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Public disclosure of private facts: New class action certification

I am very pleased to join the First Reference blogging team. I look forward to participating within a leading resource for the HR and employment law community.

privacy-actI have a particular interest in technology and its impact on the workplace. A key consequence of the impact of technology is our evolving relationship with privacy rights. As our lives become more digital, our privacy is more difficult to control. Deactivating my Facebook account is not the same as drawing the shades on my front window. Who knows where all that data continues to hang out online and who has access to it?

The Federal Court has released an interesting decision, certifying in a class action the novel tort of public disclosure of private facts for the first time in Canada:  John Doe and Suzie Jones and her Majesty the Queen, 2015 FC 916 (unpublished). 

The case arose out of an “administrative error” committed by Health Canada, wherein oversized envelopes indicating the recipients’ names and identifying the sender as “Health Canada – Marihuana Medical Access Program” were send to all licensed medical marijuana users and growers.

Unhappy recipients from across Canada joined a class action, alleged a range of causes of action, including negligence, breach of contract, breach of confidence, intrusion upon seclusion and the novel tort of public disclosure of private facts.

While the court required some amendments to the Statement of Claim, they chose to recognize the tort of  “public disclosure of private facts”, also referred to as “publicity given to private life.”  The Court characterized the novel tort as an extension upon the tort of intrusion upon seclusion, and referred to its description from Restatement (Second) of Torts:

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

  1. would be highly offensive to a reasonable person and;
  2. is not of legitimate concern to the public. [John Doe and Suzie Jones v Canada, 2015 FC 916 at para 41].

While understandably, given the subject of the class action, the plaintiffs filed the claim anonymously, the Court ordered that the Statement of Claim be amended to include at least one named representative plaintiff. The Government has filed its notice of appeal, and it remains to be seen whether the novel tort will succeed at the merits stage of the proceeding, or, more likely, whether the parties will settle out prior to a trial.

Either way, the bottom line remains that the court has certified yet another expansion of privacy law as a result of the easy and comprehensive availability of digital, personal information, whether such information be posted in the workplace, online – or in this case, on an envelope label.

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Lisa Stam

Founder of Spring Law, Employment and Labour Lawyer at Spring Law
Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technologyinthe workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media andtechnology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.
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