7.

Invasion of Privacy

Another key point: the invader's object (dog, hockey stick, etc) can be part of the act
of invasion of privacy.

"On purpose" means "does the invader want something from this space"; if it's an
accident, you are instead sued for negligence; invasion of privacy must be
intentional.

Prof: for invasion of privacy, think about the end of Jones v Tsige for Canadian and
Ontario relevance; but remember that a theme of Jones is that Justice Sharpe
mentions that Invasion of Privacy is complicated to understand, and that Canada
has not done as good of a job analyzing it as other countries. Also, provinces (and
Canada) have pieces of legislation about privacy, so there are specific topics that
could be part of the Invasion of Privacy tort that were extracted. Therefore, some
judges might use the word "nuisance" or "trespass to person" as synonyms to
explain this tort of Invasion of Privacy, but we should focus on Jones as being the
ultimate case. Think about the other cases as to why Sharpe has to talk about what
he does in Jones.

7. Invasion of Privacy 1
 For Invasion of Privacy (or trespass to person), whatever is being discussed as
space means that it is not public; the argument as to whether the space is
public or private can be very useful for the defendant. Is reading a book on a
bench in a mall a private moment/space? If the plaintiff cannot make it clear that
their space can be presumed to be private, they are in trouble. What if you are
in a hotel room and you hang a "do not disturb" sign on the door? Hotel policy
might dictate how long they will wait before entering the room despite the sign
still being hung.

The idea of personal space vs public space can be very confusing/overlapping.

Prof says you should think about things that you wouldn't do in public, or things
that are personal to you.

Key Terms:
Invasion of Privacy: Where one person intentionally (or recklessly) intrudes,
physically or otherwise, upon the seclusion of another or his/her private affairs or
concerns, this person is subject to liability to the other for invasion of his privacy, if
the invasion would be highly offensive to a reasonable person.

Motherwell et al. v. Motherwell, (1976) 73

DLR (3d) *Alberta SC*
FACTS

The defendant was the daughter of the plaintiff WM and the sister of the plaintiff
JM who was the husband of the plaintiff DM.

The defendant made numerous telephone calls to the male plaintiffs at their
homes as well as to JM's place of business. The gist of the telephone calls was
a tirade of false accusations and statements against WM's housekeeper and
JM's wife, the plaintiff DM. The defendant also wrote letters to the plaintiffs
making unfounded statements and accusations concerning the plaintiffs' affairs.

The WM (father) claimed the constant harassment resulted in him reaching the
point where he was afraid to answer his telephone as the defendant's calls were

7. Invasion of Privacy 2
 so upsetting to him. JM (brother) testified that the calls from the defendant were
upsetting in his business and in his home life to the extent that his health
suffered. At trial nominal damages were awarded and an injunction was granted
enjoining the defendant from telephoning the plaintiffs.

PROCEDURAL HISTORY

At trial the defendant that invasion of privacy did not come within the principles
of private nuisance and there was no remedy at common law available for
invasion of privacy.

The defendant appealed from a trial judgment awarding the plaintiffs nominal
damage and granting an injunction to prevent the defendant from telephoning
the plaintiffs.

ISSUES

1. Whether the phone calls amounted to undue interference with the plaintiffs'
comfortable and convenient enjoyment of their respective homes.

HOLDING

Defendant's appeal dismissed; defendant loses.

RATIO

1. The invasion of privacy by abuse of the telephone system is a private nuisance

for which an injunction will be granted even if no special damage is proven.

ANALYSIS

The courts have consistently demonstrated that common law principles can be
adopted to serve the changing and expanding needs of society; the principles
relating to fiduciary duties, to restitution or unjust enrichment and to negligence
have all been found applicable to fact situations or categories which would have

7. Invasion of Privacy 3
 been virtually unknown when the basic principles were first established. The
existence today of the ability of a person to interfere with another person's
privacy by means of the telephone is a new fact situation or category and it
must be examined in relation to the basic principles of nuisance to determine if
such a situation or category is within the principle of private nuisance.

Although the concept of nuisance originally involved the existence of

physical injury to land, the principle has been expanded to cover the
situation where only the wronged party's use and enjoyment of land is
substantially interfered with.

The defendant by making telephone calls to the plaintiff which were

unwanted accompanied by false accusations and statements clearly
interfered with the comfortable and convenient enjoyment by the plaintiffs of
their homes. The present facts did not result in a change in the principle of
private nuisance but were only a new category or fact situation to which the
principle applied.

The invasion of privacy by abuse of the telephone system is a private

nuisance for which an injunction will be granted even if no special damage
is proven. DM (the sister-in-law of the defendant) had a right of action in
nuisance as she was entitled to the comfortable and convenient enjoyment
of the matrimonial home.

TL;DR: The male plaintiffs (father and brother) had established a claim in
nuisance by invasion of privacy through abuse of the system of telephone
communications. The female plaintiff (sister-in-law) was entitled to the same
relief. As to the unwanted mail, the evidence did not show that the plaintiffs had
been unduly disturbed in the enjoyment of their respective premises.

CONCLUSION/CLASS COMMENTARY

Prof: nuisance can be a way to notice invasion of privacy

Prof: nuisance can be a tort on its own, but it is also interwoven into other torts
as a concept

Prof possible exam questions: how can you compare and contrast Jones to this
case?

7. Invasion of Privacy 4
 Prof takeaway: why should/shouldn't we think the female spouse is deserving
attention in this case?

Other takeaways:

Even if substance is "agreeable in nature", the way of bothering (phone

calls) can be enough for nuisance

Even if someone only occupies rather than controls the space, that person
can sue as well. Helpful if occupancy is of a "substantial nature".

If issue of trespass is found, then it is likely not a nuisance.

Question: This case is pre-Jones. What qualities about it suggest that to

you, now that you have read Jones. In other words, how would this case
played out had it followed Jones?

Hollinsworth v BCTV, (1998) CanLII 6527 (BC

CA)
FACTS

In 1986, Hollingsworth (plaintiff) underwent hair transplant surgery by Williams,

a doctor from Look International. He signed a contract giving Look consent to
videotape the procedure to use for the purpose of educating other doctors. A
cameraperson for BCTV filmed the operation and the videotape was given to
Look.

In 1993, BCTV (defendant) was doing a feature on baldness. The

cameraperson who had done the videotape and a reporter were assigned to the
task. They interviewed Williams who offered them the tape of Hollingsworth and
phoned Van Samang from Look to request it. BCTV asked Van Samang
whether the patient consented to this use of the videotape and were assured
that he had. Van Samang also told them he did not know Hollingsworth's
current whereabouts.

BCTV broadcast part of the videotape on the news, including a full shot of
Hollingsworth's face.

7. Invasion of Privacy 5
 PROCEDURAL HISTORY

Hollingsworth sued BCTV, Williams, Van Samang and Look. The action against
Williams was discontinued.

The TJ held Van Samang and Look liable for $15,000 and dismissed the case
against BCTV. Hollingsworth had sought damages against BCTV for
defamation, breach of the obligation of confidentiality, and breach of section 1 of
the Privacy Act. Hollingsworth appealed the BCTV dismissal.

ISSUES

1. Whether BCTV knew or should have known that the tape was confidential. (No)

HOLDING

Appeal denied; Hollingsworth loses appeal against BCTV.

RATIO

Under the Privacy Act, violation of privacy is actionable

1. Tort of violation/invasion of privacy is actionable without proof of damage

where a person wilfully and without a claim of right violates the privacy of
another.

2. The degree of privacy to which a person is entitled is that which is

reasonable in the
circumstances.

3. In determining whether the act violates privacy, regard must be given to the
nature, incidence, and occasion of the act or conduct and to any domestic
or other relationship between the parties.

4. Note: "Wilfully" was interpreted as an intention to do an act which the

person doing the act knew or should have known would violate the privacy
of another person (that was not established in this case).

7. Invasion of Privacy 6
 ANALYSIS

The action for defamation had no basis as the videotape did not contain false
statements. Given that Williams did not mention confidentiality to BCTV and
Van Samang denied that there was a confidentiality issue, it could not be
argued that BCTV knew or should have known the tape was confidential.
Therefore, the cause of action based on an obligation of confidentiality failed.
BCTV did not wilfully violate Hollingsworth's privacy and the Privacy Act did not
apply.

CONCLUSION/CLASS COMMENTARY

Prof: is this a unanimous decision? Yes. Who writes it for the court? Lambert
JA. What stood for you the most in the decision? Were you surprised after
reading the facts that BCTV was sued?

7. Invasion of Privacy 7