Can You Bring an Action or Class Action for the Tort of Violation of Privacy in Saskatchewan
I was asked whether a person could sue or be part of a class action in Saskatchewan for a breach of privacy. Still being relatively new, I did not know the answer but decided to find out. The Privacy Act provides in section 2, that it is a tort, actionable without proof of damage, for a person willfully and without claim of right, to violate the privacy of another. In section 7, the Court can award damages, grant an injunction or any other remedy. In section 8, the right to sue is in addition to any other rights the plaintiff has. Thus, an action for violation of privacy could occur in Saskatchewan.
A recent development is that the Legislative Assembly is considering Bill 72, an act to amend The Privacy Act. The amendment allows an action to be brought for the tort of distributing an intimate image of another person without that other person’s consent. In addition, once the amendment is passed, one would be able to sue in small claims court or Queen’s bench, when the amendment is passed and proclaimed.
Could it occur as a class action? The Class Actions Act sets out the rules and procedures for commencing a class action. Such an action has to be certified by the Court of Queen’s Bench. If certified, a class action for a tort of breach of privacy could proceed in this province.
The Freedom of Information and Protection of Privacy Act (FOIP) gives citizens certain rights to access information held by government institutions. The Local Authority Freedom of Information and protection of Privacy Act (LA FOIP) does the same for information held by local authorities (municipalities, cities, towns, villages, school boards, universities, regional health authorities and police forces.) The rights under these Acts do not affect the right to bring an action under The Privacy Act.
The Information and Privacy Commissioner (IPC) process is completely separate and apart from lawsuits for the breach of privacy. The IPC may undertake a breach of privacy investigation under FOIP, LA FOIP or The Health Information and Protection Act (HIPA) and even order damages. There is no potential for monetary advantage through the IPC process.