Use (Personal Information)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	286
Page Categories:	[Privacy], [Interference of Reasonable Enjoyment (LTB)], [Credit Reporting]
Citation:	Use (Personal Information), CLNP 286, <6c>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/12/22

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Funeral home's disclosure in pursuit of a debt allowed under the Act, 2006 CanLII 51517 (PCC)

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Paragraph 7(3)(b) is an exception to this requirement for consent. It states that an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is for the purpose of collecting a debt owed by the individual to the organization.

Consumer Reporting Act, R.S.O. 1990, c. C.33

1 (1) In this Act,

“credit information” means information about a consumer as to name, age, occupation, place of residence, previous places of residence, marital status, spouse’s name and age, number of dependants, particulars of education or professional qualifications, places of employment, previous places of employment, estimated income, paying habits, outstanding debt obligations, cost of living obligations and assets; (“renseignements sur la solvabilité”)

“personal information” means information other than credit information about a consumer’s character, reputation, health, physical or personal characteristics or mode of living or about any other matter concerning the consumer; (“renseignements personnels”)

Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5)

Protection of Personal Information in the Private Sector

2 (1) The definitions in this subsection apply in this Part.

...

business transaction includes

(a) the purchase, sale or other acquisition or disposition of an organization or a part of an organization, or any of its assets;

(b) the merger or amalgamation of two or more organizations;

(c) the making of a loan or provision of other financing to an organization or a part of an organization;

(d) the creating of a charge on, or the taking of a security interest in or a security on, any assets or securities of an organization;

(e) the lease or licensing of any of an organization’s assets; and

(f) any other prescribed arrangement between two or more organizations to conduct a business activity. (transaction commerciale)

personal information means information about an identifiable individual.

record includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record and any other documentary material, regardless of physical form or characteristics, and any copy of any of those things. (document)

...

4 (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or

(b) is about an employee of, or an applicant for employment with, the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.

...

(3) Every provision of this Part applies despite any provision, enacted after this subsection comes into force, of any other Act of Parliament, unless the other Act expressly declares that that provision operates despite the provision of this Part.

...

5 (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

(2) The word should, when used in Schedule 1, indicates a recommendation and does not impose an obligation.

(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

...

7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if

...

(d) the information is publicly available and is specified by the regulations; or

...

(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;

(b) for the purpose of collecting a debt owed by the individual to the organization;

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

SCHEDULE 1 (Section 5)

• Principles Set Out in the National Standard of Canada Entitled Model Code for the Protection of Personal Information, CAN/CSA-Q830-96

Principle 9 — Individual Access

• 4.9

Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.

• 4.9.5

When an individual successfully demonstrates the inaccuracy or incompleteness of personal information, the organization shall amend the information as required. Depending upon the nature of the information challenged, amendment involves the correction, deletion, or addition of information. Where appropriate, the amended information shall be transmitted to third parties having access to the information in question.

Jones v. Tsige, 2012 ONCA 32 (CanLII)

Issue 1. Does Ontario law recognize a cause of action for invasion of privacy?

(a) Introduction

[18] Professor Prosser's article picked up the threads of the American jurisprudence that had developed in the 70 years following the influential Warren and Brandeis article. Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

[19] Most American jurisdictions now accept Prosser's classification and it has also been adopted by the Restatement (Second) of Torts (2010). The tort that is most relevant to this case, the tort of "intrusion upon seclusion", is described by the Restatement, at 652B as:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

...

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones' position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige's employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

(c) Elements

[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71] The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

[72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

[73] Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada's elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that "[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public's interest to know."

...

[81] The four provincial privacy acts do not require proof of damage as an element of the cause of action. The Manitoba Privacy Act, however, is the only statute that provides specific guidance with regard to the determination of damages:

Considerations in awarding damages

4(2) In awarding damages in an action for a violation of privacy of a person, the court shall have regard to all the circumstances of the case including

(a) the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of that person;

(b) the effect of the violation of privacy on the health, welfare, social, business or financial position of that person or his family;

(c) any relationship, whether domestic or otherwise, between the parties to the action;

(d) any distress, annoyance or embarrassment suffered by that person or his family arising from the violation of privacy; and

(e) the conduct of that person and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant.

...

[86] Other cases have awarded punitive damages in consideration of society's abhorrence of the defendant's actions, a lack of remorse on the part of the defendant and the desire to promote specific deterrence: see [page266] Watts v. Klaemt; Lee v. Jacobson; Weber v. Jacobson, 1992 CanLII 8556 (BC SC), [1992] B.C.J. No. 132, 87 D.L.R. (4th) 401 (S.C.), revd 1994 CanLII 1419 (BC CA), [1994] B.C.J. No. 2459, 120 D.L.R. (4th) 155 (C.A.). In Hollinsworth v. BCTV, a division of Westcom TV Group Ltd., [1996] B.C.J. No. 2638, 34 C.C.L.T. (2d) 95 (S.C.), affd[1998] B.C.J. No. 241, 1998 B.C.C.A. 304 (C.A.), for example, the court assessed the plaintiff's damages for both breach of confidentiality and for the invasion of privacy at $15,000. The court there noted, at para. 27 (S.C.), that these damages were higher than usual for breaches of the Privacy Act in consideration of the "reprehensible conduct" of the defendant. In Hollinsworth, the defendant lied to a reporter, saying that he had consent to use a videotape of the plaintiff undergoing surgery to treat baldness. The video was then aired during a news broadcast. (d) Determining the quantum of damages

[87] In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:

(1) the nature, incidence and occasion of the defendant's wrongful act; (2) the effect of the wrong on the plaintiff's health, welfare, social, business or financial position; (3) any relationship, whether domestic or otherwise, between the parties; (4) any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and (5) the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

[88] I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified. [page267] 3. Application to this case

Citi Cards Canada v. Pleasance, 2010 ONSC 1124 (CanLII)

[26] Circumstances do not exist in the present case that justify disclosure of the information sought without Mr. Pleasance’s consent. Section 7(5) of the PIPEDA provides that, despite clause 4.5 of Schedule 1, an organization may disclose personal information for purposes other than those for which it was collected in any of the circumstances set out in sections 7(3)(a) to (h.2) of the Act. I will deal only with those exceptions that Citi Cards submits are applicable to the present case.

[27] Section 7(h.1) of the PIPEDA permits the disclosure “of information that is publicly available and is specified by the regulations.” Citi Cards argues that the information it seeks is of a type that is available publicly since the face amount of a mortgage is available from the Registry Office and the balance of a mortgage may be accessible from credit bureaus. Regulation SOR 2001-7 specifies five types of publicly available information. The current balance of a mortgage is not publicly available anywhere and therefore does not fall within this exclusion. For information to come within the exclusion in s. 7(3)(h.1), it must be collected from a publicly available source. Where a listing real estate agent advertised information from which the purchase price of a recently sold property could be calculated, the agent was held not be saved by the exclusion in s. 7(3)(h.1) even though the sale price was also available from the municipal/provincial property registry.[14] Insofar as Credit Bureau information is concerned, the disclosure of such information requires the individual’s consent. The Assistant Privacy Commissioner has held that information contained in Credit Reports does not lose its character as personal information and any collection or disclosure of it must comply with the PIPEDA.[15]

[28] Section 7(3)(i) permits disclosure as required by law. For the reasons given above, I agree with the submission of the Banks that there is no law requiring disclosure of mortgage statements to an execution creditor where the mortgagee has not taken steps to enforce the mortgage by issuance of a Notice of Sale or otherwise.

[29] Section 7(3)(c) permits disclosure “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.” It is a circular argument that the Court should make an Order for the production of records because their disclosure is permissible when an order is made for their disclosure. Citi Cards, in order to establish an exclusion under section 7(3)(c), must demonstrate a lawful basis, independently of the PIPEDA, for obtaining the Order for the disclosure of the information or records.

TSL-04311-19 (Re), 2019 CanLII 87609 (ON LTB)

24. The Tenant stated that the Landlord had recently contacted the individuals who the Tenant had used as references in his original tenancy application with the Landlord in 2017. The Tenant advised that on April 3, 2019, his references were contacted by the Landlord and they were informed that the Tenant was in arrears of rent and the amount of arrears owing. The Landlord confirmed that he had contacted the Tenant’s references as he felt that as references, they should assist him in convincing the Tenant to pay the rent owing.

25. The Landlord should not have disclosed information about the Tenant’s rental account to third parties. The Tenant’s payment history was personal information and pursuant to subsection 5(3) of the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5, should only be disclosed for purposes that a reasonable person would consider appropriate in the circumstances.

26. The Landlord breached the Tenant’s privacy rights by sharing information about his payment history with third parties and he ought to have known that this was unreasonable as the Tenant’s references would not have a right to know of the Tenant’s debts or credit history. We find that the privacy breach interfered with the Tenant’s reasonable enjoyment.

Conclusion and Remedy

27. The Tenant is entitled to an abatement of rent for the harassment and also for substantial interference. Based on the nature of these problems and the impact on the Tenant, we find that an appropriate amount for the harassing emails would be $250.00 and an appropriate amount for the substantial interference would be $500.00.

TNT-93514-17 (Re), 2018 CanLII 42879 (ON LTB)

32. The Tenants allege that the Landlord substantially interfered with their reasonable enjoyment, and harassed them, by repeatedly telling people that the Tenants owed money and would be evicted.

33. B.B. testified to the following incidents:

a. in July 2016 and May 2017, the Landlord served notices to terminate the tenancy for rent arrears;

b. in July 2016, the Landlord told the Tenants’ roommate that they owed rent and would be evicted;

c. in July or August, 2016, the Landlord told the Tenants’ daughter that the Tenants owed rent;

d. in May, 2017, an employee of the Landlord told a guest of the Tenants that they owed rent and would be evicted; and

e. also in May, 2017, the Landlord told one of his maintenance contractors that the Tenants owed rent.

34. Service of a notice of termination is the proper way for the Landlord to inform the Tenants that he believes they are in arrears. It is not interference or harassment.

35. It was improper for the Landlord to tell third parties about the Tenants’ rental account. The Tenants’ payment history was personal information which, pursuant to subsection 5(3) of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5, should only be disclosed for purposes that a reasonable person would consider appropriate in the circumstances. The Landlord should not have disclosed the information to persons who had no business knowing about the Tenants’ finances.

36. The disclosures substantially interfered with the Tenants’ reasonable enjoyment by breaching their privacy. I do not find the disclosures to have formed a pattern sufficient to constitute harassment.

37. B.B. testified that in 2016, the Tenants’ roommate moved out because the Landlord told him that they owed rent. I do not find that outcome to flow from the Landlord’s conduct; the roommate was free to move out whenever he chose. The only real impact the Landlord’s conduct had on the Tenants was that it annoyed them. A rent abatement of $150.00 will be awarded to compensate them for the annoyance. The Landlord will also be ordered to cease the offending conduct.

TST-05853-10 (Re), 2010 CanLII 79738 (ON LTB)

17. That being said, it was clearly inappropriate for the Landlord to give out the Tenants’ names and telephone number to the neighbour’s mother and urge her to call them. In the hearing before me the Landlord stated that people give out his number all the time and he gets calls from strangers. As I explained the nature of the relationship between the Tenants and the Landlord is a business relationship. When a business has to collect personal information from its clients in the course of doing business, it is a reasonable expectation of the clients that the business will not pass that information around without their consent. When we use our credit cards in stores we expect the store not to give our credit card data to strangers. We expect the airline company not to tell tour providers our addresses; and we expect our dry cleaner not to sell data about the kinds of clothes we wear. That is why the federal government has passed the Personal Information Protection and Electronic Documents Act [‘PIPEDA’] which basically says that information collected in the context of a business relationship cannot be disclosed to a third party without consent.

18. As a result, I find that by urging the neighbour’s mother to call the Tenants and by giving her the Tenants’ personal information so she could do so the Landlord substantially interfered with the Tenants’ reasonable enjoyment and breached section 22 of the Act.

19. This application is also based on section 23 of the Act which says: “A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.” I am of the view that “harassment” refers to any situation where a reasonable landlord ought to know that his or her actions would be unwelcome by any reasonable tenant. It seems to me that the Landlord here should have been aware of the fact that having the neighbour’s mother call the Tenants up to defend her daughter’s behaviour and to tell them there was no legal cause to evict her would not be a welcome experience for the Tenants. As a result, I am satisfied that by instructing the neighbour’s mother to call the Tenants the Landlord also breached section 23 of the Act.