The Latest on Invasion of Privacy

The recent case of Stevens v. Walsh provides a useful reminder about the current status of the tort of intrusion upon seclusion, more commonly thought of simply as invasion of privacy.  In one respect, however, this case may push the boundary of the tort to a new level.

The tort of intrusion upon seclusion requires proof of three elements.  Firstly, the defendant’s conduct has to be intentional.  Secondly, the defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification.  Thirdly, a reasonable person would regard that invasion as highly offensive causing distress, humiliation or anguish.

In this case, both the plaintiff, Mr. Stevens, and the defendant, Ms. Walsh, were Air Canada pilots.  Mr. Stevens was in the process of getting a divorce from Mrs. Stevens.
Ms. Walsh and Mrs. Stevens were friends.

There is an Air Canada password protected website accessible only to Air Canada employees showing pilots’ schedules.  A pilot can add another pilot to a “friends list” so that friends can check that pilot’s schedule is.  Mr. Stevens had added Ms. Walsh as a friend so that Ms. Walsh could access Mr. Stevens’ calendar.

In this case, Ms. Walsh testified that her friend, Mrs. Stevens, had called her. Mrs. Stevens was very upset and indicated that the extent to which her estranged husband worked was an issue in her divorce case.  Ms. Walsh assumed that Mrs. Stevens would have access to her husband’s schedules but Mrs. Stevens was so frantic that Ms. Walsh, wanting to keep her friend calm, accessed the site and sent Mr. Stevens’ scheduling information to Mrs. Stevens.  Ms. Walsh subsequently swore an Affidavit setting out the same information.

Mr. Stevens subsequently sued Ms. Walsh.  Mr. Stevens’ complaint was not that Ms. Walsh had accessed Mr. Stevens’ flight schedule but rather that Ms. Walsh had passed that information along to someone else.

The Court found that the tort of intrusion upon seclusion had been committed by Ms. Walsh.  The Court was satisfied that for an employee to obtain information under the guise of review for legitimate work related purposes and then use it by sharing it with her colleague’s estranged wife for use against the colleague in a divorce proceeding, amounted to a significant invasion of personal privacy which, on an objective basis, was highly offensive.

The interesting aspect of this particular case has to do with the nature of the information itself.  If the extent to which Mr. Stevens spent time doing his job was an issue in the divorce case, one would have thought that his work schedule would have to have been produced in the litigation itself.  Ms. Walsh provided a copy of the schedule, or the information in it, only to Mrs. Stevens.  She did not make the information available to anyone else.  In this case, it would seem that Mrs. Stevens ultimately would have been able to obtain that information anyway and indeed, that Mr. Stevens would have been obliged by law to provide it.

According to this case, however, this additional aspect of the matter is not relevant.  Furthermore, the fact that Ms. Walsh had been given permission by Mr. Stevens to access this information was similarly irrelevant.  According to this case, if a person obtains information through lawful means and then disseminates it to someone who otherwise would be entitled to it anyway, this can still amount to unlawful conduct.

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