With increasing digitalization and the potential harm resulting
from violations of an individual's privacy or unauthorized
disclosure of one's personal information, employers must remain
diligent in efforts to collect, retain and disclose personal
information and promote a culture of respect regarding the privacy
of their employees.
In Canada, legislation affecting the personal information and
privacy of individuals exists at both the federal and provincial
levels. The legislation, in each case, attempts to balance the
privacy rights of individuals against other legitimate
interests.
In addition to provincial and territorial legislation protecting
privacy and personal information, the Ontario Court of Appeal
recently recognized the tort of inclusion upon seclusion (also
known as invasion of privacy) in Jones v Tsige.
Privacy Legislation
(a) Nova Scotia
In Nova Scotia, the Freedom of Information and Protection of
Privacy Act, SNS 1993, c 5 ("FOIPOP") governs
privacy in the public sector. FOIPOP applies to hospitals, public
bodies, universities and, as a result of incorporation through Part
XX of the Municipal Government Act, SNS 1998, c 18,
municipalities. FOIPOP addresses both access to records in the
custody or control of public bodies and the regulation of the
collection, use and disclosure of personal information by those
bodies.
Nova Scotia has specific legislation aimed at protecting personal
information from unauthorized disclosure outside of Canada. The
Personal Information International Disclosure Protection
Act, SNS 2006, c 3 ("PIIDPA") provides additional
protection for personal information collected, used, or disclosed
by public bodies and service providers who act on behalf of a
public body. If an individual, business, or organization is working
on behalf of a public body or municipality, the personal
information collected, used or disclosed in performing those
services may be protected under the PIIDPA. The PIIDPA makes it
illegal to disclose personal information outside of Canada, or
store personal information at, or allow it to be accessed from,
locations outside Canada, unless authorized by the head of a public
body or the responsible officer of a municipality if the storage or
access is deemed to meet the necessary requirements.
The Nova Scotia Information Access and Privacy Office is mandated
to assist public bodies in the application of both the FOIPOP and
the PIIDPA. Under s. 33 of the FOIPOP, the Governor in Council is
required to appoint a review officer to administer the FOIPOP and
the PIIDPA. In 2009, the Privacy Review Officer Act, SNS
2008, c 42 ("PROA") was proclaimed into law. The PROA
empowers review officers with the authority to investigate
complaints regarding how information shared with government or
public bodies is handled. This statute provides for independent
oversight with respect to all privacy decisions of public bodies in
Nova Scotia.
(b) New Brunswick
The Right to Information and Protection of Privacy Act,
SNB 2009, c R-10.6 ("RTIPPA") and the Personal Health
Information Privacy and Access Act, SNB 2009, c P-7.05
("PHIPAA") govern privacy in the public sector in New
Brunswick.
The RTIPPA came into force on September 1, 2010 and repealed the
Right to Information Act, SNB 1978, c R-10.3 and the
Protection of Personal Information Act, SNB 1998, c
P-19.1. The RTIPPA supports principles of openness and
accountability, while holding public bodies accountable by ensuring
that personal information in their care is securely protected and
handled. The RTIPPA applies to public bodies including government
departments, Crown corporations, regional health authorities,
municipalities and universities. The RTIPPA prescribes a detailed
framework for requesting information and mandates that public
bodies respond to requests for information and protect personal
information.
(c) Prince Edward Island
The Freedom of Information and Protection of Privacy Act, RSPEI 1988, c F-15.01 ("FOIPPA") was enacted on November 1, 2002. Similar to other provincial legislation regarding access to, and protection of, personal information, the FOIPPA provides both a means of requesting access to records of public bodies and guidelines for the use of personal information by the government. The Office of the Information and Privacy Commissioner enforces the FOIPPA and conducts independent reviews of decisions of public bodies under the statute.
(d) Newfoundland and Labrador
In Newfoundland and Labrador, the Access to Information and
Protection of Privacy Act, SNL 2002, c A-1.1
("ATTIPA") and the Personal Health Information
Act, SNL 2008 P-7.01 are the governing provincial legislation
regarding access to, and protection of, personal information and
personal health information. These statutes are similar in form and
function to the legislation in other Atlantic Canadian
provinces.
Newfoundland and Labrador's Privacy Act, RSNL 1990, c
P-22 provides individuals with a statutory cause of action in the
case that their privacy has been violated. This is essentially a
statutory tort for invasion of privacy. This legislation addresses
violations of privacy related to visual and auditory surveillance
and listening to or recording of conversations. Individuals are
responsible for enforcing claims under the Privacy Act -
the Office of the Information and Privacy Commissioner does not
pursue such matters. This legislation likely encompasses the
developing common law tort of invasion of privacy.
Legislation declared to be substantially similar to PIPEDA in Atlantic Canada
Private sector organizations in Atlantic Canada are governed by
the federal Personal Information Protection and Electronic
Documents Act, SC 2000, c 5 ("PIPEDA"). Under
paragraph 26(2)(b) of PIPEDA, the Governor in Council can exempt an
organization, a class of organizations, an activity or a class of
activities from the application of PIPEDA with respect to the
collection, use or disclosure of personal information that occurs
within a province that has passed legislation deemed to be
substantially similar to the PIPEDA.
The effect of the Orders in Council recognizing these statutes as
substantially similar is to exempt the legislation from Part 1 of
the PIPEDA in respect to the collection, use and disclosure of
information that occurs in those provinces.
In Atlantic Canada, both Newfoundland and Labrador and New
Brunswick have laws with respect to personal health information
which have been deemed to be substantially similar to PIPEDA. In
each instance, the statutes were deemed to be substantially similar
following a request for review from each province.
The regulatory process to obtain the Order in Council, for any
province, cannot begin until the provincial law is in force. Nova
Scotia's Public Health Information Act recently came
into force and is undergoing a review by the Privacy Commissioner
to determine its suitability for designation as substantially
similar to the PIPEDA. Prince Edward Island has no comparable
legislation at this time.
In Newfoundland and Labrador, the substantially similar
legislation is the Personal Health Information Act, SNL 2008, c
P-7.01 ("PHIA"). The PHIA came into force on April 1,
2011.
In New Brunswick, the substantially similar legislation is the
Personal Health Information Privacy and Access Act, SNB
2009, c P-7.05 ("PHIPAA"). The PHIPAA came into force on
September 10, 2010 and replaced the previous Protection of
Personal Information Act, SNB 1998, c P-19.1.
Both the Newfoundland and Labrador and the New Brunswick Acts
refer to health care providers as "custodians".
Custodians are individuals or organizations that handle personal
health information in order to provide or assist in the delivery of
health care. The list is broad and organizations which collect,
use, or disclose personal health information for the purpose of
health care should determine whether they fall within the
definition of custodian pursuant to the governing
legislation.
Despite the substantially similar exemption, PIPEDA continues to
apply to the collection, use or disclosure of personal information
in connection with the operations of a federal work, undertaking or
business in the respective province, as well as to the collection,
use or disclosure of personal information outside the province. It
also applies to personal health information collected, used or
disclosed by non-custodians. Agents of health information
custodians, who are brought within the purview of the Newfoundland
and Labrador PHIA and the New Brunswick PHIPAA in section 52 of
each Act, are also included in the PIPEDA exemption.
Nova Scotia's Personal Health Information Act, SNS
2010, c 41 came into force on June 1, 2013. This statute governs
the collection, use, disclosure, retention, disposal and
destruction of personal health information. The Nova Scotia
government expects that this legislation will be declared to be
substantially similar to PIPEDA in 2014.
Prince Edward Island's Health Information Act
received Royal Assent on May 14, 2014. The legislation is yet to be
proclaimed into force and, as such, the regulatory process to
obtain substantially similar designation has not yet begun.
Common law privacy: intrusion upon seclusion
The Ontario Court of Appeal recently confirmed the existence of
the tort of intrusion upon seclusion as a category of a broader
tort relating to invasion of privacy in Jones v Tsige. In that case, Tsige,
in her capacity as a bank employee, accessed Jones' personal
banking information on 174 occasions over a period of four years.
Although she did not publish or distribute it, she used the
information for her own purposes in a dispute with Jones'
partner, Tsige's former husband. Tsige apologized for her
actions and the court concluded she was embarrassed and
contrite.
In order to establish the tort of intrusion upon seclusion, the
Court of Appeal established a three-part test:
- The defendant's conduct must be intentional (which includes recklessness).
- The defendant must have invaded the plaintiff's private affairs or concerns without lawful justification
- A reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
In awarding damages, the Ontario Court of Appeal held that
damages are appropriate to remedy "intangible harm such as
hurt feelings, embarrassment for mental distress, rather than
damages for pecuniary losses," in an amount "sufficient
to mark the wrong that has been done". Jones claimed $70,000
in damages for invasion of privacy and exemplary damages of
$20,000. The court said the range of damages for this type of claim
is up to $20,000 and awarded Jones $10,000.
Justice Sharpe went further to qualify the new tort in order to
prevent the "opening of the floodgates" and said:
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 practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
Notably, proof of actual loss is not an element of the cause of
action.
The tort of intrusion upon seclusion established in Jones v Tsige
has been referred to in three recent Atlantic Canadian decisions
including Point Lodge Ltd. v Handshoe Trout.
Relying on Jones v Tsige, the court was
"satisfied that in an appropriate case in Nova Scotia there
can be an award for invasion of privacy." The facts in this
case are that Mr. Handshoe, on his blog, disclosed the business and
home address of one of the directors of the defendant corporation
and his location when he was on vacation. He also made
"extremely derogatory and homophobic comments of the most
outrageous kind" about the directors of the corporation and
their sexual orientation, including posting "doctored
photographs" of a sexual nature depicting them. Justice Hood
found that the case was not one which merited an award of damages
for invasion of privacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.