Canada: Federal Court Of Appeal Comments On New Tort Of "Publicity Given To Private Life", Overturns Certification Order

Last Updated: July 18 2016
Article by Emily MacKinnon

Most Read Contributor in Canada, September 2018

The Federal Court of Appeal has provided some guidance on the recently-recognized tort of intrusion upon seclusion and the as-yet-unrecognized tort of publicity given to private life.

In a class action decision largely reversing a Federal Court certification order, 2016 FCA 191, the Court of Appeal suggested that recognition of the tort of publicity given to private life may be just around the corner and provided some insight on what the test for such a tort might be. Notably, the Court held that the tort requires "publicity" of a broad scope—not merely to a small group. The Court also suggested that publication to persons with confidentiality obligations is not tortious.

The Court also reiterated that another privacy tort already established in Canadian law, intrusion upon seclusion, requires bad faith or reckless conduct, and that an isolated administrative error will not suffice. Companies can take comfort from the requirement for intentional conduct, but should remain cautious: while an "isolated" administrative error will not suffice, an adverse inference could potentially be drawn from a repeated error.

The facts: revealing return addresses

The class action was prompted by packages mailed to medical marijuana program registrants between November 12 and 15, 2013. Those packages were marked with a return address of "Marihuana Medical Access Program Health Canada". Apart from these packages—called an "administrative error" by the Deputy Minister of Health Canada—mail to program registrants was marked with only "Health Canada" as the return address.

A class action launched by two recipients of the packages was certified on July 27, 2015, by Phelan J. of the Federal Court. The class action raised the recently-recognized tort of intrusion upon seclusion and the as-yet-unrecognized tort of publicity given to private life, among other causes of action.

In a unanimous decision authored by De Montigny J.A. released June 24, 2016, the Federal Court of Appeal largely overturned the certification order, leaving the plaintiffs with a class action certified only in negligence and breach of confidence. In holding that the plaintiffs failed to plead material facts to support the other causes of action, the Court of Appeal cast light on the elements of the nascent tort of publicity given to private life, and reaffirmed the intentionality requirement for intrusion upon seclusion.

Publicity given to private life: a broad scale required

The Court of Appeal's decision not only imports the elements of the U.S. tort of publicity given to private life, but also relies on the U.S. interpretation of one of those elements.

Phelan J. initially certified the action for publicity given to private life—a tort as-yet-unrecognized in Canada, but with roots in the United States. The Court of Appeal agreed that the tort could exist, relying on the Ontario Court of Appeal's reasoning in Jones v. Tsige, 2012 ONCA 32 (recognizing the tort of intrusion on seclusion, discussed elsewhere on this blog). But De Montigny J.A. overturned Phelan J.'s certification of this cause of action, holding that the plaintiffs had failed to plead material facts that could support it.

De Montigny J.A.'s analysis is striking because it not only relies on the elements of the American tort, but also on the kinds of facts that could meet those elements. The U.S. tort requires "publicity" of a private matter:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

  1. a) would be highly offensive to a reasonable person, and
  2. b) is not of legitimate concern to the public.

The plaintiffs in this case pleaded publicity to Canada Post employees, friends and family of the program registrant, and persons in erroneous receipt of the packages. But De Montigny J.A. held, relying on U.S. law, that the "publicity" must be on a broader scale, and that the publicity pleaded in this case was insufficient. De Montigny J.A. also noted that Canada Post employees have obligations of confidentiality, suggesting—without providing authority for the suggestion—that disclosure to persons with confidentiality obligations is not tortious.

The Court's reasons suggest that the scope of this nascent tort will be restricted. As it was following Tsige, however, it remains unclear who could be liable as a publisher of private information, and whether this tort could apply to mass privacy breaches.

Nevertheless, companies should be alert to prevent any unauthorized publication of private matters, as the Court's decision suggests that recognition of the tort is merely waiting for the right set of facts.

Intrusion upon seclusion: not merely an isolated administrative error

De Montigny J.A.'s decision reiterates that the still-new tort of intrusion upon seclusion requires reckless or bad faith conduct: an isolated administrative error will not suffice.

Relying again on Tsige, De Montigny J.A. repeated that intrusion upon seclusion requires an allegation of bad faith or recklessness. He held that the plaintiffs had pleaded, at most, an "isolated administrative error". Such an error, he held, is a far cry from the intentional and repeated conduct in Tsige and could not possibly support a cause of action for intrusion upon seclusion.

The Court's emphasis on the requirement for recklessness or bad faith will be reassuring to those concerned about the potential scope of this new tort. But caution is still warranted. The Court took note of the difference in frequency between the mis-labelled packages—four days—and the conduct in Tsige—four years—leaving open the possibility that a repeated error, even an administrative one, might be viewed in a different light.

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