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Speaker's Corner: Hidden camera has implications for privacy law

Late last year, the Ontario Superior Court of Justice released Patel v. Sheth, the next in a series of cases following the 2012 recognition of a tort of intrusion upon seclusion in Jones v. Tsige.

While Patel is deeply rooted in a messy matrimonial context, including issues involving support payments and equalization of property, as well as allegations of assault and battery, the case is important for Ontario lawyers to consider when it comes to the analysis and finding of an invasion of privacy. I believe the novelty of the tort and its potential impact on modern business means lawyers can learn from the case about how to approach intrusion upon seclusion cases with a business risk perspective.

The proceedings arose out of the breakdown of the brief marriage between husband Pravinchandra Patel and wife Annely Sheth. After a few short years of marriage, Patel and Sheth had separated (for roughly a year), reconciled and then separated once more for good. During the reconciliation, when Sheth began to gradually move back into the family home, Patel surreptitiously installed a camera inside of a BMW keychain sitting on an armoire in the bedroom. The camera looked across the bedroom and into the bathroom.

The impetus for the initial separation was an argument that occurred, where Sheth claimed Patel assaulted her. The charge was withdrawn on the condition that Patel enter into a peace bond.

After this incident, Patel had put the camera in Sheth’s bedroom. After the camera was found, Patel denied knowing about the camera’s existence during the discovery process. Later in the proceedings, Patel claimed that he had placed the camera as a defence against future claims of assault.

Drawing on previous decisions, the court laid out the test for intrusion upon seclusion (or invasion of privacy) and distinguished its key features. These are:

•  The defendant’s intrusion must be intentional (or reckless);

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

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

The court found that the evidence had successfully satisfied the test for intrusion upon seclusion. Patel admitted to secretly planting a camera, his explanation for doing so made no sense and he repeatedly lied about his actions under oath. Furthermore, the bedroom and bathroom are very private rooms. While the photos did not depict anything explicit, the potential to have done so was real, and Sheth was embarrassed and shocked by the incident.

As established by Jones, damages for intrusion upon seclusion are modest and generally capped at $20,000. Punitive damages are not outlawed, but they require exceptional facts. In Jones and Patel, the court listed factors identified in the Manitoba Privacy Act as a “useful guide” for determining the range of damages. These were:

•  The nature, incidence and occasion of the defendant’s wrongful act;

•  The effect of the wrong on the plaintiff’s health, welfare and social, business or financial position;

•  Any relationship, whether domestic or otherwise, between the parties;

•  Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

•  The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

While Sheth did not plead punitive damages, she submitted that the court should grant them anyway, given the exceptional nature of the invasion. She asked for $50,000. In contrast, Patel argued that no harm was caused and thus no damages should arise from his role in installing the camera.

In its analysis, the court determined that punitive damages were not supported on the facts and awarded $15,000 in damages based on a balancing of the following factors:

•  The nature of the intrusion: It took place in a bedroom and bathroom, where the privacy interests of Sheth were significant;

•  The intrusion took place within a domestic relationship;

•  Although Sheth was embarrassed and shocked, there was no medical information filed to support any significant effect on her health or welfare;

•  The conduct of Patel in lying about the intrusion at his discovery (and blaming Sheth for the camera) was “extremely aggravating and demonstrate[d] a lack of any insight into what he did as being wrong.”

While Patel is situated in the matrimonial context, any analysis of this tort is valuable insight from a business risk perspective. Notably, proof of harm to a recognized economic interest is not an element of the cause of action. Assuming the test for the tort of intrusion upon seclusion has been met, a court could award damages without proof of further harm.

The evolution of this tort has significant implications for organizations that use, curate or store personal data, especially in large quantities. A serious breach affecting many individuals has the potential to create liability even without concomitant economic loss.

As Justice Robert Sharpe noted in Jones, “The question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years.” The debate in Canada is clearly far from over, and it will be interesting to see whether other jurisdictions will adopt a common law cause of action (as in Ontario), enact a statutory cause of action (as in British Columbia) or both.

Roland Hung is a lawyer in Osler Hoskin & Harcourt LLP’s Toronto office, practising technology and privacy law.

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