) Legislation

(i) Acts relating to private information

[47] The federal and Ontario governments have enacted a complex legislative framework addressing the issue of privacy. [page256] These include Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"); Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A; Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56; Consumer Reporting Act, R.S.O. 1990, c. C.33.

[48] Tsige argues that it is not open to this court to adapt the common law to deal with the invasion of privacy on the ground that privacy is already the subject of legislation in Ontario and Canada that reflects carefully considered economic and policy choices. It is submitted that expanding the reach of the common law in this area would interfere with these carefully crafted regimes and that any expansion of the law relating to the protection of privacy should be left to Parliament and the legislature.

[49] I am not persuaded that the existing legislation provides a sound basis for this court to refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy. In my view, it would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt the development of the common law in this area: see Robyn Bell, "Tort of Invasion of Privacy -- Has its Time Finally Come?" in Archibald and Cochrane, eds., Annual Review of Civil Litigation (Toronto: Carswell, 2005), at p. 225.

[50] PIPEDA is federal legislation
dealing with "organizations" subject to federal jurisdiction and does not speak to the existence of a civil cause of action in the province. While BMO is subject to PIPEDA, there are at least three reasons why, in my view, Jones should not be restricted to the remedy of a PIPEDA complaint against BMO. First, Jones would be forced to lodge a complaint against her own employer rather than against Tsige, the wrongdoer. Second, Tsige acted as a rogue employee contrary to BMO's policy and that may provide BMO with a complete answer to the complaint. Third, the remedies available under PIPEDA do not include damages, and it is difficult to see what Jones would gain from such a complaint.

[51] The Ontario legislation essentially deals with freedom of information and the protection of certain private information with respect to government and other public institutions. Like PIPEDA, it has nothing to do with private rights of action between individuals.

(ii) Provincial Privacy Acts

[52] Four common law provinces currently have a statutorily created tort of invasion of privacy: British Columbia, [page257] Privacy Act, R.S.B.C. 1996, c. 373; Manitoba, Privacy Act, R.S.M. 1987, c. P125; Saskatchewan, Privacy Act, R.S.S. 1978, c. P-24; and Newfoundland, Privacy Act, R.S.N.L., 1990, c. P-22. All four Privacy Acts are similar. They establish a limited right of action, whereby liability will only be found if the defendant acts wilfully (not a requirement in Manitoba) and without a claim of right. Moreover, the nature and degree of the plaintiff's privacy entitlement is circumscribed by what is "reasonable in the circumstances".

[53] Under Quebec law, the right to privacy is explicitly protected both by arts. 3 and 35-37 of the Civil Code of Québec, S.Q. 1991, c. 64 and by s. 5 of the Charter of Human Rights and Freedoms, R.S.Q. c. C-12. See Robbins v. Canadian Broadcasting Corp. (1957), 1957 CanLII 430 (QC CS), 12 D.L.R. (2d) 35(Que. S.C.); Aubry v. Éditions Vice-Versa, 1998 CanLII 817 (SCC), [1998] 1 S.C.R. 591, [1998] S.C.J. No. 30; H. Patrick Glenn, "The Right to Privacy in Quebec Law" in Dale Gibson, ed., Aspects of Privacy Law: Essays in Honour of John M. Sharp (Toronto: Butterworths, 1980), at ch. 3.

[54] Significantly, however, no provincial legislation provides a precise definition of what constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes. The nature of these acts does not indicate that we are faced with a situation where sensitive policy choices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.


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Last modified: 15-11-22
By: admin