Privacy Concerns: When Is Video Surveillance an Invasion of Privacy?

Privacy and personal information are issues that investigators and insurers have been grappling with in recent years. Two court decisions and a decision of the federal Privacy Commissioner offer some clues regarding appropriate conduct.

Milner v. Manufacturers Life Insurance Company, a recent decision of the British Columbia Supreme Court, is under appeal, but it includes a number of comments regarding privacy. The focus of the decision was the plaintiff’s entitlement to long term disability, but the Court also considered whether the plaintiff was entitled to damages on the basis that investigators hired by the insurer to conduct video surveillance had allegedly violated the plaintiff’s and her family’s privacy.

The plaintiff did not dispute that the insurance company had a right to observe and take video surveillance of her while she was in a public place. But there were two separate incidents of video surveillance that the plaintiff claimed violated her and her family’s right to privacy. The first incident was video surveillance of the plaintiff’s home taken from a car parked across the street. The video showed the plaintiff, her daughter and a friend of the daughter inside the home. At one point, the daughter was captured on tape removing her upper outer garment. The second incident was video surveillance of the plaintiff’s sons playing soccer outside the home. This video was taken despite the fact that the private investigator knew that the plaintiff was not in the area at the time.

The Court quoted from the British Columbia Privacy Act (not to be confused with the Personal Information Protection Act), which provides that the level of privacy that a person is entitled to in a given situation is what is reasonable in the circumstances, taking into account the lawful interests of others. The Act states that there is no need for the person alleging the breach of privacy to prove that he or she suffered any damage as a result of the invasion of privacy or that his or her property was trespassed upon. However, the Act requires that the person who allegedly invaded the plaintiff’s privacy acted willfully and did not believe that there was a legal justification or excuse for the invasion of privacy.

A person’s expectation of privacy is greatest in his or her own home. However, depending on the circumstances, a person’s expectation of privacy may be limited.

With respect to the first incident, the Court noted that the blinds were open and the lights were on, so that anyone passing by the plaintiff’s house could have seen the plaintiff and others inside. Also, the plaintiff should have known that the insurance company was investigating her claim and might use video surveillance. Thus, the plaintiff’s right to privacy in the circumstances was minimal and, when weighed against the insurance company’s lawful interest in conducting surveillance, there was no violation of the plaintiff’s rights.

The plaintiff’s daughter had a higher expectation of privacy than the plaintiff and the insurance company had no lawful interest in videotaping the plaintiff’s daughter. She may have acted carelessly, but it was reasonable for her to expect that she would not be videotaped, especially in a state of partial undress. Since the videotaping was done willfully with no legal justification, the Court concluded that the plaintiff’s daughter’s privacy had been violated. However, no damages were awarded to the daughter since she was not a party to the action and there was no authority for awarding damages to the plaintiff for the invasion of her daughter’s privacy.

With respect to the second incident, the Court concluded that the video surveillance of the plaintiff’s sons playing soccer was not a violation of the sons’ privacy because they were in a public place at the time and had no reasonable expectation of privacy.

The British Columbia decision parallels Decision #311 of the federal Privacy Commissioner in which the complainant alleged that her rights under the federal Personal Information Protection and Electronic Documents Act were violated when an insurance company, in the course of a lawsuit, obtained video surveillance of her driving and shopping. The Commissioner found that when an individual commences a lawsuit there is implied consent that the other party may collect information. Unlimited or unrestrained access to an individual’s personal information is not acceptable but this was not the situation with the complainant.

Radvar v. Canada (Attorney General), a decision of the Ontario Superior Court, provides useful information for insurers seeking to avoid privacy litigation. In that case Chubb Insurance settled a property claim with Mr. Radvar and obtained a full and final release, including a confidentiality and nondisparagement clause. However, prior to settlement Chubb had an investigation firm conduct a background check in the course of which Mr. Radvar’s social insurance number was obtained. Mr. Radvar commenced a second action for breach of privacy rights, fiduciary obligations and regulatory negligence.

The defendants successfully sought summary judgment. The Court reviewed the history of the first action, but the key was the release signed by the plaintiff which, among other things, released Chubb from "any and all actions, causes of action, claims and demands, for damages, loss or injuries, interest or costs, howsoever arising . . . as a result of loss of property . . . and the subsequent request for coverage".

The claims against the Attorney General and the investigation firm were also within the scope of Release, particularly the provision that the releasor would not commence an action against a non-party to the Release in which a claim over could be brought against the releasee (Chubb). Thus, the plaintiff’s claim in its entirety was dismissed, and costs awarded to the defendants. In light of this case insurers will want to examine the wording of their releases.

Readers with questions are welcome to contact Larry Munn, a member of the Clark Wilson's Insurance Group and Chair of its Privacy Group. (telephone: 604.643.3160 or email: lm@cwilson.com)