In yet another warning about not checking on the files of your partner’s ex at work, the Ontario Superior Court has held a Legal Aid Ontario employee liable for the tort of intrusion upon seclusion.
In McIntosh v. Legal Aid Ontario, Superior Court Justice Dan Cornell awarded Patrice McIntosh damages of $7,500 after finding a breach under the relatively new tort of intrusion upon seclusion.
Cornell dismissed the action against LAO, which apologized after an investigation, but found employee Cassandra Reddick liable for the breach after she called McIntosh in 2010 to tell her she had obtained confidential information from her case file.
The review of the file indicated McIntosh had a children’s aid file, and Reddick threatened to call the Children’s Aid Society in order to have her children taken away from her. Reddick didn’t defend the action, according to Cornell.
While McIntosh claimed Reddick had disclosed the information to the CAS to have it undertake an ultimately fruitless investigation into her, Cornell found there was no evidence to support that assertion. He also rejected McIntosh’s claims for two years of lost wages of $52,000 due to her inability to work as a result of the anxiety the privacy breach had caused her.
“It is apparent from the plaintiff’s medical records that she was suffering from depression and anxiety prior to this incident,” wrote Cornell, adding there was no medical report documenting her condition after the breach apart from a medical note from a doctor who had seen her for anxiety in 2011.
But in assessing damages for the privacy breach, Cornell found there was a clear case for establishing liability.
“The information that had been provided by the plaintiff to Legal Aid Ontario was clearly personal information. It was provided with an expectation that the plaintiff’s privacy interests would be respected and that the information would be used in connection with her legal aid application alone,” he wrote.
Despite the finding, Cornell went on to find the breach had affected her emotional state “in a minor fashion only.” He rejected McIntosh’s claims for punitive and aggravated damages but did award her partial indemnity costs of $6,500.
The case has echoes of Jones v. Tsige, a landmark case in which the Ontario Court of Appeal established the tort of intrusion upon seclusion. In that case, Winnie Tsige, an employee of the Bank of Montreal, had repeatedly accessed the personal financial records of fellow staff member Sandra Jones. Tsige was in a relationship with Jones’ former spouse.
Toronto privacy lawyer Gil Zvulony says McIntosh is a reflection of the limited damages courts are likely to award unless the plaintiff can prove substantial harm from the breach.
“It’s not going to be a windfall,” he says.
“I’ve personally seen some crazy cases where we’ve overcome that hurdle,” he adds, citing a case that ultimately settled in which someone posted naked photos of a woman on Facebook.
“The lesson here is if you get a claim like this, really take a look at what the damage is,” says Zvulony.
“Definitely, the minor stuff is going to be Small Claims Court,” he adds, noting plaintiffs take a risk that they may not get costs if the court ultimately determines it to be a small claims matter.
Lawyer Mark Hayes of Hayes eLaw LLP agrees. While this case "was still in the Superior Court, there is a real possibility that future intrusion upon seclusion cases will be before the Small Claims Court, which makes sense in view of the damages limits placed on such claims by the Court of Appeal," he says.
Update 1:40 pm.: Comments from Mark Hayes added.