Federal Court Of Appeal Comments On New Tort Of 'Publicity Given To Private Life', Overturns Certification Order

The Federal Court of Appeal has provided some guidance on the recently-recognized tort of intrusion upon seclusion and the as-yet-unrecognized tort of publicity given to private life.

In a class action decision largely reversing a Federal Court certification order, 2016 FCA 191, the Court of Appeal suggested that recognition of the tort of publicity given to private life may be just around the corner and provided some insight on what the test for such a tort might be. Notably, the Court held that the tort requires "publicity" of a broad scope—not merely to a small group. The Court also suggested that publication to persons with confidentiality obligations is not tortious.

The Court also reiterated that another privacy tort already established in Canadian law, intrusion upon seclusion, requires bad faith or reckless conduct, and that an isolated administrative error will not suffice. Companies can take comfort from the requirement for intentional conduct, but should remain cautious: while an "isolated" administrative error will not suffice, an adverse inference could potentially be drawn from a repeated error.

The facts: revealing return addresses

The class action was prompted by packages mailed to medical marijuana program registrants between November 12 and 15, 2013. Those packages were marked with a return address of "Marihuana Medical Access Program Health Canada". Apart from these packages—called an "administrative error" by the Deputy Minister of Health Canada—mail to program registrants was marked with only "Health Canada" as the return address.

A class action launched by two recipients of the packages was certified on July 27, 2015, by Phelan J. of the Federal Court. The class action raised the recently-recognized tort of intrusion upon seclusion and the as-yet-unrecognized tort of publicity given to private life, among other causes of action.

In a unanimous decision authored by De Montigny J.A. released June 24, 2016, the Federal Court of Appeal largely overturned the certification order, leaving the plaintiffs with a class action certified only in negligence and breach of confidence. In holding that the plaintiffs failed to plead material facts to support the other causes of action, the Court of Appeal cast light on the elements of the nascent tort of publicity given to private life, and reaffirmed the intentionality requirement for intrusion upon seclusion.

Publicity given to private life: a broad scale required

The Court of...