COURT FILE AND PARTIES

COURT FILE NO.: 06-CV-310261PD2

DATE: 20150831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RANJIT KUMAR CHANDRA

Plaintiff

– and –

CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGRESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

John W. Lavers, Sarah Learmonth, H. Richard Bennett and Joseph Figliomeni for the Plaintiff

Christine Lonsdale, Elder Marques and Gillian Kerr for the Defendants CBC, O’Neill-Yates and Burgess

HEARD: 16 July 2015

REASONS FOR DECISION

mew j.

[1] Can a plaintiff who has sued a broadcaster for defamation in connection with a television programme also maintain a claim for general damages for invasion of privacy?

[2] The Canadian Broadcasting Corporation (“CBC”) and two of its employees who are defendants in this action (“CBC defendants”) say that a common law claim for breach of privacy is, in the circumstances of this case, precluded by operation of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 (“PIPEDA”). Alternatively, they argue, to the extent that a common law tort of intrusion upon seclusion has been recognised in Ontario, its application does not extend to the publication or dissemination of information by a broadcaster.

[3] The evidentiary portion of the trial between these parties before me and a jury lasted for approximately ten weeks. After the parties had closed their respective cases, the CBC defendants moved for a ruling that the plaintiff’s claim for general damages for invasion of privacy should not be put to the jury. I heard argument on 16 July 2015, and, on 17 July, ruled that while the scope for a successful claim by the plaintiff for intrusion upon seclusion would be limited, I could not say that such a claim was untenable in law, or that there were no facts upon which a reasonable, properly instructed jury could base a finding that the CBC defendants had unlawfully invaded the plaintiff’s privacy.

[4] My reasons for coming to that conclusion are set out below.

Background

[5] Between 1974 and 2002, the plaintiff was employed as a professor and researcher in the Faculty of Medicine at Memorial University of Newfoundland (“MUN”). He became a world renowned expert in the fields of nutrition and immunology.

[6] On 30 and 31 January and 1 February 2006, a news segment entitled “The Secret Life of Dr. Chandra” was broadcast on CBC television (the “Documentary”).

[7] The Documentary asserted that the plaintiff had fabricated research results which were then used as the basis for published scientific studies and reports. In the broadcast, the CBC claimed to have “uncovered a patent of scientific fraud and financial deception dating back to the [1980s]”.

[8] In January 2012, the decision of Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241 was handed down. The decision recognised the existence of a common law right of action for intrusion upon seclusion in Ontario.

[9] On 16 November 2012, the plaintiff amended his statement of claim to include a claim for general damages for invasion of privacy in the amount of $1,000,000.

[10] Particulars of the claim for invasion of privacy pleaded by the plaintiff can be summarised as follows:

(a) The CBC engaged in a campaign of harassing conduct including the disclosure of embarrassing private facts alleged to be true about the plaintiff;

(b) The plaintiff’s private email communications were “secretly and surreptitiously tracked and monitored” without the plaintiff’s knowledge or consent (this was allegedly done by sending emails to the plaintiff and using software to monitor the plaintiff’s email communications and his physical whereabouts);

(c) The broadcasts described very personal and private information about the plaintiff’s money matters, grants, Human Investigation Committee (“HIC”) approvals, employment, email and his divorce from his wife, all matters not in the public domain or otherwise generally known by the public.

[11] The CBC defendants did not oppose the amendments to the statement of claim that introduced the plaintiff’s claim for breach of privacy. Nor did the CBC defendants bring a motion for determination before trial of the issue grounded on its submission that “the Federal Government has enacted a full and complete legislative scheme which excludes common law claims of this sort against the CBC”.

[12] Setting aside the plaintiff’s procedural objections to the CBC defendants seeking to move against the invasion of privacy issue being determined at trial at such a late stage, the plaintiff points to evidence adduced at trial concerning the investigative techniques employed by the CBC as supportive of its claim for breach of privacy. The plaintiff also alleges that the CBC defendants breached the implied undertaking rule in order to be able to inform and report upon embarrassing facts about Dr. Chandra that were disclosed in the Documentary (as to which see: Chandra v. Canadian Broadcasting Corp, 2015 ONSC 3945, 255 A.C.W.S (3d) 301).

[13] In short, the plaintiff asserts that there is ample evidence upon which a properly instructed jury could find that his right to privacy was violated.

Issues

[14] The following issues emerge from the parties’ submissions:

(a) Is the motion by the CBC defendants appropriate at this juncture, given that the CBC defendants:

i. did not move for a determination before trial of the issue of whether the plaintiff could maintain a claim for breach of privacy; and

ii. did not apply to nonsuit the plaintiff on this issue at the close of the plaintiff’s case at trial.

(b) Has the Federal Government established a complete legislative scheme that ousts a common law breach of privacy claim against the CBC defendants?

(c) Could any properly instructed jury acting judicially find for the plaintiff with respect to his claim for violation of his common law privacy rights or invasion of privacy?

Facts

[15] Reference has already been made to the allegations in the amended statement of claim concerning the plaintiff’s claim for breach of privacy.

[16] In the course of argument, the plaintiff also referred to evidence adduced at trial, including the following:

(a) In the Documentary, the CBC disclosed the existence and contents of a preliminary report made by a four person committee (the “Kiefte Committee”) that was appointed by MUN to investigate allegations of scientific misconduct alleged to have been committed by the plaintiff. Pursuant to the framework under which the Kiefte Committee conducted its investigation, its report was to remain sealed and confidential. The CBC knew this. Indeed, the CBC tried, and failed, to obtain a copy of the Kiefte report by way of a Freedom of Information request in 1997. In the late spring of 2005, a copy of the Kiefte report was delivered to the CBC in an unmarked envelope. At no time prior to the broadcast did the CBC alert the plaintiff to the fact that it had obtained a copy of the Kiefte report. Instead, the CBC used the contents of the Kiefte report to further their investigation into the “secret” life of Dr. Chandra.

(b) During its investigation, the CBC used confidential sources to track the plaintiff to Switzerland where it performed an on camera “jump” interview of him as he was on his way to have lunch with a friend. Footage from the “jump” interview formed part of the CBC’s nationwide broadcast of the Documentary.

(c) The CBC used a computer software program called “Did They Read It” to monitor email communications from the CBC to Dr. Chandra and, in particular, to determine where, when, and how many times the plaintiff opened the CBC’s emails.

(d) During the course of its investigations, the CBC contacted a lawyer who represented the plaintiff’s ex-wife during their divorce proceedings and obtained from that lawyer information and documents, possibly in breach of the implied undertaking rule, which were then used by the CBC to further their investigation and which formed part of the Documentary.

(e) The CBC contacted another lawyer who had represented Marilyn Harvey. Ms. Harvey previously worked with the plaintiff and there was at one time a lawsuit between her and Dr. Chandra. She was interviewed during the course of the Documentary and was also a key witness at trial. Information and documents obtained from Ms. Harvey’s lawyer, possibly in breach of the implied undertaking rule, were used by the CBC to further their investigation and formed part of the Documentary.

(f) The CBC defendants made enquiries of a number of individuals in their attempt to scrutinize the plaintiff’s private financial affairs.

Procedural Concerns

[17] The plaintiff observes that at no time prior to the conclusion of the evidence at trial did the CBC defendants raise the issue that the plaintiff’s claim for breach of privacy was not tenable at law. The CBC should have moved prior to trial, pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Alternatively, the plaintiff asserts that the CBC defendants’ submission that “the evidence brought by the Plaintiff, even if unquestionably accepted, cannot ground a claim for intrusion upon seclusion in the law of Ontario”, is tantamount to a motion for nonsuit. A nonsuit motion should have been brought prior to the CBC defendants adducing any evidence at trial.

[18] Against this, the CBC defendants point to the gatekeeper role of the trial judge to assess the sufficiency of evidence adduced by a party and to determine whether “a reasonable trier of fact could find in the plaintiff’s favour if he or she believed the evidence given in the trial up to that point”: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, th ed. (Markham: LexisNexis Canada Inc., 2014), at para. 5.4.

[19] The seminal statement on this issue comes from Lord Cairns in Metropolitan Railway Co. v. Jackson (1877), 4 L.J.Q.B. 303, 3 at App. Cas. 193 (H.L.) at 197:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that the separate functions should be maintained, and should be maintained distinct.

[20] The learned authors of The Law of Evidence in Canada discuss the principles established by Metropolitan Railway Co. v. Jackson in the context of the plaintiff’s evidential burden and motions for a nonsuit in civil proceedings. They note that whereas in most provinces a motion for a nonsuit is provided for in the relevant rules of procedure, in Ontario, neither the Courts of Justice Act, R.S.O. 1990, c.C.43, nor the Rules of Civil Procedure, specifically provide for nonsuit motions. Notwithstanding this, judges have jurisdiction to entertain such motions (Lederman et al., para. 5.8).

[21] In civil cases, with or without a jury, the established practice is that the defendant must elect whether or not to call evidence: Ontario v. Ontario Public Service Employees Union (1990), 37 O.A.C. 218 (Div. Ct.), at p. 226 (O.A.C.). If the defendant elects to call evidence, the judge reserves on the nonsuit motion until the end of the case.

[22] The test for nonsuit is whether there is any evidence upon which a jury, acting judicially, could find in favour of the plaintiff: Michelle Fuerst & Mary Anne Sanderson, Ontario Courtroom Procedures, 3rd ed. (Markham: LexisNexis Canada Inc., 2012) at p. 490. In jury cases, whether a defendant elects to call evidence or not, the trial judge should receive the jury’s verdict before ruling on the motion: Lederman et al., at para. 5.18.

[23] The plaintiff argues that it is simply too late for the CBC defendants to wait until the defence has closed its own case before raising the issue that the breach of privacy claim is untenable in law and fact.

[24] I do not accept the plaintiff’s argument that the CBC defendants’ motion should fail because it is an untimely nonsuit motion in disguise. Indeed, even if it is, the Court of Appeal has questioned whether, in this day and age, a nonsuit motion in a civil trial has much value: F.L. Receivables Trust 2002-A v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561, at para. 13. Whilst the Court of Appeal’s comment was made in connection with a non-jury case, in civil jury cases the nonsuit procedure would also seem to be largely redundant.

[25] Although the CBC defendants rely on the leading authority used in nonsuit motions, their motion is of a different character. They ask the court to consider whether, as a matter of law, given the allegations pleaded and the evidence adduced at trial, the plaintiff’s claim for damages based on the tort of invasion of privacy should be put to the jury. The issue is less about whether the plaintiff has made out a prima facie case (the focus of a nonsuit motion) and more about the tenability in law of advancing such a claim given the pleaded allegations and the evidence adduced. The evidence, while perhaps not essential to the task of considering whether the plaintiff’s breach of privacy claim is tenable in law, is nevertheless helpful because it provides context that is all-important to a trial court considering the application of what is a nascent tort under Ontario law.

[26] The CBC defendants could have brought a Rule 21 motion dealing with the PIPEDA issue. However, a Rule 21 motion in respect of the intrusion upon seclusion issue would have had little chance of success. The availability of a civil remedy for invasion of privacy as a distinct claim is a new one in Ontario. The law is bound to evolve and, as it does, courts will be reluctant to determine before trial, and in the absence of evidence, that such claims cannot succeed.

[27] I would therefore not fault the CBC defendants for waiting.

[28] Furthermore, as a practical matter, the plaintiff’s claim for invasion of privacy is very much secondary to his defamation claim, which has been the focus of the vast majority of the evidence adduced at trial. Having regard to the principles of interpretation provided for in rule 1.04 of the Rules of Civil Procedure, including that of proportionality, it made more sense in this case to defer consideration of whether the invasion of privacy claim should go to the jury until the full context of the case was known to the court, as a result of having heard all of the evidence at trial. Not only has this assisted me in exercising my gatekeeper function, it also informed the instructions which I gave to the jury on the invasion of privacy claim.

Does PIPEDA establish a complete legislative scheme that ousts the common law breach of privacy claim?

[29] Prior to 1 September 2007 (and therefore at the time the Documentary was broadcast) the CBC was subject to PIPEDA (since 1 September 2007 the CBC ceased to be subject PIPEDA and has instead been governed by the Privacy Act, R.S.C. 1985, c. P-21).

[30] The purpose and scope of PIPEDA is laid out in s. 3 of the Act:

3. The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in an manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

[31] It is not contested that PIPEDA applies to all institutions subject to federal jurisdiction except those described in s. 4(2). The Act provides a process for an individual who believes there has been a violation of the Act to file a complaint with the Privacy Commissioner. Unlike the regime under the Privacy Act, a complainant who believes that his or her personal information has been illegally obtained remains entitled to bring the matter before the courts for further resolution (s. 14). It is open to a court to award monetary damages, including damages for any humiliation that the complainant has suffered (s. 14(c)).

[32] Significantly, under s. 4(2)(c), PIPEDA does not apply to information collected or used for journalistic, artistic or literary purposes. The CBC defendants initially argued that the Privacy Act and PIPEDA were applicable to the plaintiff’s claim against the CBC defendants. However, in argument, it was tacitly conceded by counsel that it was PIPEDA which governed.

[33] Under PIPEDA, upon completion of the Privacy Commissioner’s investigation, he or she issues a report containing recommendations on how to resolve the complaint. But, as already noted, the legislation specifically leaves open to a complainant the option of bringing a civil proceeding. Because of that feature, PIPEDA does not, in my view, constitute the “complete code” which the CBC defendants advocate it does.

[34] The CBC defendants argue that the effect of s. 4(2)(c) of PIPEDA, which expressly provides that the Act does not apply to any information collected or used for journalistic, artistic or literary purposes, represents a deliberate policy decision not to subject broadcasts to privacy torts in the common law. I disagree.

[35] As the Court of Appeal noted in Jones v. Tsige (at para. 15), aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights.

[36] The CBC defendants did not, and could not, credibly, argue that the effect of PIPEDA is to insulate them from a claim in defamation based upon the use or disclosure of personal information, whether for journalistic, artistic or literary purposes, or otherwise.

[37] I see no reason in logic or in principle that would justify the type of exemption the CBC defendants argue for.

[38] I am reinforced in this view by the observations of the Court of Appeal in Jones v. Tsige concerning the effect of PIPEDA. In Jones v. Tsige, the defendant Bank of Montreal was, like the CBC, subject to PIPEDA. At para. 49, Sharpe J.A., for the Court of Appeal said:

I am not persuaded that the existing legislation provides a sound basis for this court to refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy. In my view, it would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt the development of the common law in this area….

[39] However, as will be seen, when regard is given to the constitutionally-protected fundamental freedom of expression, including freedom of the press and other media of communication (Canadian Charter of Rights and Freedoms, s. 2(b)) and to analogous defences available to the media defendants in defamation cases, there are necessarily limitations on the liability of media defendants to plaintiffs who claim their privacy has been violated.

Can a claim for breach of privacy lie against the CBC defendants in the circumstances of the case?

[40] In Jones v. Tsige, the Court of Appeal confirmed (at para. 65) the existence of a right of action for intrusion upon seclusion. The Court described such a cause of action as “an incremental step that is consistent with the role of this court to develop common law in a manner consistent with the changing needs of society.”

[41] In arriving at this conclusion, the Court of Appeal considered the right of privacy under United States law, as developed through hundreds of cases and classified by Professor Prosser (William L. Prosser, “Privacy” (1960), 48 Cal. L. Rev. 383) as “not one tort, but four tied together by a common theme and name, but comprising different elements and protecting different interests” (Jones v. Tsige, at para. 18). Professor Prosser’s four-tort catalogue is summarised at page 389 of his article (as quoted at para. 18 in Jones v. Tsige):

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

[42] The tort that was most relevant to the facts raised in Jones v. Tsige was that of “intrusion upon seclusion”. While the Court of Appeal referred to the other three categories identified by Professor Prosser, it was not necessary on the facts of the case to decide whether those categories should also be recognised by Ontario law.

[43] The plaintiff argues that it is nevertheless open to this court to further evolve the common law in Ontario to recognise as actionable the public disclosure of embarrassing private facts about the plaintiff and publicity which places the plaintiff in a false light in the public eye.

[44] There may well come a time when this court is presented with a case, the circumstances of which make it appropriate to consider further expansion of the law on invasion of privacy to incorporate more of the torts catalogued by Professor Prosser. This is not, however, such a case.

[45] In confining its expansion of a remedy from invasion of privacy to situations of intrusion upon seclusion, Sharpe J.A. in Jones v. Tsige noted that (at para. 21):

…As a court of law we should restrict ourselves to the particular issues posed by the facts of the case before us and not attempt to decide more than is strictly necessary to decide that case. A cause of action of any wider breadth would not only over-reach what is necessary to resolve this case, but could also amount to an unmanageable legal proposition that would, as Prosser warned, breed confusion and uncertainty.

[46] As noted by the CBC defendants, in Jones v. Tsige, the Court of Appeal expanded the common law to respond to “the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form” and to deal with “facts that cry out for a remedy” (Jones v. Tsige, at para. 69).

[47] Jones v. Tsige did not involve consideration of freedom of the press. Nor were there allegations of defamation. However, possibly anticipating a case such as the present one, Sharpe J.A. observed, at para. 73:

…claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada’s elaboration of the common law of defamation in Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640 where the court held, at para. 65, that “[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.”

[48] The essence of the plaintiff’s claim for breach of privacy is that the CBC went beyond what the law should tolerate, even in cases of investigative journalism on matters of public interest. The result was a Documentary broadcasted to a nationwide audience, containing information that might otherwise have remained private.

[49] While the plaintiff’s claim as pleaded tracks the language of the second and third torts catalogued by Professor Prosser, the alleged dissemination or publication of private information already lies at the heart of the tort of defamation. On a number of recent occasions, the Supreme Court of Canada has considered, in the context of Charter values, the balancing of free expression on the one hand and the protection of reputation on the other: Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130; Grant v. Torstar Corporation, 2009 SCC 61, [2009] 3 S.C.R. 640; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420. The CBC defendants submit, and I agree, that to expand the tort of invasion of privacy to include circumstances of public disclosure of embarrassing private facts about a plaintiff, would risk undermining the law of defamation as it has evolved and been pronounced by the Supreme Court. To do so would also be inconsistent with the common law’s incremental approach to change.

[50] The next consideration is whether the plaintiff’s allegations are, effectively, subsumed by his claim for defamation or whether he can maintain a separate claim for intrusion upon seclusion.

[51] The key features of intrusion upon seclusion are set out at para. 71 of Jones v. Tsige:

(a) The defendant’s conduct must be intentional or reckless;

(b) The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

(c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[52] In adopting the formulation of "intrusion upon seclusion" articulated in American Law Society, Restatement (Second) of Torts (2010) at 652B, Jones v. Tsige referred to U.S. case law indicating that the tort focuses on the act of intrusion, as opposed to dissemination or publication of information: Roe v. Cheyenne Mt. Conf. Resort Inc., 124 F. 3d 1221 (10th Cir. 1997), at p. 1236.

[53] The fact that the allegations made by the plaintiff against the CBC defendants arise in the context of those defendants’ purported journalistic activities and purposes does not, in my view, necessarily preclude an action against them for invasion of privacy. However, as already noted, journalistic activities and practices lie at the heart of claims for the protection of freedom of expression and freedom of the press and, as a result, claims for the protection of privacy have to be reconciled with, and even yield to, competing claims for protection of freedom of expression and freedom of the press.

[54] The plaintiff’s claims arise in connection with a broadcast that all parties have conceded deals with matters of public interest. Specifically, the plaintiff’s claim for breach of privacy focuses on what are described as the CBC defendants’ “investigative techniques”. The plaintiff attempts to distinguish between the words used in the broadcast, which are the subject of the plaintiff’s concurrent claim for defamation, and the actions of the CBC defendants which preceded and, to some extent, succeeded the broadcast.

[55] In relation to the defamation claim, the CBC defendants have pleaded, inter alia, the defences of fair comment and responsible communication.

[56] A defence of fair comment will fail if the plaintiff can establish that the comment was primarily motivated by malice.

[57] Similarly, a defendant who acted with malice in publishing defamatory allegations will not have acted responsibly and, hence, will not be able to avail itself of the responsible communication defence.

[58] The development of the law of defamation, and in particular, the efficacy of the defences of fair comment or responsible communication, would be significantly undermined if a plaintiff was able to avoid its effects by establishing in the alternative, on the basis of the same or related facts, a breach by the defendants of the plaintiff’s right to be free from intrusion upon seclusion.

[59] The effect of the comments at para. 73 of Jones v. Tsige (no right to privacy can be absolute), and para. 98 of Grant v. Torstar Corporation (which summarises the responsible communication defence), is that the collection of otherwise private information for journalistic purposes, absent malice on the part of the defendant, is lawful. Because a successful claim for intrusion upon seclusion must be pinned on conduct that is unlawful, the plaintiff cannot advance a claim for intrusion upon seclusion in circumstances analogous to those in which a media defendant can establish fair comment or responsible communication.

[60] Conversely, if the plaintiff can establish that the CBC defendants have invaded the plaintiff’s private affairs or concerns without lawful justification, it follows that even media defendants would remain potentially liable to a claim of intrusion upon seclusion.

[61] Assuming the plaintiff can overcome the hurdle of showing that the invasion of his private affairs or concerns was without lawful justification, he must still establish that the defendant’s conduct was intentional or reckless and that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[62] In my view it cannot be said, based on what the plaintiff has pleaded and upon the evidence that has been given during the course of nine weeks of testimony, that it would not be open to the jury to make findings of fact upon which a reasonable, properly instructed jury could base a conclusion that the CBC defendants unlawfully invaded the plaintiff’s privacy. But the scope for a successful claim by the plaintiff will necessarily be limited.

[63] Accordingly, the issue of whether the CBC defendants intruded upon the seclusion of the plaintiff will be put to the jury but with instructions that reflect the foregoing analysis.

Jury Instruction

[64] Because the tort of invasion for privacy has only recently been recognised in Ontario law, there is relatively little guidance on how a jury called upon to consider such a claim should be instructed. It may, therefore, be of assistance to other litigants and trial judges to consider the instructions which I provided to the jury concerning the invasion of privacy claim (see the Appendix to these reasons - footnote reference added).

Graeme Mew J.

Released: 31 August 2015

APPENDIX

Invasion of Privacy

Question 8. Did the CBC defendants (either individually or collectively) intentionally intrude, physically or otherwise, upon the seclusion of Dr. Chandra, his private affairs or concerns in a way that would be highly offensive to a reasonable person?

Yes ____

No ____

For the purposes of this lawsuit, what is meant by invasion of privacy is “intrusion upon seclusion”. One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his or her private affairs or concerns, is subject to liability to the other for invasion of his or her privacy, if the invasion would be highly offensive to a reasonable person.

The key features of intrusion upon seclusion are:

a. the defendant's conduct must be intentional or reckless;

b. the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and

c. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The allegations made by Dr. Chandra against the CBC defendants arise in the context of those defendants’ purported journalistic activities and purposes. Responsible journalistic activities and practices lie at the heart of claims for the protection of freedom of expression and freedom of the press. There is inevitably a balancing exercise when claims for the protection of privacy are considered alongside freedom of expression and freedom of the press.

In this case, Dr. Chandra’s claims arise in connection with a broadcast which all parties have conceded deals with matters of public interest.

However, Dr. Chandra’s invasion of privacy claim extends beyond the words used in the broadcast (which are properly the subject of his defamation claim) and address, too, what are described as the CBC defendants’ “investigative techniques”.

Mr. Lavers may have left you with the impression that the CBC’s use of a confidential report or of other confidential sources is an actionable intrusion upon seclusion. It is not. Absent evidence of any illegal acts on the part of the CBC, the law recognises that journalists are not automatically subject to the same legal constraints and obligations imposed on their sources.[^1] History is replete with examples of sources willing to act as whistleblowers who breach legal obligations they owe in the course of providing information to the media. But unless it would breach a higher order public interest for a journalist or broadcaster to disseminate such information, which is not the case here, there is no impropriety and, it follows, any intrusion into another’s seclusion which results is not unlawful.

To the extent that you may have taken from Mr. Lavers’ submissions the notion that the use of email software by the CBC played a part in locating Dr. Chandra in Switzerland, there was no such evidence. The evidence is that the software concerned was deployed after Dr. Chandra was interviewed in Switzerland. You heard evidence and submissions about what was done, and why, in that regard.

Similarly you were asked how you would feel if you were on the receiving end of the email tracking software or had your personal financial information flashed on a TV screen. That is not the test you are to apply. You are required to put yourself in the position of the reasonable person – which is not to suggest that any of you are not reasonable – and to ask yourself whether the intrusion upon Dr. Chandra’s seclusion was highly offensive causing him distress, humiliation or anguish.

If you conclude that the actions of the CBC did not breach any laws, were not actuated by malice, or did not fall outside the scope of responsible communication, there would be no basis upon which you can find the CBC defendants liable for invasion of privacy. As to what constitutes malice and responsible communication, you should apply the same considerations that pertain to the defences of fair comment and responsible communication described by me earlier in relation to the defamation claim. If you have considered those questions (4 and 5) and have concluded that the defence of responsible communication should succeed, then you should answer “No” to question 8, since it would be inconsistent with the recognition of the place of responsible communication in the balancing exercise that I mentioned just now if a journalist whose actions benefit from the protection of that defence in a defamation claim were to remain exposed to a claim for invasion of privacy arising from her journalistic activities. Put another way, the prerequisite that there must be no lawful justification for the invasion of a person’s private affairs or concerns will be hard, if not impossible, to satisfy if there has been a finding that such an invasion occurred during the course of responsible journalistic activities.

If, however, you conclude that the CBC defendants’ intentionally or recklessly invaded Dr. Chandra’s private affairs or concerns without lawful justification and that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish, then you should find in Dr. Chandra’s favour.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RANJIT KUMAR CHANDRA

Plaintiff

– and –

CANADIAN BROADCASTING CORPORATION, CHRIS O’NEILL-YATES, CATHERINE MCISAACS, LYNN BURGRESS, JACK STRAWBRIDGE and MEMORIAL UNIVERSITY OF NEWFOUNDLAND

Defendants

REASONS FOR DECISION

Mew J.

Released: 31 August 2015

[^1]: Globe and Mail v. Canada (A.G.), 2010 SCC 41, [2010] 2. S.C.R. 592 at 639, at para. 84.