The recent case of Stevens v.
Walsh provides a useful reminder about the current
status of the tort of intrusion upon seclusion, more commonly
thought of simply as invasion of privacy. In one respect,
however, this case may push the boundary of the tort to a new
The tort of intrusion upon seclusion requires proof of three
elements. Firstly, the defendant's conduct has to be
intentional. Secondly, the defendant must have invaded the
plaintiff's private affairs or concerns without lawful
justification. Thirdly, a reasonable person would regard that
invasion as highly offensive causing distress, humiliation or
In this case, both the plaintiff, Mr. Stevens, and the
defendant, Ms. Walsh, were Air Canada pilots. Mr. Stevens was
in the process of getting a divorce from Mrs. Stevens. Ms. Walsh
and Mrs. Stevens were friends.
There is an Air Canada password protected website accessible
only to Air Canada employees showing pilots' schedules. A
pilot can add another pilot to a "friends list" so that
friends can check what that pilot's schedule is. Mr.
Stevens had added Ms. Walsh as a friend so that Ms. Walsh could
access Mr. Stevens' calendar.
In this case, Ms. Walsh testified that her friend, Mrs. Stevens,
had called her. Mrs. Stevens was very upset and indicated that
the extent to which her estranged husband worked was an issue in
her divorce case. Ms. Walsh assumed that Mrs. Stevens would
have access to her husband's schedules but Mrs. Stevens was so
frantic that Ms. Walsh, wanting to keep her friend calm, accessed
the site and sent Mr. Stevens' scheduling information to Mrs.
Stevens. Ms. Walsh subsequently swore an Affidavit setting
out the same information.
Mr. Stevens subsequently sued Ms. Walsh. Mr. Stevens'
complaint was not that Ms. Walsh had accessed Mr. Stevens'
flight schedule but rather that Ms. Walsh had passed that
information along to someone else.
The Court found that the tort of intrusion upon seclusion had
been committed by Ms. Walsh. The Court was satisfied that for
an employee to obtain information under the guise of review for
legitimate work related purposes and then use it by sharing it with
her colleague's estranged wife for use against the colleague in
a divorce proceeding, amounted to a significant invasion of
personal privacy which, on an objective basis, was highly
The interesting aspect of this particular case has to do with
the nature of the information itself. If the extent to which
Mr. Stevens spent time doing his job was an issue in the divorce
case, one would have thought that his work schedule would have to
have been produced in the litigation itself. Ms. Walsh
provided a copy of the schedule, or the information in it, only to
Mrs. Stevens. She did not make the information available to
anyone else. In this case, it would seem that Mrs. Stevens
ultimately would have been able to obtain that information anyway
and indeed, that Mr. Stevens would have been obliged by law to
According to this case, however, this additional aspect of the
matter is not relevant. Furthermore, the fact that Ms. Walsh
had been given permission by Mr. Stevens to access this information
was similarly irrelevant. According to this case, if a person
obtains information through lawful means and then disseminates it
to someone who otherwise would be entitled to it anyway, this can
still amount to unlawful conduct.
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.
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