Mr. Turkson commenced proceedings against TD Waterhouse regarding his trading dealings with them, including claims for breach of contract, negligence, breach of fiduciary duty, breach of trust, fraud, wilful concealment and breach of privacy. In dismissing all of the claims, the BC Supreme Court also dismissed the privacy allegations.
Mr. Turkson alleged that TD Waterhouse invaded his privacy by tape recording his conversations with its representatives without his consent, and by publishing the transcript of those conversations without his consent or a court order.
In the decision, the Court found Mr. Turkson could not have any expectation of privacy in the recording of the discussions, given that he expressly consented to it in the Account Agreement he signed, which stated: ... You acknowledge and agree that your calls with us may be taped to enhance the overall quality of your client experience and to record the details of our conversations, including your trading instructions. ...
The Court focused on the consent based on s. 2(2) of the Privacy Act. There seemed to be no analysis of s. 1(2) regarding the nature and degree of privacy to which a person is entitled in the situation or in relation to a matter is that which is reasonable in the circumstances, saying: "The exception in the Privacy Act, s. 2(2)(a) applies such that whatever entitlement of privacy Mr. Turkson may have had, he waived any such entitlement by expressly consenting and agreeing to the recording of these conversations."
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