Canada's New Tort of Privacy and Its Impact on Your Fraud Investigation

CANADA’S NEW TORT OF PRIVACY AND ITS IMPACT ON YOUR FRAUD INVESTIGATION

In a landmark decision earlier this year, the Ontario Court of Appeal recognized a new tort for breach of a right to privacy, and in the process has opened up a Pandora’s Box of potential liability for fraud examiners. Learn how to navigate the waters of this new Canadian tort and still achieve your investigative goals.

DAVID B. DEBENHAM, CFE, CMA Partner McMillan LLP Ottawa, Ontario Canada

David Debenham has been a practicing, commercial litigation trial lawyer for the past 23 years. He is a partner in the McMillan law firm’s Ottawa office.

David’s fraud practice eventually inspired him to become a Certified Fraud Examiner, and acquire his Diploma in Investigative and Forensic Accounting from the Rotman Business School’s Graduate Program at the University of Toronto (he was Valedictorian of his class). He has published a text directed at fraud investigators and expert witnesses called The Law of Fraud and the Forensic Investigator, along with the leading articles in the United States and Canada on the subject of detecting and reporting fraud in a law firm. He has spoken at ACFE chapter meetings in Ottawa, Toronto, and Saskatoon, as well as the ACFE national convention.

“Association of Certified Fraud Examiners,” “Certified Fraud Examiner,” “CFE,” “ACFE,” and the ACFE Logo are trademarks owned by the Association of Certified Fraud Examiners, Inc. The contents of this paper may not be transmitted, re-published, modified, reproduced, distributed, copied, or sold without the prior consent of the author.

NOTES A recent headline declared: “Ontario Employers Take Note: New Privacy Tort Created”1 One wonders why that headline did not similarly warn investigators of this new privacy tort, since an investigator will not be able to use the fact that they were working for another as a defence to a claim for invasion of privacy. The purpose of this article is to instruct investigators as to the parameters of this form of liability so that internal protocols can be adjusted accordingly.

Understanding the Influence of U.S. Law The U.S. Bill of Rights never refers to the concept of privacy, and yet privacy is said to be a constitutionally enshrined right south of our border. U.S. courts have interpreted the various enumerated rights in the Bill of Rights as specific examples of an overall concept of privacy, such that one speaks of the U.S. Constitution projecting a penumbra of privacy rights. Using that approach, U.S. tort law conjoined various established English torts under the rubric of a tort of privacy. The tort of privacy can really be seen as a “residual notion”2 that protects a concept of privacy, which does not fit neatly into one of the established torts but is seen as offensive to one’s right to be “let alone.” The residual right of privacy is not one tort, but four. The tort of privacy comprises four different kinds of invasion of four different interests of the plaintiff, which are described as follows:  Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs  Public disclosure of embarrassing private facts about the plaintiff

1www.mondaq.com/canada/x/162608/Privacy/Ontario+Employers+Tak e+Note+New+Privacy+Tort+Created 2 See Kalven Jr., "Privacy and Tort Law - Were Warren and Brandeis Wrong?", (1966), 31 Law & Con. Prob. 326 at p. 327.

NOTES  Publicity that places the plaintiff in a false light in the public eye  Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

As an example, an investigator hired by an employer finds the employee’s password, and goes onto his Facebook page, and appropriates a photo of the employee cavorting at a stripper bar at Aspen. The photo is then used to show that the employee is not really disabled. On cross-examination the employee explains that the photo was taken before his accident at work. The investigator’s taking of the photo is intrusion of seclusion, and the use of the photo is appropriation under the fourth branch of this tort. Also, the use of the photo to suggest that the employee was not really injured is the third branch of the tort, and the publication of the photo at a stripper bar may constitute a cause of action under the second branch of the tort.

The Canadian Reaction In the Commonwealth, the courts were content to attempt to stretch the various, established torts rather than follow the U.S. experiment. Thus a leading Canadian scholar would write:

“Despite some encouraging suggestions from a few courts, it would be fair to say that the Canadian tort law does not yet recognize a tort action for invasion of privacy per se. Rather, “privacy” rights have been protected under the umbrella of other traditional tort actions, and by legislative interventions. Several established torts protect privacy interests. The dignity of one’s person is protected by several torts, such as assault, battery, the intentional

NOTES infliction of emotional distress, and false imprisonment. One’s right to be left alone to use and enjoy property is protected by trespass, and nuisance. One’s reputation is protected by defamation. The right to the commercial exploitation of one’s “personality” and “goodwill” also has received protection. In Krouse v. Chrysler Can. Ltd., the tort of “appropriation of one’s personality”, fashioned from an action on the case, was recognized by the court. Another area of growing importance which protects privacy interests is the law relating to liability for breach of confidence. In view of these alternatives, is a separate tort of “invasion of privacy” necessary? It is arguable that it is not. The concept of privacy is too ambiguous and broad to be able to be covered adequately in one cause of action. It is desirable to have the different aspects of privacy protection dealt with in separate torts which more clearly can focus on the interests at hand. Gaps in the law which cannot be filled by extending traditional principles can be dealt with as they arise, either through the expansion of the common law or by legislative intervention.”3

The result is that in Canada anyone who wanted to sue an investigator, and thereby the investigator’s employer, had to rely on the usual tort claims. The usual claims were:  Trespass to the person includes assault, which is any act of such a nature as to excite an apprehension of

3 L. Klar, Tort Law, at p. 56

NOTES battery. Battery is any intentional and unpermitted contact with the plaintiff’s person or anything attached to him and practically identified with him. False imprisonment is the unlawful obstruction or deprivation of freedom from restraint of movement. Thus an aggressive use of the REID interrogation technique, or the interrogator standing between the suspect and the door, could lead to a claim. The tort of intimidation might also be added to this list.  Trespass to chattels, also known as trespass to goods or trespass to personal property, is defined as an intentional interference with the possession of personal property. Trespass to chattel does not require a showing of damages. Simply the intermeddling with or use of the personal property of another gives cause of action for trespass. Thus the inspection of a computer or a briefcase, or any other personal property that is lawfully in the possession of the suspect may give rise to a claim.  Trespass to land is today the tort most commonly associated with the term trespass; it takes the form of wrongful interference with one’s possessory rights in real property. Generally, it is not necessary to prove harm to a possessor’s legally protected interest; liability for unintentional trespass varies by jurisdiction. At common law, every unauthorized entry upon the soil of another was a trespasser. Thus entering into the office space of a suspect who was an independent contractor may give rise to a claim.  Conversion is a voluntary act by one person inconsistent with the ownership rights of another. Thus taking “evidence” that belongs to the suspect may give rise to a claim, along with a claim for detinue, which is the claim for the wrongful refusal to give back property to the person lawfully entitled to possession of it.

NOTES  The tort of unlawful interference with economic relations requires that the plaintiff prove that: (a) the defendant intended to injure the plaintiff; (b) the defendant interfered with the plaintiff’s economic interest by illegal or unlawful means; and (c) as a result thereof, the plaintiff suffered economic loss.  The tort of inducing breach of contract requires (a) a valid and enforceable contract between the plaintiff and a third party; (b) the defendant knew of that contract; (c) the defendant intended to bring about the breach of that contract; (d) the defendant’s conduct caused a breach of that contract; (e) the plaintiff suffered damage as a result of the breach of that contract; and (f) the defendant did not have a lawful justification for its conduct, then the defendant has committed the tort of inducing breach of contract.  In these two previous torts, the investigator who persists in making accusations against a suspect (a) without any substantial evidence or (b) in the face of substantial evidence to the contrary that results in the suspect’s dismissal is likely to face these claims.  Defamation—in the form of slander (for transitory statements) and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual or business a negative image (called injurious falsehood). The allegation must be false and that the publication is communicated to someone other than the person defamed (the claimant). Thus imputing fraud to a suspect who later is exonerated often will result in claims of this sort. The tort of injurious falsehood (also known as trade libel) consists of the malicious publication of a falsehood concerning the plaintiff that leads other persons to act in a manner that causes actual loss, damage, or expense to the plaintiff. Injury to

NOTES reputation is not a necessary element to this tort. The plaintiff may sue for interference with any potential advantage including those of a non-commercial nature. A common claim, however, is that the injurious falsehood amounts to a disparagement of the plaintiff's property, products, business, or services, which affects their marketability. The plaintiff has the onus of proving that: the statements were false; the defendant acted maliciously with intent to cause injury without lawful excuse; and actual economic loss has occurred or will occur as a result. A plaintiff or its products normally must be identified by name in the impugned publication, but identification by implication may be sufficient, such as where the plaintiff enjoys almost exclusive dominance of the market. The investigator who wrongfully impugns a company, or its products or service, can expect this type of claim.

Intrusion Upon Seclusion Surreptitiously Enters into Canadian Law While Canadian Courts would not recognize the tort of evasion privacy directly, the “penumbra” of that tort has existed in our law for a considerable time. For example, in Motherwell,4 the Court upheld an injunction to stop the defendants’ persisting and annoying telephone calls to the plaintiff. While the Court recognized that the tort of nuisance did not normally extend to this behaviour, the Court also indicated that there will be judicial creativity if circumstances warranted to find a remedy for unacceptable intrusion into one’s privacy unfettered by technicalities of existing tort law. In this case, the Court refused to be bound by existing principles that nuisance was simply a real estate–oriented tort.

4 (1976), DLR (3d) 62 (Alta. CA).

NOTES In Saccone5 the plaintiff complained about the defendant recording telephone conversations without his consent and, despite warnings that such recordings took place, they were improper. The defendant continued this conduct, arguing that there was no such thing as the tort of invasion of privacy. The Court awarded damages on the grounds that there was such a tort “… for want of a better description …” given the plaintiff’s express prohibition on a tape recording.

In Lipiec6 the Court was concerned with feuding neighbours, where one neighbour decided to install a surveillance camera on this property for the sole purpose of annoying the plaintiff. In this case, the Court found an intentional invasion of the defendant’s right to privacy, one of the very few explicit references to that right as an independent right.

In Roth v. Roth,7 there was a dispute over access to a cottage and there were allegations of verbal harassment, trespass, and various other behaviours. The Court held that the defendants’ acts constituted a harassment of the plaintiffs’ enjoyment of their property. The Court also found that the defendants’ actions amounted to an invasion of the plaintiffs’ privacy and rejected the defendant’s view that privacy flowed from property rights, thereby balancing the rights of the parties and what was considered reasonable behaviour, which are borne from the laws of negligence.

A similar balancing act took place in R. v. Dieleman,8 (where the Court dealt with an intrusion of privacy rights of

5 (1981), 19 CCLT 37 (Ont. Cty. Ct.). 6 (1996), 31 CCLT (2d) 294 (Ont. Gen. Div.). 7 (1991), 4 O.R. (3d) 740 (Gen. Div.). 8 (1994), 20 OR (3d) 229 (Sup. Ct.).

NOTES an abortion clinic and balanced the right of privacy with the attendees versus the right to freedom of speech for those who oppose abortions. While the Court noted that it “cannot speak with confidence of a Canadian tort or invasion of privacy,” the Court certainly treated the matter as if there was one.

In Valiquette9 a reporter wrote a front-page story about the plaintiff who had AIDS. As in Deileman, the Court balanced the privacy right versus the right of the public to know freedom of expression.

The most explicit and sustained recognition of the right to privacy appeared in Somwar10 (where the plaintiff learned that the defendant had conducted a creditor and credit check on him without his permission. In this case, the Court recognized that while the Charter did not apply to private individuals, the Court viewed an individual’s rights to dignity and privacy as “Charter values,” which should be recognised by common law:

“… advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would

9 (1991), 8 CCLT (2d) 302. 10 (2006), 76 OR (3d) 172.

NOTES be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence. … the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff's action cannot succeed on the basis that he has not pleaded a reasonable cause of action”.

The reference to harassment refers to cases such as Tran v. Financial Debt Recovery Ltd.,11 where the defendant debt collection agency failed to provide the plaintiff with the amount outstanding on student loans and was allegedly content to harass him at his workplace for repayment rather than conducting discussions at his home address, which was provided to the creditor.12

In Nitsopoulos v. Wong et al.,13 the Globe and Mail published a series of articles authored by the defendant Wong titled “Maid for a Month.” The series discusses Wong’s experiences working as a maid for a cleaning service in Toronto. The plaintiffs were identified as one of Ms. Wong’s clients, and it portrayed them in a disparaging light. The article was not alleged to be defamatory. The plaintiffs alleged Wong’s unlawful conduct in gaining entry to their home by deceit resulted in personal harm and damages. The plaintiffs alleged that Wong only gained access to the plaintiffs’ home because she falsely represented herself to be a maid rather than as a journalist and she failed to disclose her true purpose for being in the

11 [2000] O.J. No. 4293 (S.C.J.) (reversed on other grounds, [2001] O.J. No. 4103 (Div. Ct.)). 12 Also Capan v. Capan, [1980] O.J. No. 1361 (H.C.J.). 13 2008 et al. 298 DLR (4th) 265 (Ont Sup.Ct.).

NOTES plaintiffs’ home. The Statement of Claim pleaded that her fraudulent misrepresentation was made with the intention of deceiving the plaintiffs and that Wong knew they would not have permitted her in their home with the opportunity to observe private details of their life but for the misrepresentation. The plaintiffs claimed they suffered damage as a result of this intrusion into their private lives, including, “harm to their dignity interests and personal autonomy,” their “personal and home security,” as well as their mental well-being. In other words, the plaintiffs felt violated by the deceptive means Wong used to gain access to their home and their lives.

In this action, the plaintiffs stated that Wong intruded into their seclusion and private affairs with the full knowledge and consent of the newspaper, breaching their reasonable expectation of privacy within their own home and with respect to their personal information. They claimed that as a result of Wong’s intrusion and surveillance, they have suffered personal injury that includes harm to their dignity interests, personal autonomy and that they have experienced embarrassment and mental distress.

Public disclosure of embarrassing private facts about a person has resulted in damage awards, even where the facts disclosed are true and not libelous or defamatory. The court

recognized that Charter values will take into account the privacy interests of the plaintiffs, but also the ability of investigative journalists to play their role in a free and democratic society. Where to draw the lines when Charter values “butt up against one another” were left to the trial judge in this case.

NOTES The New Canadian Tort of Invasion of Privacy In Jones v. Tsige,14 the plaintiff and the defendant worked at different branches of the Bank of Montreal (BMO). The plaintiff did all her personal banking with BMO. Over the course of four years and on 174 occasions, Ms. Tsige accessed and reviewed on her computer screen at work, Ms. Jones’ private banking records. After being caught doing this by BMO, the defendant acknowledged that she had no legitimate purpose in reviewing the plaintiff’s records, having done it for personal reasons. The defendant was involved in a personal relationship with the plaintiff’s former husband, and was trying to ascertain whether he was paying child support to the plaintiff as he claimed. Both parties asked for summary judgment on the plaintiff’s claim for invasion of privacy.

The Ontario Court of Appeal confirmed that the U.S. law regarding the tort of invasion of privacy was part of Canadian law. Indeed the court cited the U.S. Restatement (Second) of Torts’ formulation of the tort of intrusion of seclusion:

“One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

The key features of this cause of action are: first, that the defendant’s conduct must be intentional, which includes recklessness; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard

14 2012 ONCA 32 rev’g 2011 ONSC 1475.

NOTES the invasion as highly offensive, causing distress, humiliation, or anguish. 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 practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable-person standard, can be described as highly offensive. Proof of harm is not an element of the cause of action. However, given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. No right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.

In this case there were no competing claims to balance. The court was of the view that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done, and fixed the upper range at $20,000.

In the case, the factors favouring a higher award were the fact that the defendant’s actions were deliberate, repeated, and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. The plaintiff was therefore foreseeably very upset by the intrusion into her private financial affairs. On the other hand, the factors limiting the award were (a) the plaintiff suffered no public embarrassment or harm to her health,

NOTES welfare, social, business or financial position, and (b) the defendant has apologized for her conduct and made genuine attempts to make amends. On balance, the court awarded $10,000.

The Principles of Privacy As set out in the Appendix A and B to this paper, some provinces have recognized a right to sue for privacy. The common law tort of privacy and statutory right of privacy are likely to be guided by the following principles:  The right to privacy has four dimensions: (1) physical or bodily privacy, (2) territorial privacy, (3) privacy of communication, and (4) information privacy.15  “Personal privacy” reflects the right an individual has to control their physical person, and as such, is given a high level of protection by the courts. “Personal” in this context is not a synonym for “private”, but refers to one’s physical person. Personal privacy protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal. The right to personal privacy protects against unreasonable searches of one’s body, the taking of blood or tissue samples, and other physically invasive searches  “Territorial or spatial privacy” recognizes an individual’s privacy interests in a particular geographical space. For example, a person has a strong privacy interest in their home, as it is the place where our most intimate and private activities are most likely to take place. While apartment- dwellers will have a privacy interest in their apartments, a home owner’s privacy interest extends to the surrounding land also owned. Spaces

15 R. v. Dyment, [1988] 2 S.C.R. 417.

NOTES other than the home that have privacy significance may also be given some protection. Such spaces might include a car, hotel room, rented locker, or even spaces occupied by one’s belongings such as a purse or backpack. Territorial privacy only protects a particular space as it relates to an individual. In other words, privacy protects people not places. Even though territorial privacy case law identifies and assesses the reasonable expectation of privacy in the context of a particular space, the existence, or location of that space is not inherently private. What takes place within one’s home may be considered highly private, but the location of one’s home—the street address—is information in the public domain. Location information as such is not typically protected by notions of territorial privacy. It is considered to have privacy dimensions only to the extent that it is personal information and, hence, it is typically considered under an “informational privacy” analysis.  “Privacy of communications” traditionally addressed the right to send and receive mail or make phone calls on land lines without interceptions. Where cell phones do not require “bugging,” and emails are transmitted through the Internet, the concept of privacy of communications has had to adopt. Email security depends on the email service provider and how it is set up. As a general legal matter, personal email should be private. Most people trust that their emails are not being read, but when people feel that their right to keep their emails private is being violated, email privacy takes effect. Privacy laws concerning workplace email are different. A corporate employer might have company-wide rules permitting the company to read email sent or

NOTES received through the company’s email service. If an employer has policies that lead employees to think that email communication through the company’s email service is allowable for private purposes and not for business purposes only, then the rights of the employer might be limited when it comes to monitoring emails.  “Informational privacy” reflects privacy interests beyond our bodies and the places where we live and work. Although physically unbounded, “information” about oneself and the ability to control it is central to dignity and integrity. Territorial privacy protection does not necessarily extend to spaces occupied by virtue of relationships, however intimate, such as the car of a close friend or a girlfriend’s apartment. Informational privacy raises the question of how much information about ourselves and our activities we are entitled to shield from the curious eyes. The nature and level of the informational privacy interest is very data and context specific. For some time, Canadian courts have focused on giving the highest level of protection to a biographical core of personal information, according little weight to other forms of personal information. This biographical core of information being information that individuals in a free and democratic society would wish to maintain and control from dissemination, being information that tends to reveal intimate details of the lifestyle and personal choices of the individual.  A person’s privacy interest must be reasonable in the circumstances, with due regard being given to the lawful interests of others. Where a litigant does not have a “Charter right” engaged because no governmental actor is involved, that litigant can still argue that the common law must develop in a way that

NOTES is consistent with “Charter values.” Therefore, in the context of civil litigation involving only private parties, the Charter will “apply” to the common law only to the extent that the common law is found to be consistent with Charter values. The common law defining the tort of invasion of privacy must develop in a way that reflects emerging Charter values. Thus a court will accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict in a civil case, but the court need not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of her litigation. Thus a court must be satisfied that the defendant’s actions and production of a video surveillance tape, for example, reflect Charter values, by considering the means used, and by considering a balancing of the privacy interest of the plaintiff against the right of the defence to fully defend its case in litigation and to have equal benefit of the law bearing in mind the overall goal of the trial process is to discover the truth.16  While privacy has a subjective element in the sense that the individual must show some indication, express or implied, that they treat the information as private, the suspect does not get to determine the boundaries of the right to privacy. The subjective element is only one element in the right. The labelling of items as “confidential,” or attempting to delete items from one’s computer, must give one pause, but it is not dispositive of a right to privacy. “A defendant’s attempt to secrete evidence of a crime is not synonymous with a legally cognizable expectation of privacy. A mere hope for

16 Druken v. RG Fewer & Associates Inc. [1998] N.J. 312 (S.C.).

NOTES secrecy is not a legally protected expectation. If it were, search warrants would be required in a vast number of cases where warrants are clearly not necessary.”17  An assessment must be made as to whether in a particular situation the public's interest in being left alone must give way to the public’s interest in intruding on the individual's privacy in order to advance its goals. This assessment must be made in light of the totality of the circumstances of a particular case to see if there was a reasonable expectation of privacy in the circumstances. The privacy right protects people, not places. Thus one can never lose focus on the reasonable expectation of the individual’s right to privacy without being caught up in questions of whether that individual had propriety or possessory right to the place in question. A proprietary or possessory interest could properly be considered as evidence of that personal right. Thus ownership or a right to possession of a personal computer may be evidence of a right to privacy in its contents, the lack thereof does not mean that the individual does not have a privacy right to the contents of the computer itself. As one court has noted: A person’s computer is a highly personal storage instrument. Many cases have concluded that an extremely high level of privacy is expected regarding the contents.18

In R. v. Cole,19 a teacher had a reasonable expectation of privacy where the laptop was owned by the school board and was issued for employment purposes. Furthermore, the server, network and data belonged to the school board. However, the teachers were granted exclusive possession of

17 Comm of Pennsylvania v. Copenhefer, 587 A 2d 1353, 526 Pa 555, at 562 (1991). 18 Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311. 19 2011 ONCA 218 (CanLII),leave to appeal to SCC granted 2011 CanLII 65604 (SCC).

NOTES the laptop, including during weekends and vacations, and were permitted to use the laptop for personal use. The teacher actually used the laptop for personal use as evidenced by the presence of photographs of his wife. He had the right to keep the laptop in his possession and he protected access to the computer by a password. He had a subjective expectation of privacy. Since other teachers also used their computers to store sensitive personal information, such as banking and financial information. The conventions and customary use by teachers were consistent with a reasonable expectation of privacy. Furthermore, there was no clear privacy policy relating to teachers’ laptops. The only privacy provision in the Policy and Procedures Manual related to email; it emphasized that attempts would be made to request the user’s permission if access was required for system/trouble-shooting purposes. It did not provide for the monitoring or search of the teachers’ laptops. Finally, the fact that a computer technician could access the hard drives of the laptops does not negate a reasonable expectation of privacy, just as the existence of a master key does not destroy the reasonable expectation of privacy in a rented apartment, hotel room, or in a bus locker. The absence of an exclusive right of access did not undermine an expectation of privacy. In R. v. Little, 20the application judge held that the accused had a reasonable expectation of privacy in the information on his work hard drive, but it was a diminished expectation compared to that in a home computer or a computer owned and used exclusively by an individual running his or her own business. In France (Republic) v. Tfaily21 the court noted that university professors are entitled to use their work computers for personal communications and research and that therefore they have an objectively reasonable expectation of privacy in relation to personal electronic

20 2009 CanLII 41212 (ON S.C.). 21 2009, 98 O.R. (3d) 161 (C.A.) [In Chambers].

NOTES data. Thus in this case, the accused had a reasonable expectation of privacy in the personal use of his work laptop. Although this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and permission to take the computers home on evenings, weekends and summer vacation. The teachers used their computers for personal use, they employed passwords to exclude others from their laptops, and they stored personal information on their hard drives. There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops. The information in the folder stored on the hard drive was not in public view, was not abandoned and was not in the hands of third parties. While the access by the technician for the purpose of maintaining the integrity of the system was not intrusive or objectively unreasonable, access by a state actor for the purpose of determining the nature of the information stored by the appellant would be intrusive. Access to that information on the hard drive potentially exposed intimate details of the appellant’s personal choices and could have exposed intimate details of a personal nature. The accused therefore had a reasonable expectation of privacy in both the hard drive of the laptop and the personal information it contained beyond what was expected of a typical search by a technician would be an invasion of privacy. On the other hand, where photos of child pornography appear in plain view upon a routine search of the computer by the technician for unstable files or other technical problems, the technician is acting with the tacit consent of the employee when he does such searches and finding photos of child pornography in plain view incidental to the technician’s duties is not an invasion of privacy. It is only when the evidence accidentally uncovered in the ordinary course changes the role of the

NOTES technician from repair person to investigator that Charter rights are engaged and allegations of invasion of privacy may be properly made.  The courts can look at several factors in assessing the totality of the circumstances that may lead to a reasonable expectation of privacy, including the following: (i) the individual’s presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. 22 Another way of looking at it is to ask the following questions: (1) What was the nature or subject matter of the evidence? (2) Did the plaintiff have a direct interest in the contents? (3) Did the plaintiff have a subjective expectation of privacy in the informational content? (4) If so, was the expectation objectively reasonable? In this respect, regard must be had to: a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate

22 R. v. Edwards, [1996] 1 SCR 128.

NOTES details of the appellant’s lifestyle, or information of a biographic nature.23  In terms of scope, an investigating party should understand that the tort includes not only physical intrusions but also listening or looking, into a person's private affairs, opening private or personal correspondence, intercepting communications, or examining a private bank account. The new tort specifically recognizes a person's right to informational privacy (as distinct from personal and territorial privacy) including sensitive health information, sexual orientation, employment information, diary or private correspondence, information indicating where a person lives, or any communications by cell phone, e-mail or text message.24  In determining whether the evidence gathering technique is inherently unreasonable, the courts are likely to consider analogies to a police officer proceeding to search without a warrant. The reasonableness of a warrantless search can be established in several other ways, (a) there is consent to the search; (b) the police come upon evidence in the course of their duties or unexpectedly and that evidence is in plain view (under the “plain view doctrine”); (c) the search is incident to arrest; (d) the search is incident to detention; or (e) the search is ancillary to the common law police powers and duties to keep the peace and preserve life. In a civil context only (a) and (b) are analogous. Other issues will relate to whether the was a need to immediately gather and preserve evidence because an emergency court order ex parte was not available in the circumstances, or whether the

23 R v. Patrick, [2009] 1 Scr 579, at para 27. 24 M. Mysak et al., “The Need to Know versus the Right to Intrude: A Caution on Fraud Investigation,” July 05, 2012; www.bennettjones.ca/Publications/Updates/The_Need_to_Know_Vers us_the_Right_to_Intrude__A_Caution_on_Fraud_Investigation/

NOTES investigator was proceeding under a mistake of fact, law, or under a colour of right.  A person’s entitlement to privacy is highest where the expectation of privacy would be greatest. Therefore, a person’s expectation of privacy would be highest in one’s home.  There is no reasonable expectation of privacy for actions taking place in public. Even if actions take place on private property, the circumstances may suggest that there is not a reasonable expectation of privacy. It is generally permitted to videotape a plaintiff in a public place or a place visible to the public such as a parking lot or the front yard of one’s house 25  The Canada Labour Code, the federal and provincial human rights and labour codes and collective agreements between labour and management may each affect the issue of whether employee searches are reasonable or an invasion of privacy. Generally, employers have no greater right than other citizens to search someone's personal belongings or body without justification or permission. An attempt to search someone's body without their permission invites a claim of assault. A search of a worker's gym bag without permission invites a claim to trespass. While an employer usually cannot search a person's body, it may be quite reasonable for a manager who suspects theft, substance abuse or some other misdeed on the job to ask the employee for his or her co-operation in emptying pockets, purses or knapsacks. The employee does not have to comply, and persistence in the request may vitiate the voluntariness of any permission that may eventually be obtained.  Even where only the common law of privacy is involved, looking at legislation in other jurisdictions

25 Milner v Manufacturers Life Insurance Company, 2005 BCSC 1661 (CanLII).

NOTES will assist you and your counsel in determining the line where privacy rights begin to be implicated. So, for example, The Freedom of Information and Protection of Privacy Act of Saskatchewan26 (FOIP), has defined “personal information” about an identifiable individual that is recorded in any form and includes a name, race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, age, nationality, ancestry or place or origin, education, criminal, employment or financial history, health history or health care received, an identifying number or symbol, contact information (home or business address, phone number), fingerprints, blood type, confidential correspondence to a local authority (except if it is about your views or opinions about another), opinions of another about you, your personal opinions (unless about another person), information on a tax return, and information describing someone’s finances, assets, liabilities or credit worthiness. FOIP also lists items which are excluded from the definition of personal information.6 Personal Information does not include the classification, salary of officer or employee (past or present); personal opinions in the course of work (other than about another person); details of a contract for personal services; details of a license, permit or discretionary benefit/financial benefit granted by a local authority to an individual; traveling expenses of individual paid by a local authority; academic ranks or departmental designations of members of faculties of the University of Saskatchewan and the University of Regina; degrees, certificates, or diplomas and discretionary benefits. So too Article 36 of the Quebec Civil Code when it advises that the following acts, in particular, may be considered as invasions of the

26 S.S. 1990-91, c. F-22.01.

NOTES privacy of a person: 1) entering or taking anything in his dwelling; 2) intentionally intercepting or using his private communications; 3) appropriating or using his image or voice while he is in private premises; 4) keeping his private life under observation by any means; 5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public; and 6) using his correspondence, manuscripts or other personal documents. The Appendix may be referred to for further guidance in this area.  The criminal law can also provide guidance. Thus entering into a home under pretext is both illegal, and likely an invasion of privacy. Thus section 350 of the Criminal Code provides that for a person shall be deemed to have broken and entered, or have been unlawfully in a dwelling place if (i) he obtained entrance by ….an artifice.” An “artifice” is a contrivance or device; used to refer to fraud or deceit, or a lever plan or idea, intended to deceive. Thus an investigator using deceit to gain access to premises and obtain physical evidence therein may not only be convicted of breaking and entering and unlawfully entering a dwelling, she may also be liable for invasion of privacy. So too the offence of unauthorized use of computer is created by s.342.1 of the Criminal Code that provides that every one who, fraudulently and without colour of right, (a) obtains, directly or indirectly, any computer service, (b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system, or (c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 (mischief) in relation to data or a computer system, or (d) uses, possesses, traffics in or permits another

NOTES person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction. Thus a computer forensics person who accesses personal data surreptitiously may not only be liable for invasion of privacy but guilty of a criminal offence. The criminal nature of the enterprise forecloses any “balancing” of the public’s right to know and a fair trial and a right to privacy—public policy has made the act in question criminal, and almost by that fact alone, an invasion of privacy.  Consent to what would otherwise be an invasion of privacy must be based on sufficient and accurate information being provided to the plaintiff so that any right has been validly waived.27  The plain view doctrine is not a license to computer and phone forensic people to search everywhere. Where a computer technician ordinary reviews an entire hard drive as part of his or her job, and discovers something illegal, that may be in “plain view”, but a subsequent search of temporary files that ordinarily would not have been undertaken may be an invasion of privacy even though it is not password protected.28  Ordinarily commercial transactions are not subject to claims of invasion of privacy. Thus the Plaintiff’s cheques, for example, ordinarily would not be considered private. Unless the commercial item such as an invoice provided insight into intimate details of the lifestyle and personal choices of the individual they are not private. So too, computer records revealing the

27 R. v. Borden, [1994] 3 S.C.R. 145. 28 W. MacKinnon, “Section 8 meets the iPhone” (2011) 84 C.R. (6th) 232.R v. Cole [2011] ONCA 218.

NOTES pattern of electricity consumption in the residence going to show that an illegal “grow up” was likely on the premises cannot reasonably be said to reveal intimate details of the plaintiff’s life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence. Moreover, the nature of the relationship between the home owner and the electric company cannot be characterized as a relationship of confidence. The electric company, for example, prepares the records of use as part of an ongoing commercial relationship and ordinarily is contractually or statutorily bound to keep them confidential.29 The right to privacy refers to information tending to reveal details of a lifestyle and intimate details of a person’s life which they intend to restrict access to. Thus disclosure of intimate details to close friends and family is not a waiver of privacy—it simply creates a zone of privacy which an employer or investigator is normally outside.

How Will the Tort Affect the Fraud Examiner’s Practice? There seems to be little doubt that an “unreasonably intrusive” investigation by an investigator gives rise to personal tort liability on the part of the investigator.30 Under the doctrine of vicarious liability, one who hires an investigator will be held liable for the torts of the detective if the employer exercises control over the detective, or in

29 R. v. Plant, [1993] 3 SCR 281. 30 In Canada see ADGA v. Valcom (19999) 41 O.R> (3d) 101 (C.A.). See e.g., Noble v. Sears Roebuck & Co., 33 Cal. App. 3d 654, 109 Cal. Rptr. 269 (1973); Tucker v. American Employers' Insurance Co., 171 So. 2d 437 (Fla. Dist. Ct. App. 1965); Pinkerton National Detective Agency, Inc. v. Stevens, 108 Ga. App. 159, 132 S.E.2d 119 (1963); Souder v. Pendleton Detectives, 88 So. 2d 716 (La. Ct. App. 1956); Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350 (1996), discretionary review denied, 345 N.C. 344, 483 S.E.2d 172 (1997); see Restatement (Second) of Torts 652B cmt. b, illus. 2 (1977)

NOTES the alternative, if the private detective commits an intentional, not negligent, tort within the scope of the employment.31 From there, the courts leave us with little guidance beyond a series of examples. For what would be highly offensive to the reasonable person as an invasion of privacy may be easy to state, but it is hard to apply. What can we say for certain?

Pre-Texting to Get Access to Information Invites a Claim for Invasion of Privacy In Shred-Tech Corp. v. Viveen,32 the Defendants were former employees and suppliers of the Plaintiff. The Plaintiff retained an investigative agency to examine the activities of the Defendants in establishing a competing business. After receiving the investigative report, the Plaintiff commenced this lawsuit. During the litigation process, an affidavit of documents was served on behalf of the Plaintiff that revealed an investigative report and other information provided by the investigative agency to the Plaintiff. This disclosure indicated two items, namely: (i) the investigator obtained the Defendants’ Bell Canada telephone records without their consent or court order; and, (ii) the investigator, under the pre-text of being as a prospective customer, entered the business premises of one of the defendants and, secretly and without permission, made a video and audio recording. As a result of this disclosure, the Defendants sued Sintrack Investigation Agency Inc. and Stan Mrowiec, a private investigator employed by Sintrack, for invasion of privacy and trespass. The Court not only allowed those claims to proceed, it granted leave to the Defendants to use the material they received in the Plaintiff’s affidavit

31 United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73, 75 (1979). 32 2006 CanLII 41004 (ON SC).

NOTES of documents as the basis of a disciplinary complaint against the investigators despite Ontario’s “implied undertaking” that documents obtained during litigation will not be used for any other, collateral purpose. The court was of the view that the public interest was best served by allowing disclosure of the investigators’ behaviour to their disciplinary body.

In Re West and College of Nurses of Ontario33 a nurse obtained medical information by claiming to be a staff member of a fictitious doctor. In reality she was working for a private investigator. She was originally found guilty of professional misconduct by the College Of Nurses under a regulation defining professional misconduct as conduct or an act relevant to the performance of nursing services that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Divisional Court overturned the decision, holding that the nurse was not engaged in the performance of nursing services when she engaged in the pre-text. This however, will not protect the investigator from a claim from invasion of privacy. Burns v. Masterbrand Cabinets, Inc. et al.,34is a similar case. James Burns filed a complaint alleging that he sustained a work injury. Burns had filed a claim with the Illinois Industrial Commission for workers' compensation benefits. The employer, Masterbrand, retained co-defendant Gallagher Bassett Services, Inc. to adjust the claim and to manage the workers' compensation case. In his complaint, Burns alleged that Gallagher retained co-defendant Metro Private Investigations, Inc. (“Metro”) to perform personal surveillance of Burns. On November 13, 2002, an employee of Metro, approached Burns's mobile home

33 (1981), 32 O.R. (2d) 85 (Div. Ct.). 34 369 Ill. App. 3d 1006 (4th Dist. 2007) app'l den. 224 Ill.2d 572.

NOTES and sought entry under the false pretence that Kennedy was looking for a missing juvenile. Burns alleged that Kennedy was holding a picture of a young girl when he approached his home. Once inside, Kennedy asked Burns questions about the missing juvenile. Kennedy used a hidden camera in a fanny pack to record Burns. Kennedy later testified in Burns's workers' compensation case with regard to the Plaintiff’s alleged physical limitations. The visit to Burns's home was the basis for Kennedy's testimony. Burns had alleged the four necessary elements of the claim in his complaint: (1) an unauthorized intrusion or prying into the plaintiff's seclusion, (2) the intrusion must be offensive or objectionable to a reasonable man, (3) the matter upon which the intrusion occurs must be private, and (4) the intrusion causes anguish and suffering. The appellate court also acknowledged a different definition, which says, “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” The court remanded the case for trial. In Johnson v. K-Mart Corp.,35 the employer believed employees were stealing, vandalizing merchandise, using and distributing drugs, and sabotaging operations in the distribution center. The company hired two private investigators to pose as employees. The investigators periodically submitted reports to the general manager of the center. Despite instructions provided by the employer, the investigators included in their reports information about employees' children's criminal conduct, incidents of domestic violence, upcoming divorces, employee sexual conduct, plans to

35 311 Ill. App. 3d 573 (1st Dist. 2000).

NOTES leave K-Mart's employment, complaints about the company, and employee health problems. The employees' invasion of privacy claim, based on intrusion on seclusion, was allowed to proceed. The Illinois court of appeals found that the disclosures to the detectives were not truly voluntary because they were induced by deceptive means. The appellate court found that the employees had a reasonable expectation of privacy in conversations with co-workers and therefore a question of fact arose as to whether the unauthorized intrusion alleged would be offensive or objectionable to a reasonable person.

Privacy Is About “Personal Space” Not Personal Property Whether the plaintiff owns the property or not is not decisive: virtual entry into premises via electronic means such as listening devices or computer hacking may not be trespass, but it almost certainly invites a claim for invasion of privacy.36 If the employer equips the employee's office with a safe or file cabinet or other receptacle in which to keep his private papers, the employee can assume that the contents of the safe are private.37

Privacy Is About Controlling Personal Information As we have seen, investigating bank account or credit card information that may be protected by legislation or

36 Dobbs, The Law of Torts, 359 (3rd ed, 2011). 37 Shields v. Burge, 874 F.2d 1201, 1203–04 (7th Cir.1989); Leventhal v. Knapek, 266 F.3d 64, 73–74 (2d Cir.2001); United States v. Taketa, 923 F.2d 665, 673 (9th Cir.1991); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1335 (9th Cir.1987); Gillard v. Schmidt, 579 F.2d 825, 828 (3d Cir.1978); compare United States v. Bilanzich, 771 F.2d 292, 297 (7th Cir.1985).; O’Connor v. Ortega, 480 U.S. 709, at 718–19.

NOTES contractual confidentiality provisions also will attract a claim, unless a proper waiver is obtained.38

Lawful Conduct Requires a Balancing Act The courts will balance the plaintiff’s right to privacy with the defendant’s right to know. For example, the employer’s valid interest in investigating wrongdoing will be relevant to the claim. In Leventhal v. Knapek, et al.39 a government employee has a reasonable expectation of privacy in an office computer located in his private office in light of the absence of both a computer usage policy advising him to the contrary, and a regular practice by his employer of searching the same. The Court found that the search in question did not constitute an invasion of privacy. Such searches are permitted if the search is both justified at its inception and of appropriate scope. Such was the case here, because the government had received anonymous notice of alleged job-related misconduct in the form of personal use of an office computer by the plaintiff employee and had conducted an appropriately circumspect inspection of his office computer to ascertain the validity of these allegations. As part of its search the employer, without the Plaintiff's knowledge or consent, copied the names of the files stored in Plaintiff's computer. Certain of the files on Plaintiff's computer were password protected. A review of these file names indicated that Plaintiff had non-standard computer programs on his office computer, which suspicion was confirmed by subsequent inspections of his computer. These inspections revealed that the Plaintiff had a tax preparation program titled Pencil Pushers stored on his computer. According to the Court, a search “is ‘reasonable’ when the measures adopted

38 Remsburg v. Docusearch Inc., 816 A 2d 1001 (N.H., 2003). 39 266 F. 3d 64 ( 2001).

NOTES are reasonably related to the objectives of the search and not excessively intrusive in light of' its purpose.”

The Need for the Third-Party Consent Privacy involves a membrane of intimacy in which the individual allows some people access, but not others. If the suspect does not provide consent, then others who are within the boundary of intimacy may still provide a valid consent. Persons with joint access or control are all capable of giving a valid consent to access what otherwise might be considered private. 40 Thus employers, co-workers, or assistants may give access to material to an investigator provided they have the express or implied consent of the suspect to access those materials themselves.

Charter Values and the Convergence of the Law of Tort and Criminal Law Anton Piller orders, in which a party obtains a court order without notice to inspect property in the defendant’s premises for the purpose of preserving evidence has been called a “civil search warrant”41 While these orders do not allow plaintiffs to force their way into offices and homes, they create the spectre of contempt of court for the defendant who refuses access. This may be a distinction without a real difference, for courts demand the same weighing of the public and private interests called “Charter Values” in a civil case involving an Anton Piller order that a criminal court does in a case involving Charter rights. In other words, the standards for Anton Piller orders are at least as high as for criminal searches, if not higher:

40 R. v. Sanelli, Duarte and Fasciano, [1987] 61 OR (2d) 385 (C.A.); R v. Meyers (1987) 58 C.R. (3d) 176 (Alta Qb). 41 Richel v. Stevenson, 1998 ABQB 1039, at para 13 (CanLII).

NOTES  There must be prior public authorization. For Anton Piller orders, the ex parte motion and order meet this requirement.  The authorization should be made by a neutral “judicial” decision-maker. Anton Piller orders are made by Masters or judges.  The justice must be satisfied by information sworn on oath. Anton Piller orders also require sworn evidence.  The substantive standards to be met are equivalent to those set out in s. 487 of the Criminal Code42. The mere possibility of finding evidence is not sufficient. One must show “reasonable and probable (that is, prima facie) grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search. Anton Piller orders satisfy and possibly exceed this test by requiring a strong prima facie case and “clear evidence that the defendants have in their possession incriminating documents or things.” Because other safeguards and standards not required by Hunter are considered in granting an Anton

42 487. (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or (c.1) any offence-related property, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

NOTES Piller order, such orders theoretically meet a standard equal to or higher than the criminal law. One important restriction enforced with search warrants that are also be strictly enforced for Anton Piller orders is that the search parameters not be overly broad.43

Conclusion One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. We have outlined some of the items that are likely to be implicated by this tort, including financial or health records, sexual practices and orientation, employment records, and diaries or private correspondence.

This is an intentional tort, meaning one had to intentionally do the act in question, rather than intentionally doing it knowing it was wrong. Since evidence is acquired intentionally, any evidence gathering investigation may be subject to a claim for invasion of privacy by the suspect or targets of an investigation. Accidentally invading the privacy of others through inadvertence is not likely to result in a claim.

Using impersonation, lies, or any form of pretexts to secure access to private information is prohibited. That is a sure indication of the investigator’s awareness that the information is private, and that the consent being secured is based on false pretences. It will not do for a fraud investigator to use fraudulent means to secure evidence that would otherwise be unavailable to hem. While a certain

43 Ontario Realty Corp. v. P. Gabriele & Sons Ltd., [2000] 50 OR (3d) 539, at para 34 (Sup Ct).

NOTES amount of trickery is permissible, one can deceive another into forfeiting their rights. That offends “Charter Values”.

The investigator must clearly distinguish evidence for the purpose of proving or disproving wrongdoing, versus evidence that is only relevant to embarrassing the subject of the investigation. Now the investigator must now form an opinion on whether something that appears confidential or private implicates a right to privacy. If it is not in plain sight, and it otherwise appears to be caught by the veil of privacy, the investigator must seek the consent of one of the individuals within the membrane of privacy to obtain the information he or she seeks, be that the suspect, the employer, the spouse, the assistant, or other person who has the suspect’s permission (express or implied) to access the private matter. Without that permission, the suspect must proceed cautiously, recognizing that we anticipate that the criminal law and the civil law will find common ground under the rubric “Charter Values”, such that in circumstances where a public investigator would be obliged to get a warrant, a private investigator is likely to be obliged to get a court order (an Anton Piller order being the most common) or risk a claim for invasion of privacy. “Charter values” includes not only what the investigator does, but how she or he does it. An investigator must show a rational analysis that balanced an immediate need to preserve evidence, and an attempt to restrict the investigation to the minimally invasive means of executing this task, and an attempt to must now be part of the investigator’s plan of action.

Intrusion is only one facet of this tort. Eavesdropping on conversations, reading other e-mails, and other forms of invasion is not all one has to worry about. Disclosure of private information is another. Thus disclosing non-public information to one’s client, even though true, may result in

NOTES a claim. Thus vetting reports for all private information that may not be relevant to the client’s mandate must be undertaken. Disclosing that information as part of a recommendation to the client to expand the investigation may be proper, but once again a judgment call has to be made between the public good of the disclosure compared to the private embarrassment to the target of the investigation. Is your report a reflection of a balanced, professional investigation or is it a deliberate or reckless attempt to support your client’s allegations by the addition of innuendo and embarrassing personal information?

While the compensatory damages for invading privacy may be modest, investigators will find themselves playing “defence”, and being the subject of scrutiny as suspects use the tort of privacy as a strategic tool. Moreover a punitive damage claim may not be modest, and it may not be covered by your malpractice insurance. Suspects will now use the tort of invasion of privacy in the context of civil investigation in the same way they use the Charter to attack criminal and regulatory challenges, with one salient difference—the investigator now becomes a party to any ensuing proceedings and faces personal liability, as well as incurring vicarious liability for the client. This makes a civil investigation a high risk, high stakes venture that requires investigators to review (a) their internal protocols, (b) their malpractice insurance, and (c) the engagement letters to ensure that they all properly address the new Canadian tort of invasion of privacy.

Appendix A: Statutory right to sue for invasion of privacy

Federal - - British Privacy Act, S. 1(1) It is a tort, actionable without proof of damage, for a Columbia R.S.B.C. person, wilfully and without a claim of right, to violate the 1996, c. 373 privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass. S. 2(2) An act or conduct is not a violation of privacy if any of the following applies: (a) it is consented to by some person entitled to consent; (b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; (c) the act or conduct was authorized or required by or under a law in force in British Columbia, by a court or by any process of a court;[...] (3) A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation. (4) Subsection (3) does not extend to any other act or conduct by which the matter published was obtained if that other act or conduct was itself a violation of privacy. Alberta - - Saskatchewan The Privacy S. 2 It is a tort, actionable without proof of damage, for a person Act, R.S.S. wilfully and without claim of right, to violate the privacy of 1978, c. P-24 another person. S. 3 Without limiting the generality of section 2, proof that there has been: (a) auditory or visual surveillance of a person by any means including eavesdropping, watching, spying, besetting or following and whether or not accomplished by trespass; (b) listening to or recording of a conversation in which a person participates, or listening to or recording of messages to or from that person passing by means of telecommunications, otherwise

than as a lawful party thereto; (c) use of the name or likeness or voice of a person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purpose of gain to the user if, in the course of the use, the person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or (d) use of letters, diaries or other personal documents of a person; without the consent, expressed or implied, of the person or some other person who has the lawful authority to give the consent is prima facie evidence of a violation of the privacy of the person first mentioned. S. 4(1) An act, conduct or publication is not a violation of privacy where: (a) it is consented to, either expressly or impliedly by some person entitled to consent thereto; (b) it was incidental to the exercise of a lawful right of defence of person or property; (c) it was authorized or required by or under a law in force in the province or by a court or any process of a court;[...] (2) A publication of any matter is not a violation of privacy where: (a) there were reasonable grounds for belief that the matter published was of public interest or was fair comment on a matter of public interest; or (b) the publication was, in accordance with the rules of law relating to defamation, privileged; but this subsection does not extend to any other act or conduct whereby the matter published was obtained if such other act or conduct was itself a violation of privacy. S. 6(1) The nature and degree of privacy to which a person is entitled in any situation or in relation to any situation or matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others. (2) Without limiting the generality of subsection (1) in determining whether any act, conduct or publication constitutes a violation of the privacy of a person, regard shall be given to: (a) the nature, incidence and occasion of the act, conduct or publication; (b) the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the person or his family or relatives; (c) any relationship whether domestic or otherwise between the parties to the action; and (d) the conduct of the person and of the defendant both before

and after the act, conduct or publication, including any apology or offer or amends made by the defendant. Manitoba The Privacy S. 2(1) A person who substantially, unreasonably, and without Act, claim of right, violates the privacy of another person, commits a C.C.S.M. tort against that other person. 1987, c. (2) An action for violation of privacy may be brought without P-125 proof of damage. S. 3 Without limiting the generality of section 2, privacy of a person may be violated (a) by surveillance, auditory or visual, whether or not accomplished by trespass, of that person, his home other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying , besetting or following; (b) by the listening to or recording of a conversation in which that person participates, or messages to or from that person, passing along, over or through any telephone lines, otherwise than as a lawful party thereto or under lawful authority conferred to that end; (c) by the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or (d) by the use of his letters, diaries and other personal documents without his consent or without the consent of any other person who is in possession of them with his consent. S. 4(2) In awarding damages in an action for a violation of privacy of a person, the court shall have regard to all the circumstances of the case including (a) the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of that person; (b) the effect of the violation of privacy on the health, welfare, social, business or financial position of that person or his family; (c) any relationship, whether domestic or otherwise, between the parties to the action; (d) any distress, annoyance or embarrassment suffered by that person or his family arising from the violation of privacy; and (e) the conduct of that person and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant. S. 5 In an action for violation of privacy of a person, it is a defence for the defendant to show (a) that the person expressly or by implication consented to the act, conduct or publication constituting the violation; or

(b) that the defendant, having acted reasonably in that regard, neither knew or should reasonably have known that the act, conduct or publication constituting the violation would have violated the privacy of any person; or (c) that the act, conduct or publication in issue was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of person, property, or other interest of the defendant or any other person by whom the defendant was instructed or for whose benefit the defendant committed the act, conduct or publication constituting the violation; or (d) that the defendant acted under authority conferred upon him by a law in force in the province or by a court or any process of a court; or[...] (f) where the alleged violation was constituted by the publication of any matter (i) that there were reasonable grounds for the belief that the publication was in the public interest; or (ii) that the publication was, in accordance with the rules of law in force in the province relating to defamation, privileged; or (iii) that the matter was fair comment on a matter of public interest. Ontario - - Quebec Civil Code of BOOK ONE Quebec, S.Q. PERSONS 1991, c. 64 TITLE TWO CERTAIN PERSONALITY RIGHTS CHAPTER III RESPECT OF REPUTATION AND PRIVACY Art. 35. Every person has a right to the respect of his reputation and privacy. No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law. Art. 36. The following acts, in particular, may be considered as invasions of the privacy of a person: 1) entering or taking anything in his dwelling; 2) intentionally intercepting or using his private communications; 3) appropriating or using his image or voice while he is in private premises; 4) keeping his private life under observation by any means; 5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public; 6) using his correspondence, manuscripts or other personal documents.

Art. 37. Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned. BOOK TWO OBLIGATIONS TITLE 1 OBLIGATIONS IN GENERAL CHAPTER III CIVIL LIABILITY Art. 1457 Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. New Brunswick - - Nova Scotia - - Prince Edward - - Island Newfoundland The Privacy S. 3(1) It is a tort, actionable without proof of damage, for a and Labrador Act, R.S.N.L. person, wilfully and without a claim of right, to violate the 1990, c. P-22 privacy of an individual. (2) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, regard being given to the lawful interests of others; and in determining whether the act or conduct of a person constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties. S. 4 Proof that there has been (a) surveillance, auditory or visual, whether or not accomplished by trespass, of an individual, by any means

including eavesdropping, watching, spying, harassing or following; (b) listening to or recording of a conversation in which an individual participates, or listening to or recording of messages to or from that individual passing by means of telecommunications, otherwise than as a lawful party to them; (c) use of the name or likeness or voice of an individual for the purpose of advertising or promoting the sale of, or other trading in, property or services, or for other purposes of advantage to the user where, in the course of the use, the individual is identified or identifiable and the user intended to exploit the name or likeness or voice of that individual; or (d) use of letters, diaries or other personal documents of an individual, without the consent, expressed or implied, of the individual or some other person who has the lawful authority to give the consent is, in the absence of evidence to the contrary, proof of a violation of the privacy of the individual first mentioned. S. 5(1) An act or conduct is not a violation of privacy where (a) it is consented to by some person entitled to consent; (b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; (c) the act or conduct was authorized or required under a law in force in the province or by a court or a process of a court; or[...] (2) A publication of a matter is not a violation of privacy where (a) the matter published was of public interest or was fair comment on a matter of public interest; or (b) the publication was, under the rules of law relating to defamation, privileged, but this subsection does not extend to another act or conduct where the matter published was obtained where the other act or conduct was itself a violation of privacy. Yukon - - Northwest - - Territories Nunavut

Appendix B: Remedies Under the Statutory Right of Privacy Facts Remedy Pateman et. al. v. Woman harassed ex-boyfriend and his new Interlocutory injunction Ross(1988), 68 Mr. R. wife with threatening phone calls, letters and (2d) 181 (Man. Q.B.) visits. Insurance Corp of Insurance company investigator asked $1,000 – General Damages British Columbia v. invasive questions about car driver after $1,000 – Punitive Damages Somosh (1983), 51 accident, although the insurance company had B.C.L.R. 344 no claim at law against driver (B.C.S.C.) Wasserman v. Hall, Claim for breach of privacy and nuisance; $3,500 – General Damages 2009 BCSC 1318, 87 breach was described as “relatively minor”. R.P.R. (4th) 184 Heckert v. 5470 Landlord placed a video camera in the hallway $3,500 – Nominal Investments Ltd. 2008 of the building. Held that there was no Damages BCSC 1298, 299 legitimate reason for close-up imaging people D.L.R. (4th) 689. immediately outside their apartment doors. Hollinsworth v. Defendant released videotape of plaintiff $15,000 – General BCTV(1996), 34 having hair transplant surgery and media aired Damages C.C.L.T. (2d) 95 video. (B.C.S.C.), aff’d 1998 B.C.C.A. 304. F. (J.M.) v. Defendant published the name of complainant $3,000 – General Damages Chappell,(1998) 45 in sexual assault case in breach of publication $15,000 – Punitive B.C.L.R. (3d) 64 ban. Jury awarded $19,000 in damages, but Damages (B.C.C.A.), leave to the judge countenanced a defence of $1,000 Non-pecuniary appeal to SCC publication privilege and reduced this to Damages refused, (1998), 231 $1,000. N.R. 400. Court of Appeal reinstated the jury award. Lee v. Jacobson; Landlord drilled a secret hold to spy on tenant. $2,000 – General Damages Weber v. Note: Findings of fact were overturned. $22,500 – Punitive Jacobson(1992), 87 Damages D.L.R. (4th) 401 (B.C. S.C.), rev’d (1994), D.L.R. (4th) 155 (B.C.C.A). Watts v. Klaemt 2007 Defendant recorded the plaintiff’s telephone $30,000 – Actual damages BCSC 662, 71 conversations and the reported the content to $5,000 – Punitive Damages B.C.L.R. (4th) 362. the plaintiff’s employer. Plaintiff was then fired. Malcolm v. Defendant landlord secretly videotaped $15,000 – General Fleming,[2000] plaintiff while she was in her bathroom and Damages Carswell BC 1316, bedroom. $35,000 – Punitive (B.C.S.C.) Damages Nesbitt v. Family dispute: defendant published private $40,000 – General

Neufeld,2010 BCSC documents, started websites, Facebook Damages44 1605, [2011] groups, sent letters to friends / colleagues / B.C.W.L.D. 407. professional associations accusing her of drug abuse, suicide attempts, mental illness and sexual promiscuity.

44 www.slaw.ca/2012/01/18/tort-of-invasion-of-privacy-in-ontario.

Appendix C: Ontario damage awards

The Court of Appeal in the Jones v. Tsige case provided a helpful table of damages related to privacy interests. Facts Details Remedy Saccone v. Orr Played tape of private Cause of action: Invasion $500 – General (1981), 34 O.R. (2d) telephone conversation of privacy Damages 317, (Ont. Co. Ct.) aloud at municipal Held: Defendant did not council meeting without act with malice and counsel. proven damages were minimal. Provincial Partitions Persistent crank calls to Cause of action: $1000 – General Inc. v. Ashcor Inplant rival business. Nuisance by invasion of Damages Structures Ltd. (1993), privacy. 50 C.P.R. (3d) 497, (Ont. Gen. Div.) Palad v. Pantaleon, Harassment of borrower Cause of action: Invasion $2,500 – General [1989] O.J. No. 985, in an attempt to collect of privacy Damages (Ont. Dist. Ct.) on a debt. Lipiec v. Borsa Surveillance of backyard. Causes of action: $3,000 – General (1996), 31 C.C.L.T. Trespass and nuisance by Damages (2d) 294, (Ont. Gen. deliberate invasion of Div.) privacy S. & A. Nagy Farm v. Malicious attempt to Causes of action: $4,000 – General Repsys, [1987] O.J. persuade borrowers to Defamation and invasion Damages (Husband No. 1987, amend mortgage of privacy. and Wife) (Ont. Dist. Ct.) agreement by embarrassing and harassing them. Roth v. Roth (1991) 9 Interference with access Causes of action: $20,000 – General C.C.L.T. (2d) 141, to cottage and with Harassment, statutory Damages (Ont. Gen. Div.) enjoyment of property. breach, trespass and $5,000 – Exemplary invasion of privacy` Damages Garrett v. Mikalachki Man harassed neighbour, Causes of action: $25,000 – General [2000] O.J. No. 1326, reducing neighbour’s Defamation, intentional Damages (Ont. S.C.) enjoyment of property, infliction of emotional and spread rumours about distress, nuisance, the neighbour’s alleged invasion of privacy, criminal past. harassment. Tran v. Financial Repeated abusive calls to Causes of action: $25,000 – General Debt Recovery Ltd. debtor and his work Defamation, intentional Damages (2000), 193 D.L.R. colleagues regarding interference with (4th) 168 (Ont. S.C.) repayment. economic interests, intentional infliction of emotional harm, invasion of privacy

MacKay v. Stalked former spouse. Causes of action: $25,000 – General Buelow(1995), 24 invasion of privacy, Damages C.C.L.T. (2d) 184 trespass to person and $15,000 – (Ont. Gen. Div.) intentional infliction of Aggravated Damages mental suffering and $15,000 – Punitive emotional distress Damages Held: Defendant’s $6,248 – Special actions were “calculated, Damages devilishly creative and $44,000 – Costs of entirely reprehensible”. future care