By Joe Thorne and Danielle Harris

After a brief two years of recognition in this province of a common law claim for breach of privacy, it seems its time has come to an end – for now.  

Background

Following a workplace harassment complaint against Steve Kent, the then-Chief Administrative Officer of the City of Mount Pearl (the “City”), Mr. Kent was placed on leave while the City undertook an investigation. When the investigation began, Mr. Kent returned his City-issued iPad. Upon return of the iPad, the City noticed that Mr. Kent’s Facebook messages would pop up as banner notifications. Apparently, Mr. Kent had changed his Facebook password, but the messages could still be viewed on the iPad.

The contents of the messages led to the City vacating two councilors’ seats, due to their allegedly inappropriate discussions with Mr. Kent about the harassment investigation.

These two councilors appealed the City’s decision to vacate their seats. As part of this appeal, the City was required to produce all relevant papers and documents. However, the councilors and the City disagreed about whether it was appropriate or permissible for the Facebook messages to be included as part of the record. Because the messages in question were found on Mr. Kent’s City-issued iPad, Mr. Kent was given leave to be an intervenor in the hearing that followed.

In an application within that appeal, Mr. Kent sought to have the Facebook messages removed from the record, or in the alternative, be protected under a seal or publication ban. At the same time, Mr. Kent had started his own claim alleging the City breached his privacy in reading and storing the Facebook messages.

The applications judge’s decision

Upon hearing Mr. Kent’s application within the councilors’ appeal, the Supreme Court of Newfoundland and Labrador held that:

1. a common law right of privacy and a related common law tort for intrusion upon seclusion exists in Newfoundland and Labrador;
2. that the City had breached Mr. Kent’s common law right of privacy;
3. that the City had committed a tort against Mr. Kent under the Privacy Act; and
4. the appropriate remedy for Mr. Kent was to exclude the Facebook messages from the Record in the councilors’ appeals. The applications judge reasoned that the City’s actions resulted in an abuse of process and that the only way to restore fairness in the proceeding was to exclude the Facebook messages.

The City appealed that decision.

The Court of Appeal decision

The Court of Appeal allowed the City’s appeal, and held that the applications judge made three errors:

1. the applications judge erred by deciding the wrong legal issues

The Court of Appeal held that the applications judge focused his analysis on whether the City infringed Mr. Kent’s privacy rights, instead of focusing on whether the Facebook messages should form part of the councilors’ appeal record and the privacy considerations for Mr. Kent in including those messages in the appeal record. 

The Court stated that in deciding the application, the applications judge’s role was to maintain the integrity of the councilors’ appeals to the greatest extent possible, while protecting Mr. Kent’s privacy to the appropriate extent in the circumstances. The Court made it clear that Mr. Kent’s privacy interest in the Facebook messages was not the sole, or even the primary, interest engaged with the councilors’ appeal proceeding.

2. the applications judge erred in considering the doctrine of abuse of process

The Court concluded that the applications judge had put the cart before the horse. By removing the Facebook messages from the appeal record, the applications judge effectively prevented the City from defending its actions in the appeal by removing the evidence forming the basis of their decision to vacate the councilors’ seats.

The Court held that the doctrine of abuse of process goes to the sanctity of the court’s adjudicative process, and is less focused on the parties’ personal interests.

Preventing the Facebook messages from going into the appeal record acted as a de facto stay of proceedings, despite a stay being reserved for the most extreme cases of abuse of process.

Such a remedy might be appropriate after a court conducts a balancing between a fair proceeding for the litigants and the public’s interest in having a proceeding decided on its merits. The Court concluded that the applications judge didn’t do that balancing.

3. the applications judge erred by recognizing a tort of intrusion upon seclusion in this province

While all these conclusions and their analysis are interesting, the third error of recognizing the tort of intrusion upon seclusion is the most interesting.

Despite the fact that Mr. Kent’s application was only made in respect of the content of the councilors’ appeal record, the applications judge determined that the new privacy tort of intrusion upon seclusion should be recognized in Newfoundland and Labrador in that context.

The tort of intrusion upon seclusion was first recognized in Ontario in 2012. In Ontario, there is no statutory privacy tort. As a result, there was a gap that left certain plaintiffs with no cause of action for intentional and unjustified breaches of their privacy.

This changed when the Court of Appeal for Ontario recognized the common law tort of intrusion upon seclusion in Jones v Tsige.[1] In that case, the defendant was a bank employee that used her work computer to access private information about her common-law partner’s former wife. Over the course of four years, the defendant accessed the plaintiff’s bank records 174 times. The Court of Appeal for Ontario decided that a cause of action at common law for intrusion upon seclusion should be recognized in Ontario. It outlined the elements of the new tort as follows:

• intentional or reckless conduct;
• An unjustified intrusion; and
• A reasonable person would find the intrusion to be highly offensive.

Until the applications judge’s decision, the status of the tort in Newfoundland and Labrador was “unsettled”. It had been addressed in other decisions, but never definitively recognized. The Court noted that this new tort has not been recognized definitively in any province that does not have a statutory cause of action for privacy breach.

The Court stated that generally, new torts should not be introduced to the common law when adequate remedies already exist to address the harm done.

The Court held that it was not necessary for the applications judge to recognize a new tort, and he erred in doing so.

The Court ultimately sent Mr. Kent’s application back to the Supreme Court for reconsideration in light of its decision.

The impact 

This appellate decision conclusively rejected recognition of the new common law privacy tort – but only on the facts and law as presented to the Court in this case. The Court did not close the door on recognizing intrusion upon seclusion generally in the future.

While the Court did not provide any official guidance on the availability of the new privacy tort, their decision gives some indication of how it might treat such a claim if it came before the Court on a proper appeal and factual record. The good news is that Newfoundlanders and Labradorians are not left without an action for breach of privacy – it’s in the Privacy Act.