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Tag: BC Privacy Act

Peeping Tom Ordered to Pay $93,850 For Recording Step-Daughter

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Reasons for judgement were released today by the BC Supreme Court, Duncan Registry, ordering a peeping tom Defendant to pay $93,850 in damages for recording his step-daughter while she was showering and otherwise undressed.
In today’s case (TKL v. TMP) the Court was presented with the following statement of facts –
[16]         On four occasions in the first half of 2011, the defendant surreptitiously video-recorded the plaintiff while she was in the shower and for a period of time shortly after she left the shower. The plaintiff was 20-years-old the first time this happened; on the latter three occasions she was 21. In July 2011, the plaintiff came across the videos on the defendant’s camera. The matter was reported to the RCMP.
[17]         The agreed statement of facts referenced earlier includes a recitation of what was depicted on the video recordings. The following summary of the four recordings is drawn from the agreed statement of facts:
13 January 2011
The plaintiff is seen exiting the bathroom door and entering into her bedroom. She is wearing a towel wrapped around her body and has a towel wrapped around her head. She closes her bedroom door and walks around in her bedroom. She gathers her clothes and takes off her towels. Her entire body, including her buttocks, genital area and breasts are captured on the video clip and in the reflection of mirrors that are against her bedroom wall. She is seen bending over to pull up her underwear.
8 May 2011
The plaintiff is seen entering into the stand-up shower with a clear glass door. She is completely naked and the video-recording captures images of her vagina, breasts and buttocks. It also shows her masturbating in the shower for a couple of minutes. She is next seen shaving and trimming her pubic hair, and shaving her armpits and legs. She then goes back to masturbating and eventually sits on the shower stall floor. She exits the shower stall and dries off.
22 May 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. He adjusts the angle and zooms in at various times, capturing images of the plaintiff’s vagina, buttocks and breasts. He zooms in on her nipples, zooms out and then re-zooms on her face. She masturbates. After a few minutes of masturbating she washes and conditions her hair, with her arms extended over her shoulders. She is seen getting out of the shower, and images of her breasts, buttocks and vagina are clearly captured.
12 June 2011
The defendant is holding the camera, pointed at the shower through a gap in the bathroom door frame. The plaintiff can be seen in the shower completely naked. She is captured exiting the shower and her breasts and vagina are within view.
In finding these actions breached BC’s Privacy Act and assessing non-pecuniary damages at $85,000 Mr. Justice Thompson provided the following reasons:
20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question…
[52]         My sense is that the plaintiff in the case at bar has suffered a greater degree of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle than the plaintiffs in the Malcolm and L.A.M. cases. I conclude that the quantum of compensatory damages awarded in those cases would be wholly inadequate compensation in the case at bar. I award $85,000 for general damages, of which $25,000 is allotted to take account of the aggravated features of the case — I agree with the plaintiff that the damages ought to be significantly increased in response to the defendant’s thoroughly undignified and humiliating actions.
 

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

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Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.
In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.
A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.
ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.

Damages for Violations of Privacy in BC

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(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)

As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person.  This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.
Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books.  Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.
In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“.  The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”
The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated.  Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages.   In reaching this award the Court provided the following reasons:

[89]         The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760, [1970] B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:

To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].

[90]         In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).

[91]         Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…

[96] Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…

[102] The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.

[103] Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.

[104] For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.

[105] I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.

The Court went on to award the victim ‘special costs’ in order to rebuke the other parties ‘reprehensible conduct‘.  The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come.  With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.