Protecting Private Information in Alberta
“The recognition of this new tort may have more sweeping changes then the facts of this case would otherwise suggest.” – Jennie Buchanan
On Episode 20: Protecting Private Information in Alberta – Mark Fancourt-Smith and Alix Stoicheff speak with Jennie Buchanan about a recent decision from the Alberta Court of Queen's Bench in which the Court recognized a new tort that protects the distribution of private information including about financial matters, sexual matters, relationship records and health records.
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Don't have time to listen to the full podcast? Here's what this episode covered:
- What are the facts of the ES v Shillington case? 01:03
- In what situations will a court recognize a new tort? 2:40
- Why did the court recognize a new tort in this case? 4:25
- What are the elements of this new tort? 8:05
- How will this new tort affect future cases? 12:26
Transcript
Mark Fancourt-Smith 00:08
Welcome to LawsonInsight. I'm Mark Fancourt-Smith, a partner in Lawson Lundell’s Vancouver office and I practice in the firm's Dispute Resolution Group.
Alix Stoicheff 00:14
And I'm Alixandra Stoicheff, I'm an associate in the firm's Calgary office and I practice primarily in the Dispute Resolution Group as well. So a few months ago, we had Meg Gaily on the podcast to chat about Alberta's Protecting Victims of Non-Consensual Distribution of Intimate Images Act, which is legislation that is intended to stop the spread of intimate images online and to provide a means of redress for victims. Today, we're going to chat with Jennie Buchanan about a recent decision from the Alberta Court of Queen's Bench in which the court recognized a new tort that protects the distribution of private information, which can include intimate images as well.
Mark Fancourt-Smith 00:47
Jennie is an associate in the Commercial Litigation and Dispute Resolution Group in Calgary. She has a general commercial litigation practice with a focus on commercial arbitration, administrative law and employment disputes. Jennie, welcome to the podcast.
Alix Stoicheff 01:00
Hi, Jenny.
Jennie Buchanan 01:01
Hi, thank you for having me.
Mark Fancourt-Smith 01:03
So Jennie, to start off, perhaps you can tell us the background facts of ES v Shillington. The case that has recognized this new tort Alberta.
Jennie Buchanan 01:10
Certainly, so this is a decision of Justice Inglis that was released in September of this year. The facts are a little disturbing, so I'll just give a high level summary: the plaintiff and the defendant had been in a romantic relationship for more than a decade, and during the course of their relationship, the plaintiff shared some explicit photographs and videos of themselves with the defendant. And the defendant then posted those images and videos online without the plaintiffs consent. The defendant told the plaintiff about that sometime later, and the plaintiff was able to track some of the images through the defendants social media accounts and found to their dismay that they were posted on pornography websites. As a result of this the plaintiff suffered significant mental distress and embarrassment. The defendant during the course of their relationship was also physically and sexually abusive to the plaintiff. The relationship ended, the plaintiff sued the defendant for a number of recognized intentional torts, including battery and sexual assault, and also ask the court to recognize a new intentional tort, the tort of Public Disclosure of Private Information. An interesting thing about this case is that the defendant did not defend the action. And so the court entered Default Judgment for the plaintiff claims for recognized torts and the court then convened a special chambers application to hear argument about whether or not the court should recognize the new tort of Public Disclosure of Private Information.
Alix Stoicheff 02:40
And tell us a little bit more about in what situations a court will recognize a new tort, because that's pretty rare for them to do. And so from a legal perspective, that's what makes this case quite interesting.
Jennie Buchanan 02:50
Yeah, absolutely. So in 2020, the Supreme Court of Canada endorsed three (3) rules that courts will apply when they're called upon to recognize a new tort. So the first rule is the rule of necessity, and that requires the court to be satisfied that there doesn't already exist an adequate remedy to address the wrong and those alternative remedies could be in the form of an existing tort, an independent statutory scheme or judicial review. The second rule is that the new tort must reflect and address a wrong visited by one person upon another person. The court must be satisfied that the facts cry out for a remedy. Then the third rule is that the change to the legal system brought by recognizing the new tort must not be indeterminate, or substantial. So according to this third rule, the court must be satisfied that the tort would not create indeterminate liability, resulting in a radical shift in the law, or contradict established principles of law. And this rule, in my mind reflects a balancing of interests, I suppose. So on the one hand, it balances the courts respect for legislative supremacy, and ensures that judge made changes to the law are only incremental, but on the other hand, allows the common law to evolve and respond to problems that perhaps, for example, the legislature has not yet responded to.
Mark Fancourt-Smith 04:25
One of the interesting things about this case, in addition to it having recognized a new tort was that the legislation which it sought to supplement the Protecting Victims of Non-Consensual Distribution of Intimate Images Act was as recent as it is. And so why in this case, did the court decide to recognize the new tort?
Jennie Buchanan 04:42
Yes, that's a great point and Justice Inglis spent quite a bit of her analysis on the question of whether that new statute provided an adequate alternative remedy, Justice Inglis determined or concluded that there was not a statutory remedy for the wrong in this case. She recognized that Alberta had introduced the Protecting Victims of Non-Consensual Distribution of Intimate Images Act, but found that a remedy wasn't available to the plaintiff under that act because it came into force. After the defendant had posted the images, Justice Inglis also found that there were two additional gaps in the statutory framework that the new tort would fill. The first is that the act only protects against public distribution of images in which the victim is nude, exposing their genital or anal regions or breasts or is engaged in a sexual activity. So while that would have captured the content in this case, Justice Inglis noted that the Act doesn't protect other content that people may have an interest in protecting from distribution. And the second gap that Justice Inglis noted is that the Act does not protect against a person privately sharing intimate images of another person. And that is something that this new tort could fill. Justice Inglis also considered whether there were existing torts that could address the conduct at issue in this case. And specifically, she considered the tort of breach of confidence and the tort of intentional infliction of mental distress and concluded that both impose undue barriers on plaintiffs. So for example, in a breach of confidence action, the plaintiff has to prove that the information was both confidential and communicated in confidence, which is a hurdle that a plaintiff has to overcome. And then, in terms of the tort of intentional infliction of mental distress, Justice Inglis found that the fact that the plaintiff must prove the defendants conduct was calculated to produce harm. In other words, the plaintiff has to prove a subjective intention on the part of the defendant was an undue barrier to a remedy.
Mark Fancourt-Smith 06:55
That's interesting in a couple of ways. And I've run into that difficulty when pleading things before you're going to try to capture the intentional dissemination of private information or otherwise using intentional infliction of mental distress, because in addition, the plaintiff has to suffer something more than just stress and anxiety. But, you know, a provable illness or a diagnosable illness, which is a real hurdle as well. So it's very interesting that they, that the Court turned their mind that specifically in this case, as well as the lack of retroactivity, you can, you know, I guess, statutes can always deem something to have been okay. But they can't go and deem something always do always to have been wrong. And that's one of the powers of the common law, I guess.
Jennie Buchanan 07:41
Yeah, that's right. And I think that point about retroactivity ties into that that third rule that the Justice Inglis considered for recognizing a new tort, and as I said, that balancing between respect for the legislature while also ensuring that the common law can evolve to protect people and our rights when the legislature may not be acting fast enough, or because a statute won't apply retroactively.
Alix Stoicheff 08:05
And so we've chatted about the reasons why Justice Inglis found that this toward met the test and need for the creation or the recognition rather of a new tort. How to Justice Inglis describe the elements of this new tort?
Jennie Buchanan 08:18
So there's four things plaintiff has to prove to establish liability for this new tort public disclosure of private facts. [1] First, the plaintiff has to prove the defendant publicized an aspect of the plaintiff’s private life. [2] Second, that the plaintiff did not consent to the publication. [3] Third, that the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff. And [4] fourth, that the publication was not of legitimate concern to the public.
Alix Stoicheff 08:50
And when I hear that, I sort of think it's an anti-Doxxing tort, like, you know, you think about situations in which someone's address is shared online, or, I mean, I don't know she doesn't, she doesn't specifically address something like an address. But you think maybe it could be extended to that?
Jennie Buchanan 09:06
Well, that is, in my opinion, or view, an interesting thing about this case, and something that we'll be watching for is to see what other types of private information courts apply this tort to. So as I said, the first element of the tort is that the defendant publicized an aspect of the plaintiffs private life. Although this case dealt with intimate images, the way that the tort is articulated, allows for the protection of a broader category of private information. And in fact, Justice Inglis identified four established categories of private information that would qualify for protection beyond sexually explicit images. So for example, information about financial matters information, not just images about sexual matters. Relationship records and health records. So you can imagine that the recognition of this new tort may have more sweeping changes, then the facts of this case would otherwise suggest.
Mark Fancourt-Smith 10:12
And I suppose the other point to make is that it's not a closed list in terms of the examples that are given. And depending on the circumstances that sort of provided for in the first step of the analysis, other ones may be added as appropriate or as needed. And that's is another interesting distinction, sort of between statute based law and caught judgment, common law, and that it can provide for future editions or future incremental changes in a way that statutes can’t. You know, they have to describe they have to be prescriptive and precise, which is both helpful in terms of predictability, but can leave them a little flat footed, sometimes in terms of responding to ways in which people find new ways to be evil.
Jennie Buchanan 10:55
That's right, and I think that point Mark, is one that motivated, perhaps, Justice Inglis to recognize this new tort. And what I mean by that is that throughout her reasons, it's clear that she was concerned about the proliferation of the internet and the ease with which a person can share private information about another person without consequences. And so this case marks or represents the court's interest or desire to step in to protect individual's privacy interest in their private information. We have established privacy laws and common law and statutory law that protects our information, privacy or privacy in our personal information, we have laws that protect the privacy of our person. And we have laws that protect the privacy of our property. And so this is a step toward additional protection for our private information, which is it is important in in an age where the distribution of information is so easy, and the person whose information is being shared has very little ability to prevent the distribution in the first place.
Alix Stoicheff 12:26
I think it'll be really interesting to see like, because of the way in which this case came to the courts, and particularly the fact that there was not opposing counsel on the other side, it will be interesting, I think, to see how this tort is dealt with by subsequent courts or on by appellate courts. Yeah, Jennie, I can see you have something to say.
Jennie Buchanan 12:48
On that note, I can say that there is at least one more recent decision from the Court of Queen's Bench applying this tort and finding liability. So Alix, you make a great point in that, because the defendant did not defend and this was a default judgment, there's almost zero chance, in fact, there probably is zero chance of an appeal. So this case will not provide an opportunity, the ES v Shillington case will not provide an opportunity for the Alberta Court of Appeal to weigh in on whether this new tort should be recognized or should have been recognized. But because it has since been applied by the Court of Queen's Bench in subsequent decisions, we may see the Court of Appeal weigh in on this sooner than later.
Mark Fancourt-Smith 13:42
That really did put Justice Inglis in a difficult position, didn't it? I mean, you know, that we, in our common conception, judges are supposed to function as arbiters, you know, ideally against two, you know, equally matched or legally represented opponents, and then decide, but here she would have had to, in one way anticipate the arguments against and in order for her decision to have, you know, the appropriate weight and appropriate impact.
Jennie Buchanan 14:09
And I think that point really highlights the importance that Justice Inglis placed on ensuring that a person's private information is protected from public disclosure to take this step of recognizing a new tort in the context of a of an undefended suit, I think really demonstrates the importance of protecting private information in circumstances where the statute the statutory law, for example, or other torts have left gaps and speaks to you know, the at least Justice Inglis’ view about how necessary this really was.
Mark Fancourt-Smith 14:54
Jennie, thanks so much for being on the podcast. This has been fascinating and you'll have to come back once we, the collective we, have had an opportunity to see how this case gets treated either in the appellate court in in Alberta or whether other provinces follow suit and take up this tort as well. So thanks again for coming in and speaking with us today.
Jennie Buchanan 15:14
My pleasure. Thanks for having me.
Alix Stoicheff 15:17
For those listening, you can stay up to date by connecting with us on social media using the handle @LawsonLundell. And by subscribing to the podcast on Apple, Spotify or Google podcasts. You can also check out a recent blog post that Jennie did on this issue by going to our Lawson Lundell website and searching Jennie’s name. Thanks very much for listening.
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Hosted by partner Mark Fancourt-Smith and associate Alix Stoicheff, LawsonInsight is a look inside the legal mind. If you would like us to cover a particular topic, please email your requests to inquiries@lawsonlundell.com
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