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November 9, 2021

How much is your privacy worth?

By David Thiessen

At its best, the law helps people keep their personal lives private.

Sometimes we give up a margin of privacy for certain benefits, such as showing proof of immunization to travel. Other times, we choose to share our private lives with those we trust.

But then, there are times where our privacy is unreasonably violated. Courts across Canada have recognized breaches of privacy in a variety of forms: from corporations leaking personal data to “revenge porn” and spy cams.  

This article will explore the law of privacy in Manitoba with an overview of how Manitoba courts tend to compensate for different types of privacy breaches.

The bottom line? Manitoba courts have not been particularly generous in this type of law so far, but the right case could buck the trend.

The Privacy Act

In 2008 Manitoba enacted The Privacy Act, which created the “tort” of violation of privacy. Where one person 1) substantially, 2) unreasonably, and 3) without claim of right, violates the privacy of another person, the violated person can sue for damages.

When awarding damages under The Privacy Act, a judge must consider the nature of the act, the effect on the victim and/or their family, what types of relationships were at play, and how the violator acted before and after the violation.

Overall in Manitoba, surprisingly few reported cases have drawn on The Privacy Act to compensate for violations.

The $20,000 “Cap”

The leading case on privacy damages is Jones v Tsige, a case decided by the Ontario Court of Appeal in 2012. Tsige worked at a bank and used her credentials to view her partner’s ex-spouse’s personal banking records 174 times.

The Ontario Court of Appeal considered the same factors as those listed in the Manitoba legislation and noted that damages ought to range from nominal damages to $20,000 in the typical case. Jones was awarded $10,000 in that case, right in the middle of the range. The $20,000 “cap” in Jones continues to be cited in typical privacy cases.

Manitoba’s Range

Even with that leading case, very few reported Manitoba cases have awarded damages for a breach of privacy much above the “nominal” range. In Ironstand v The City of Winnipeg et al, the police responded to a 911 call and entered the plaintiff’s hotel suite without justification. The court awarded $2,500 for this breach of privacy.

Similarly, in OCB et al v The City of Winnipeg, the police entered a  hotel room without a warrant. The court found this was an unjustified invasion of privacy and even said that “it is difficult to consider a more egregious invasion of privacy.”

And yet, the court awarded $3,500 per person, an award that the judge described as “moderate.” (Note that some damages were awarded on other grounds.)

In the 2021 case of Zeliony v Dunn et al, the Manitoba Court of Queen’s Bench found that it was not a breach of privacy when a condo owner set up a porch camera in a common condominium entryway. The defendant had the right to keep an eye on his storage locker using the camera, based on the facts of this case.

Despite that conclusion, Associate Chief Justice Perlmutter helpfully ran through an analysis of privacy damages across the country to determine what compensation would have been reasonable if the plaintiff had won. The cases surveyed tend to range from a low of $50 to $60,000.  ACJ Perlmutter arrived again at the low end of the range, $2000.

Larger privacy damages have been awarded in several “revenge porn” cases out of Ontario: Jane Doe 464533 v D(N) and Jane Doe 72511 v Morgan. These cases far exceed the $20,000 “cap.” Both courts awarded $50,000 in cases where previous romantic partners posted intimate videos online following a break-up. Notably, the courts here considered damages based on sexual assault precedents.

Not everyone who claims a privacy breach can establish that it is unreasonable or substantial. Even where there is a breach, Manitoba does not tend to award high damages — at least not on the facts before the courts so far.

That said, across Canada courts are recognizing that some types of privacy violations are severe and deserve significant compensation. Perhaps the right case could start a new Manitoban trend.

David Thiessen is an associate at Fillmore Riley LLP who practises primarily in the area of civil litigation. You may reach him at dthiessen@fillmoreriley.com or (204) 954 6430. 

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