12 | Privacy Litigation
Curry, Tom
Lenczner Slaght Royce
Smith Griffi n LLP
(416) 865-3096
tcurry@litigate.com
Recognized nationally
as a leading trial and
appellate counsel, Mr.
Curry has a record of
success in commercial
litigation, class actions,
arbitrations, business
disputes, administrative
law, judicial review and
intellectual property.
Deane, Robert J.C.
Borden Ladner
Gervais LLP
(604) 640-4250
rdeane@blg.com
Mr. Deane practises
international and
domestic commercial
arbitration, commercial
and IP litigation, and
advertising/competition
law. He appears in all
levels of court, as well
as LCIA, ICC, ICSID, AAA,
and other arbitration
proceedings.
Dimock, Ronald E.
Dimock Stratton LLP
(416) 971-7202
rdimock@dimock.com
Mr. Dimock's IP practice
embraces patents,
trade-marks and
copyright litigation. He
is an engineer, certifi ed
specialist in civil litigation
and IP law, and a fellow
of the American College
of Trial Lawyers and the
Chartered Institute of
Arbitrators.
D'Silva, Alan L.W.
Stikeman Elliott LLP
(416) 869-5204
adsilva@stikeman.com
Mr. D'Silva's core practice
areas include defence of
class actions, corporate/
commercial disputes,
securities litigation and
insurance litigation. He
appears before all levels
of courts, and has also
acted as a mediator,
arbitrator and expert
witness.
Desrosiers, Martin
Osler, Hoskin &
Harcourt LLP
(514) 904-5649
mdesrosiers@osler.com
Mr. Desrosiers focuses on
insolvency and fi nancial
restructuring law. He
represents fi nancial
institutions, trustees,
receivers, monitors,
debtors and creditors'
committees. He has
lectured and written
extensively, and is an
IIC member.
Doris, James W.E.
Davies Ward Phillips
& Vineberg LLP
(416) 367-6919
jdoris@dwpv.com
Mr. Doris specializes in
general civil litigation
with an emphasis
on shareholder and
oppression remedy
actions, class actions,
contested mergers
and acquisitions and
securities disputes,
insolvency, gaming and
competition matters.
LEXPERT®Ranked Lawyers
by legislatures), as was decided in BC and Alberta cases. If
those laws need to be updated, he says, legislatures should
make those decisions.
" ere's no question in my mind that this issue is going to
go to the Supreme Court of Canada, at some point." Glaspell
says the Court of Appeal went seriously wrong in interpret-
ing the Charter of Rights and Freedoms as recognizing privacy
as a fundamental value worthy of protection. Additionally,
he says, the Charter governs the activities of the state and
does not apply to the actions of individuals.
"One can understand what was motivating the court," he
says. "It was wrong that [Tsige] was there, looking at those
records." In the end, he says, it comes down to one's views on
judicial activism, and "reasonable people can disagree."
Justice Sharpe, in the Jones decision, appears to anticipate
such objections. He cites case law to fi nd a Charter value
upholding "an independent right to privacy, held by all citi-
zens," and adds that "the Supreme Court has acted on several
occasions to develop the common law in a manner consis-
tent with Charter values."
With regard to existing statutes, he says, "it would take a
strained interpretation to infer from these statutes a legisla-
tive intent to supplant or halt the development of the com-
mon law in this area." He adds that federal and provincial
statutes all focus on state intrusions and have "nothing to do
with private rights of action between individuals." In conclu-
sion, he says, "we are presented in this case with facts that
cry out for a remedy…. In my view, the law of this province
would be sadly defi cient if we were to send Jones away with-
out a legal remedy."
Peter Ruby, with Goodmans LLP in Toronto, says the big-
gest unknown surrounding the new tort is its extension into
class actions against organizations.
"I don't view it as surprising that, in this egregious situa-
tion [in Jones], the court did what it did," Ruby says. " is
[decision] doesn't say you get damages for hurt feelings in
normal and everyday life," he says. "In egregious circum-
stances, reasonable people could come to the conclusion
that there should be a remedy. e more interesting question
is, to what extent the employer is liable for the actions of an
employee." He notes that, in Jones, the bank was not named
as a co-defendant.
"An employer doesn't have to do anything wrong to be
responsible for the actions of an employee," Ruby says. But
there has to be "a suffi cient connection between a person's
job description and a misdeed." In a privacy breach, he says,
employer liability might extend to fi le clerks, but not janitors.
To protect themselves from potential vicarious liability, he
says, employers need to have policy, supervision and training
in place to prevent abuses of privacy. ese should be backed
by electronic access controls, such as passwords, and elec-
tronic systems monitoring, such as password tracking.
"Don't keep what you don't need," and be sure deleted fi les
are fully destroyed, he advises employers.
Catherine Beagan Flood, a privacy litigation specialist at
Blake, Cassels & Graydon LLP in Toronto, says she thinks
recent class actions are stretching intrusion upon seclusion
to the breaking point, so much so that she expects that the
Ontario Court of Appeal, which originally recognized the
new tort, may well strike down its extension to class actions
through vicarious liability.
"It's important to recognize that this tort is an extremely
narrow one," Beagan Flood says. e facts in Jones, she says, fell
outside all existing statute law in that they dealt with an in-
