The Latest Word on Invasion of Privacy as a Tort in Canada: Macdonnell v. Halifax Herald Ltd.

Following an “emergency hearing held by telephone on [a] Friday night”, the Supreme Court of Nova Scotia recently refused to grant an injunction restraining the Halifax Herald from publishing a story using a five hour digital recording of a conversation between Minister Raitt and her former press secretary, Jasmine MacDonnell. This ruling is the latest to comment on the state of the potential common law tort for invasion of privacy in Canada.

Ms. MacDonnell, not Minister Raitt, commenced an action against the Herald and its reporter, Mr. Mahar. The common law tort of invasion of privacy was included in the claims advanced. The court addressed the privacy claim as follows:

14 Ms. MacDonnell relies on Somwar v. MacDonald’s Restaurants of Canada Ltd., [2006] O.J. No. 64, and its extensive review of authorities. Somwar concluded that a common law tort of invasion of privacy may be emerging in Canadian law. It is “not unheard of.” The court refused to strike a statement of claim based on the posited tort.

15 In Haskett v. Trans Union of Canada Inc., [2001] O.J. No. 4949, the court adopted a passage from Dean Klar’s text suggesting privacy is protected only under the traditional torts and legislation. But, Justice Cumming said there is “some recognition of invasion of privacy as an embryonic tort where there is harassing behaviour or an intentional invasion of privacy”. That seems to me a sound conclusion to be drawn from most of the cases reviewed in Somwar.

16 I agree with the submission for the Herald that the recorded conversation was not private because some or all of it was heard by a department driver.

17 Also, I have difficulty seeing Mr. Mahar’s June 2009 use of the recording as an intentional invasion of privacy. Privacy was invaded in January 2009 when the conversation was recorded, in February when the record was left in a press washroom, and in March when it was not retrieved as agreed. Ms. MacDonnell’s lack of knowledge that her recording device contained a record of the conversation cannot, to my mind, put Mr. Mahar in the position of an intentional invader.

The court ultimately concluded that the plaintiff had not raised a genuine issue to be determined under the first stage in the test for granting an injunction.

Paragraphs 16 and 17 of the reasons raise an interesting tension and may highlight an important difference between the common law privacy tort and the operation of Canadian privacy laws, including the Personal Information Protection and Electronic Documents Act.

First, whereas paragraph 16 of the judgment states that there was no privacy that could have been invaded because the conversation was “not private,” paragraph 17 states that “[p]rivacy was invaded in January 2009 when the conversation was recorded…” This apparent contradiction is not explained by the court. One might also question the court’s statement that the conversation was “not private” because the Minister’s driver was present. Presumably, the Minister’s driver was subject to strict obligations of confidence.

Second, in remarking that Mr. Mahar’s use of the recording was not an intentional invasion of privacy, the court highlighted a potential difference between a common law privacy claim and the operation of data protection laws. Canada’s data protection laws regulate the collection, use and disclosure of personal information. The court’s finding in MacDonnell v. Halifax Herald Ltd., however, suggests that the common law tort may only cover the collection stage, not subsequent use or disclosure. No doubt this implication may be called into question in future cases where intentional uses and disclosures of personal information are advanced as a basis for an invasion of privacy claim.

MacDonnell v. Halifax Herald Ltd., 2009 NSSC 187 (CanLII)

Comments

  1. Great post Alex.

    Your point about the difference between the rather strict right of control brought in by data protection legislation and the rather weak protection of the common law of privacy is right on the mark in my view.

    Funny enough, I attended an OBA dinner on search and seizure last night and left thinking about this very point. Professor Lisa Austin was there, and highlighted a comment made by the SCC in R. v. Mills in which the a majority of the SCC said, “Privacy is not an all or nothing right.” In that case, the majority held that an individual can maintain a privacy interest in information disclosed to the Crown under a condition of confidence. In this years’ SCC decision in R. v. Patrick, so Professor Austin says, the majority limited this concept to disclosures made in confidence. So when information in garbage, information stored on digital recorder or information posted on Facebook is not treated with a fairly high degree of care and control, the person to whom the information belongs loses a privacy claim, or in other words, loses all right to control the information.

    Compare that to the rock solid right of control purported to be guaranteed by data protection legislation like PIPEDA. So long as the information is “personal” the consent rule applies (subject, of course, to the narrow exceptions). The required form of consent turns on the “reasonable expectations” concept, but the statute doesn’t otherwise suggest that the right to control personal information is diminished as a result of poor management. Yet the consent rule doesn’t fit well in all contexts, so we see judgements in which courts strain to make sense of what is required. The employment context – where reasonableness makes more sense as a guide than consent – is the best example. The case I’m thinking of that illustrates discomfort is the Federal Court of Appeal’s Wansink v. Telus case.

    The wide difference in approach between the common law and statutory regimes is highlighted by MacDonnell. Perhaps there is a sensible middle ground framework that allows one to maintain control in information that is made somewhat available to the public? Seems to me that such an approach will have its own workability problems and is a long way coming.

    Thanks for the post!

    Dan

  2. I agree that it is absurd to say that a minister’s conversation is not private because it is held in a car with an official driver.

    I suppose privacy could be invaded by a recording not known to one of the parties – though when it’s recorded unknown to either, “invasion” seems a bit strong. Can you negligently invade someone’s privacy – including your own, if you are a party to the private conversation?

    If your privacy is “invaded”, does that mean that you lose any rights to keep the invaded event private from others? I can understand surrendering a privacy right, and I can understand having or not having a reasonable expectation of privacy. I do not understand how an accidental recording produces the same result.

    Can you negligently surrender your own privacy by not foreseeing a time-deferred electronic eavesdropper? It seems to me that the case is distinguishable from the person who says something in front of a microphone that he/she thought was turned off, and ends up broadcasting the speech intended to be private.

    It is beyond absurd to say that a person who listens to someone else’s recording (not broadcast) is not invading the privacy of the the parties to the recorded conversation, and a fortiori when the person publishes it. Listening to the recording (playing it) would be the equivalent of collecting the personal information; publishing it would be disclosure. Whether or not PIPEDA applies, the concepts are valid. They came out of the CSA Model Code – which could be an excellent source for a common law of privacy too.

    We’re a long way from “I couldn’t help overhearing …”.

    Nothing in this case raises Dan’s postulate of information that is made somewhat available to the public. I agree with him that creating a privacy rule to deal with such a situation would be difficult. The MacDonnell case presents no such difficulty.

  3. Hi John, and thank you.

    I should say that I too am puzzled (to say the least) by the limo driver finding, and its not the focus of my interest.

    I’m more interested in the treatment of the recording device after the reporter notified Ms. MacDonnell that it was lost and found. The record does not indicate that Ms. MacDonnell asked him not to listen – thereby imposing some sort of post hoc condition of confidentiality. The record does indicate she asked him to hold onto the recorder so she could pick it up, but never did. I think this is the source of the following comment by Moir J.:

    It is wrong to deprive the press, and the public it serves, of remarks made privately, but not confidentially in the sense of trade secrets or privileged communications, after those remarks became available because of poor record keeping or management.

    To me, this is the essence of the very cursory award. Note that Moir J. does acknowledge that the information is “private” in this quote, which seems contrary to his limo driver finding. This is why I think the case is either about (1) the treatment of the tape recorder after its loss was brought to Ms. MacDonnell’s attention; or (2) the public interest in the content of the communications. Both link to some pretty fundamental questions about the nature of privacy and the potential limit of a civil cause of action. The former that was the main issue underlying my comment, which I defend as valid.

    Glad this is getting a good flogging! Wonderfully interesting scenario and an important dialog.

    Dan