Breach of Confidence (Tort)

Doe 464533 v N.D., 2016 ONSC 541 (CanLII)

[18] In November 2015, the Province of Manitoba enacted legislation to create the tort of “non-consensual distribution of intimate images”: see The Intimate Image Protection Act, C.C.S.M. c. I87, s. 11, which came into force on January 15, 2016. No other legislature has so far passed similar legislation. This case, therefore, raises legal questions about the availability of a common law remedy for victims of this conduct, and the legal basis upon which such claims might be founded. Counsel for the plaintiff informed the court that she had been unable to locate any reported decision in Canada concerning a victim seeking civil damages on these or similar facts and my research has not revealed one. This case is possibly the first.

[19] For the reasons that follow, I have concluded that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.

[21] In Grant v. Winnipeg Regional Health Authority (2015) M.J. No. 116 (C.A.), the Manitoba Court of Appeal summarized the law in relation to claims for breach of confidence as follows (at paras. 118-119):

Tort law has recognized that a breach of confidence in certain circumstances may create a cause of action (see Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), (1989) 2 S.C.R. 574; and Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), (1999) 1 S.C.R. 142). Courts have recognized that the unauthorized use of confidential information to the detriment of the party communicating it, and from which damages ensue, may lead to a cause of action. The elements required to make out the tort of breach of confidence are:

a) that the information must have the necessary quality of confidence about it;

b) that the information must have been imparted in circumstances importing an obligation of confidence; and

c) that there must be unauthorized use of that information to the detriment of the party communicating it (see H.R.G. v. M.S.L., 2007 BCSC 930, 75 B.C.L.R. (4th) 141; Canada (Attorney General) v. Rundle (c.o.b. NEC Plus Ultra), 2013 ONSC 2747, 16 B.L.R. (5th) 269 (QL); and Sabre Inc. et al. v. International Air Transport Association et al., 2011 ONCA 747 at para. 14, 286 O.A.C. 246).