A recent motion decision from the Ontario Superior Court of Justice highlights the importance of having clear internal communications about privacy policies. Perhaps equally important, the decision should make organizations uneasy about how they respond to privacy breaches – especially when notifying the affected parties.

We should start by saying none of the allegations in the lawsuit have been proven and the decision can be read in full at the link, below.

The case centers on a music teacher, Mr. Hamlin, at Collingwood Collegiate Institute (“the school”), a secondary school in Simcoe County District School Board (“the Board”). The school stored some expensive musical instruments, which were owned by a third party for renting to students. There had been issues with theft. Over 10 years ago, the school installed visible cameras in the storage room. On that occasion, the school was involved with the camera installation and posted signs informing people that they were under surveillance.

After some time, there were changes to the music facilities and the old cameras stopped working. Mr. Hamlin and a colleague purchased several new cheaper cameras with their own money and had them installed in other parts of the music facility. The cameras were disguised inside smoke detectors. He states these were to monitor for theft and there is no evidence that the new cameras were used for any sinister purposes. Footage from the cameras was stored on a hard drive on site. Mr. Hamlin alleged that the school Principal was eventually made aware of the cameras, albeit not their installation.

During a school inspection, the cameras were discovered.  The Board and OPP were notified. The OPP initially investigated and determined there were no reasons to lay criminal charges. The Board, however, recognized a potential privacy breach and consulted with the Information and Privacy Commissioner of Ontario (“the IPC”).

The Board sent an initial notice letter to any people who entered the surveilled rooms as well as their parents, if appropriate. The letter included reference to a breach of privacy under the Municipal Freedom of Information and Protection of Privacy Act (“the Act”). The decision does not explicitly comment on what sections of the Act were breached but we note that the Act safeguards against the collection of information without consent. The IPC also issued a “fact sheet” on the use of video surveillance, which mandates that institutions make people aware of the use of video surveillance.

The Board’s letter was not only sent to the parties but also posted on the Board’s website. The letter advised of the potential breach under the Act with some details as to how the cameras came to be installed and removed. The letter also advised the Board had consulted the IPC and the OPP and ultimately expressed “sincere regrets” for the breach. The letter did not explicitly identify Mr. Hamlin.

Afterwards, Mr. Hamlin allegedly sent an email to some of the parents to explain the situation, which spurred another letter from the Board. The Board suspected that Mr. Hamlin obtained the parents’ contact information from the school system and used it for personal reasons. Mr. Hamlin said that he used his own personal directory of contact information.

The Board wrote another letter to the affected parties about their personal contact information possibly being obtained from the school directory.

There were several news articles written about the overall situation with Mr. Hamlin. He commenced an action against the Board and the Superintendent in defamation. He alleged that the letters to the affected parties were defamatory, in part, because they implied he was involved with something criminal / nefarious and, despite not referencing his name, it was obvious to the readers that he was the subject of the letter.

The defendants brought a motion pursuant to Section 137.1 of the Courts of Justice Act. This section requires that a court dismiss an action if it targets an “expression” made in a “matter of public interest”. However, the court will not dismiss the action if the following are true:

  1. (a) there are grounds to believe that,
    1. (i) the proceeding has substantial merit, and
    2. (ii) the moving party has no valid defence in the proceeding; and
  1. (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

The plaintiff admitted that his defamation action related to an “expression” made by the defendants and he did not really dispute that potential privacy breaches are a matter of public interest.

Notably, on this type of motion, the court does not engage in fact-finding. It is not akin to a summary judgment motion and the court simply considers whether the above criteria can  reasonably be met. Therefore, it is intended to filter out more obvious actions that should not proceed.

The court reviewed the claim and found that the plaintiff did have potential merit to his defamation claim. The judge found that it was possible for readers of the Board’s letters to conclude that Mr. Hamlin was the subject of same and had engaged in something nefarious, since the letter indicated that he installed the cameras without the school’s knowledge. The judge found that this could lower his reputation which could be grounds for defamation. The judge also found that the letter implying that Mr. Hamlin improperly obtained contact information from the school database could be grounds for a defamation claim.

The judge next worked through the various defences raised and found that they could reasonably be defeated if the action was allowed to persist. One of the defences raised was “qualified privilege”, which applies where a defendant’s impugned statement was motivated by a duty. A privileged occasion is one where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The court found that this defence could be defeated and made the following comments:

[73] In this case, the letter was published on the publicly available website of the [school] which was reported on in the public media to all in the community. This publication was broader than a publication limited to students and former students who may have been affected by the privacy breach and their parents.

 

[74] On the evidentiary record before me, I am satisfied that a trier could reasonably conclude that the publication of the letters was made in a way that exceeded what was reasonably appropriate in the context of the circumstances existing when the letters were sent …

After evaluating the potential defences, the court turned to the question as to whether permitting the action to continue outweighed the public interest in allowing the defendants’ expression (i.e. the notice letters). The judge had the following selective comments:

[88] The expressions in the May 18 and June 30 letters could lead a reasonable trier to infer that the plaintiff engaged in unlawful and unauthorized conduct which is serious, and which should be condemned. I disagree that the fact that the plaintiff made public statements explaining his conduct eliminates any damages that the plaintiff may have suffered. The letters were published widely and received significant media attention in the community. The plaintiff has provided evidence of his position and good standing in the community including his ongoing involvement in music education in Canada. I accept that the plaintiff has not provided evidence to quantify monetary damages measured by loss of income that he suffered as a consequence of the impugned expressions. However, I am satisfied that a trier could reasonably conclude that the plaintiff is entitled to general damages that are more than nominal.

 

[89] I accept the defendants’ submission that there is a public interest and expectation that the defendants adhere to their legislative and policy obligations. The question that arises in this case is not whether the defendants had these obligations, but whether they discharged them in ways that were beyond what was necessary to protect the public interest. See Pointes at para. 94. I am not satisfied that to allow this action to continue would have a chilling effect on the defendants’ actions to comply with these obligations.

The plaintiff’s action was therefore permitted to continue.

Organizations faced with privacy breaches are without question placed in a vulnerable position with difficult decisions to make. Immediate concerns will centre on investigating the breach and compliance with notice requirements to the affected parties. This decision is a cautionary tale, however, urging organizations not to lose sight of potential fallout that can occur in the manner they “clean up” a privacy violation. According to the decision, it may be a very fine line between advising affected parties of the facts underlying a privacy breach and sharing too much too widely, which might lead to a defamation suit from persons involved.

See Hamlin v. Kavanagh, 2019 ONSC 5552 (CanLII)

Tim Gillibrand

Better known around the water cooler as “Amazon Prime”, Tim has a knack for knowing just what his insurance clients need and delivering it overnight (at a premium). Whether he’s flexing his subrogation muscles, “nerding out” over a new coverage issue or investigating fraud, Tim enjoys thinking outside the box.

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