Gestures Directed at Alleged Invader of Privacy Defeat Claim of Intrusion Upon Seclusion

Can a claim of intrusion upon seclusion be defeated by the actions of the complainant at the time of the alleged intrusion? In Grech v. Scherrer, 2018 ONSC 7206,  an Ontario court appears to have decided that question in the affirmative.

Context

The case itself is a ruling on the admissibility of video surveillance evidence taken by the defendant in an assault case. The plaintiff and the defendant were neighbours, and the relationship between the two deteriorated to the point that the plaintiff alleged he was attacked by the defendant in the front yard of his home. The defendant asserted that it was in fact the plaintiff who was the aggressor in any altercation which occurred. Various associated claims, counterclaims, justifications, and defences were pleaded.

The defendant sought to introduce into evidence surveillance videos he took of the plaintiff prior to the alleged assault and wished to use this evidence both as part of his cross-examination of the plaintiff and as substantive evidence. There were a total of 8 surveillance videos, and ultimately 3 were allowed into evidence.

All the videos were taken by the defendant, who had used an camcorder to take certain videos of the plaintiff almost a decade earlier. In all the videos, the camcorder had been on the defendant’s property, and had recorded either the activities of the plaintiff on the plaintiff’s own property outdoors (e.g., in his backyard), the plaintiff’s own property indoors (e.g., through a window into the plaintiff’s house), or in shared or public space.

A number of the videos were excluded on the basis of relevance. Of the remaining videos determined by the court to be relevant, the court then considered whether they should be excluded for other reasons. This included the fact that plaintiff alleged the defendant, in taking the videos, had committed the tort of intrusion upon seclusion as the video surveillance was taken while the plaintiff was on his own property and, in the case of at least two videos, they were taken while the plaintiff was inside his own home.

Intrusion Upon Seclusion Claim

The court followed the test set out by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32, which established the tort of intrusion upon seclusion in Ontario, quoting Jones (paras. 70 and 71):

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would [page262] include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action.

In the current case, the court turned its attention to the video in which the defendant had taken by angling the camera, while on the defendant’s property, through the kitchen window of the plaintiff. In determining there had been no intrusion upon seclusion, the court found it significant that there had been no act of trespass in obtaining the video (notwithstanding an act of trespass is not a requirement of the tort).

The court acknowledged that the plaintiff had been recorded while in his own home, but noted that the activity recorded consisted of actions which were primarily directed by the plaintiff to the defendant’s home (e.g., a raised middle finger, a “cheers” gesture with a drink, gesturing that he thought the defendant was crazy).

For these reasons, the court concluded that there was no reasonable expectation of privacy on the part of the plaintiff as he clearly wanted his actions to be seen by the defendant. In these circumstances, the court found that it could not be said that the defendant invaded the plaintiff’s private affairs or concerns. Further, the court conclude that a reasonable person would not regard this alleged invasion of privacy as highly offensive causing distress, humiliation or anguish.

Interestingly, in describing the various videos, the court focused primarily on the plaintiff and defendant but did observe that “[d]uring the course of this video the plaintiff’s wife appears on a couple of occasions and appears to be working at the stove. She does not look out her kitchen window and her attention is exclusively focused on her work in the kitchen.”

From this description, it does not appear as though the wife engaged in any activity that was directed at the defendant. The court did not consider whether the tort of intrusion upon seclusion could have been maintained on the basis of her actions (or lack thereof), nor what impact, if any, such a finding would have had on the admissibility of the video.

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Kirsten Thompson

About Kirsten Thompson

Kirsten Thompson is a partner in our Corporate group in Toronto and is the national lead of the Transformative Technologies and Data Strategy group. She is also a key member of the Privacy and Cybersecurity group. She has both an advisory and advocacy practice, and provides privacy, data security and data management advice to clients in a wide variety of industries.

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