The Manitoba Court of Appeal (the “Court”) has held that the tort of intrusion upon seclusion, as set out in Jones v Tsige, may allow family members, who claim to have suffered as a result of a breach of a privacy interest of another member, to advance a claim in their own right.
Background of Intrusion Upon Seclusion
In January 2012, the Ontario Court of Appeal released Jones v Tsige, in which it held that there is a tort of invasion of personal privacy in Ontario. For more on Jones v Tsige, see this article.
More recently, in Demcak v Vo, the British Columbia Supreme Court confirmed that, due to an existing statutory cause of action, there is no common law tort of invasion of privacy in British Columbia. For more on Demcak v Vo, see this article.
The Facts in Grant v. Winnipeg Regional Health
In Grant, the plaintiff, the sister of a man who died in an emergency waiting room after a prolonged stay there without receiving medical attention, commenced an action against the Winnipeg Regional Health Authority. In the amended claim against the defendants, the plaintiff, on her own behalf, sought damages for the alleged misuse of her brother’s personal medical information by hospital officials during statements to the media after his death. The motion judge determined that a third party cannot sue in negligence for the deliberate release of personal information of another person.
The Decision in Grant v. Winnipeg Regional Health
In short, the decision in Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 (“Grant”), is a successful appeal of the decision of the motion judge, which upheld the decision of the Master striking parts of an amended statement of claim as disclosing no reasonable cause of action.
In reasons dated May 4, 2015, Monnin JA provided an overview of the Ontario Court of Appeals adoption of the tort of intrusion upon seclusion in Jones v Tsige. Monnin JA went on to discuss the subsequent expansion of the tort in Hopkins v Kay, where the courts held that the cause of action for intrusion upon seclusion could be applied to a situation involving the unauthorized disclosure of patient hospital records. For more on Hopkins v Kay, see this article.
Based on the review of Ontario jurisprudence, Monnin JA held that it was clear that, had the deceased survived, he may have advanced on his own behalf a claim for intrusion upon seclusion. Further, the Court found that whether family members, who claim to have suffered as a result of a breach of a privacy interest, are in sufficient proximity to the victim in a tort context and are therefore able to advance a claim in their own right, remains an open question. As such, the Court stated that it would not be appropriate to dismiss the possibility of a court recognizing that damages suffered by immediate or close family members as a result of intrusion upon seclusion are compensable. The Court determined that the matter should be referred back to the motion court.
It is likely too early to know the significance of the Court’s decision in Grant, as the courts in Manitoba have not yet truly examined if the tort of intrusion upon seclusion can be expanded to give family members of a victim an ability to advance the tort. However, it will be interesting to see how other jurisdictions apply the ultimate ruling in Grant.
As noted in previous blog posts, the existence of a statutory cause of action in some provinces, such as British Columbia, may preclude consideration of a common law claim for intrusion upon seclusion. However, this does not seem to be the case in Manitoba as that province’s legislation expressly permits a plaintiff to bring a tort action. Similarly, a plaintiff in Ontario is not statute barred from advancing the tort of intrusion upon seclusion; however, it is still unclear how Ontario will treat any final decision in Grant.
Based on Demcak v Vo, it is unlikely that British Columbia will adopt any decision from Grant as the courts in British Columbia have seemingly held that the province’s statutory cause of action for invasion of privacy bars any such claim under tort law. Alberta will also likely not adopt any ruling from Grant as courts in Alberta have rejected the common law tort of invasion of privacy. Even though Saskatchewan and Newfoundland and Labrador have a statutory cause of action for invasion of privacy, it will be interesting to see if they follow Manitoba and affirm the final decision from Grant and hold that a statutory and tort cause of action for invasion of privacy can coexist, or if they adopt the British Columbia model and bar tort actions for invasion of personal privacy.