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.,  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.,  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.