Canadian Privacy Laws: A Primer

privacy

Canada has enacted legislation to protect the privacy of individuals. If you believe your privacy has been breached, one or more of the following laws may apply to your situation. Please note that the information provided below is not to be considered as legal advice. 

Canadian Charter of Rights and Freedoms (the “Charter“):

Section 7 of the Charter states that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Even though this section does not mention “privacy” explicitly, Justice La Forest in Godbout v Longueuil [1997] 3 SCR 844, and prior to that in R v Beare [1988] 2 SCR 387, had hinted that s.7 may be invoked to protect privacy rights.

Section 7 was again visited in the case of R v O’Connor [1995] SCJ No 98, a criminal case, in which the defendant sought disclosure of health and medical records of the complainant. This case is now the leading case for procedure regarding disclosure of third-party documents. As per O’Connor, the defence must show that the disclosure they seek is “likely relevant” to the issue at hand.

In addition to s.7, s. 8 of the Charter, which is also mostly used in criminal matters, protects individuals from unreasonable state intrusion:

8. Everyone has the right to be secure against unreasonable search or seizure.

Privacy Act:

The Privacy Act RSC, 1985, c P-21protects “The Privacy Act relates to a person’s [Canadian citizens, permanent residents or ] right to access and correct personal information that the Government of Canada holds about them. The Act also applies to the Government’s collection, use and disclosure of personal information in the course of providing services.”[1]

Personal Information Protection and Electronic Documents Act (the “PIPEDA“) and Provincial Privacy Acts:

The PIPEDA and Provincial Privacy Acts set out “the ground rules for how private-sector organizations collect, use, and disclose personal information in the course of for-profit, commercial activities across Canada. It also applies to the personal information of employees of federally-regulated businesses”[2] These legislations, however, with exceptions of British Columbia and Quebec, are only applicable to those organizations that are engaged in commercial activities. British Columbia and Quebec legislation do not make any distinctions between commercial and non-commercial activities and also apply to non-profit organizations.

In BC, more specifically, The Freedom of Information and Protection of Privacy Act regulates the collection, use and disclosure of personal information by public bodies, and the Personal Information Protection Act regulates the collection, use and disclosure of personal information by private organizations such as independent school authorities.[3]

Canadian Common Law

Canadian common law recognizes two privacy-related torts:

  1. Misappropriation of Personality

In Wiseau Studio et al. v. Richard Harper, 2017 ONSC 6535, Judge Koehnen explains the underlying principle of this tort:

[102]      The general concern underlying the tort is that the misappropriation of another’s personality implies that the person whose personality is being misappropriated (usually a celebrity of some sort) is endorsing the activity of the defendant. This commercial benefit belongs to the celebrity, not to the defendant.

This tort is used to prevent unauthorized use of a person’s public image and persona. To be successful, the plaintiff has to establish that the use of his or her persona was for a commercial purpose.

  1. Intrusion upon Seclusion

In Filbey v. Ashe, 2018 ONSC 4615, Justice Mew stated:

[82] Recognition of the tort of intrusion upon seclusion is a recent development in the common law in this province. In Jones v. Tsige2012 ONCA 32 (CanLII), the Court of Appeal set out a three-part test for establishing intrusion upon seclusion:

a.  the defendant’s conduct must be intentional or reckless;

b.  the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

c.  a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The tort of intrusion upon seclusion captures a wider range of actions than misappropriation of personality and is not limited to commercial actions.

 

Sources:
[1] online: Office of Privacy Commissioner of Canada, Fact Sheets <https://www.priv.gc.ca/resource/fs-fi/02_05_d_15_e.asp>
[2] Ibid.
[3] https://www2.gov.bc.ca/gov/content/education-training/administration/kindergarten-to-grade-12/independent-schools/other-legislation-regulations/personal-information-protection-act.

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