Can You Bring an Action or Class Action for the Tort of Violation of Privacy in Saskatchewan? (updated)
I was asked whether a person could sue or be part of a class action in Saskatchewan for a breach of privacy. 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.
In 2018, the Legislative Assembly amended The Privacy Act to allow an action to be brought for the tort of distributing an intimate image of another person without that other person’s consent. In addition, the amendment allowed a person to sue in small claims court or King’s Bench.
Actions for violation of privacy has occurred in Saskatchewan.In Bierman v Haidash, 2021 SKQB 44, the Court of K’s Bench for Saskatchewan ordered damages of $7,500 and costs of $3,000 against the defendant.
The court also recognizes that Dr. Haidash has already been subject to the scrutiny and disapproval of the College of Physicians and Surgeons and the Privacy Commissioner.
Could persons sue in 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 King’s Bench. If certified, a class action or multi-jurisdictional class action for a tort of breach of privacy could proceed in this province.
FOIP, LA FOIP and HIPA
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 (e.g. cities, towns, villages and other municipalities’ school and library boards, the U of S and U of R, the Saskatchewan Health Authority and police services.) The Health Information Protection Act (HIPA) applies to trustees and gives the right to individuals to access their personal health information. The rights and actions 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 a breach of privacy. The IPC may undertake a breach of privacy investigation under FOIP, LA FOIP or HIPA. There is no potential for monetary advantage through the IPC process.
I note the case of S.B. V D.H. where an award of damages was given in the amount of $160,000 for non-consensual distribution of intimate images (section 7.3).
In Peters-Brown vs Regina District Health Board the court awarded $5000 for negligence and breach of contract.
In Jess v. Saskatchewan District Health Board the court did not award damages.