On August 23, 2018, the Supreme Court of Canada announced that it would not hear an appeal from the Toronto Real Estate Board (TREB) in TREBs long-running legal battle against the federal Commissioner of Competition. As a result of this decision, TREB can no longer prevent the dissemination of listing and sold price data for properties in Toronto.
One of TREBs primary (and ultimately unsuccessful) arguments against the release of this data related to what TREB characterized as the privacy interests of the individual purchasers and sellers of property. Specifically, TREB argued that the Personal Information Protection and Electronic Documents Act (PIPEDA), which prohibits companies from distributing the personal information of their customers without their customers consent, applied to prevent the distribution of this data. In dismissing this argument, the Federal Court of Appeal, which made the decision that TREB was seeking to appeal further to the Supreme Court, noted that purchasers and sellers had consented to the distribution of this information when they signed their respective agreements with TREB agents and brokerages. The court also noted that the way in which TREB had raised this issue made it appear to be after-the-fact justification for anticompetitive behaviour, rather than a legitimate concern on the part of TREB.
While PIPEDA, and the privacy rights protected by PIPEDA, did not apply to prevent the distribution of listing and sold price data in this case, it is worth considering what PIPEDA does protect. Broadly speaking, PIPEDA applies to organizations (both commercial and governmental) that collect personal information in the course of carrying on their respective activities. PIPEDA sets out restrictions on the use and disclosure of such personal information, and prescribes limited circumstances in which a persons personal information can be used or disclosed without the consent of the person.
If a person feels that his or her personal information has been used by an organization in a manner that is contrary to PIPEDA, the person can make a complaint to the Privacy Commissioner of Canada (PCC). Ultimately, the complaint can be adjudicated by the PCC to determine whether the complained-of conduct amounts to a breach of PIPEDA. Recent decisions of the PCC (which can be accessed online) include a determination that an insurance company had breached PIPEDA by requesting and obtaining a customers credit score when the customer was submitting a claim, a finding that a company that provided property history reports that included a history of drug activity at the property was engaged in the impermissible distribution of personal information, and confirmation that a financial institution was not permitted to require customers to provide their social insurance numbers when opening accounts with the institution.
PIPEDA does not apply to the non-commercial collection of personal information by individuals. That does not mean, however, that a person who feels that his or her privacy has been breached by another individual does not have any recourse. In 2012, in a case called Jones v. Tsige, the Ontario Court of Appeal recognized that a cause of action exists for a type of invasion of privacy which the court labeled intrusion upon seclusion. In Jones, a dispute arose between two employees of the same bank. Ms. Tsige, who was in a relationship with Ms. Jones former husband, used her employee access to view Ms. Jones bank records more than 170 times. The court found that Ms. Tsige had no justification for doing so, and that Ms. Jones was entitled to claim damages for the wrongful accessing of her personal information.
The court held that general damages for intrusion upon seclusion could range up to $20,000, and held that, in this case, it was appropriate to award Ms. Jones damages at the midpoint of that range, being $10,000. (As an aside, it appears from a subsequent reported decision that Ms. Jones legal fees to obtain that degree of success were in excess of $125,000. While a full discussion about the risks and costs of extensive litigation is outside the scope of this article, this would appear to be a good example to illustrate the concept of the cost of success.)
The right to privacy is not absolute, and it would be difficult to argue that any person today would have a reasonable expectation of absolute privacy. However, it is clear that people do have the right to expect that their personal information will not be used without their consent, and that their private affairs will not be unduly intruded upon.
Timothy Duggan is a condominium lawyer and civil litigator with Horlick Levitt Di Lella LLP. Reasonable Doubt appears on Mondays. You can contact him on Twitter at @timmyd_ and tell him what you would like to read about in future columns.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Horlick Levitt Di Lella LLP or the lawyers of Horlick Levitt Di Lella LLP.
