Protection of Privacy
- difft’y in determining how to frame action(is case by case approach best way to proceed?)
a) IS THERE A COMMON LAW TORT ACTION FOR THE INVASION OF PRIVACY?
Motherwell v Motherwell[1976](Alta CA)- attempt to create new catagory of nuicance, but limited by stare decisis. Rely upon Clerk v Lindell, “A nuicance of this kind, to be actionable, must be such as to be a real interference with the comfort or convenience of living according to the standards of the average man”- in this case P was being harrassed over hte telephone
b)A NOTE ON THE COMMON LAW ACTiON FOR THE BREACH OF CONFIDENCE
action still evolving in Canada, but based on equitable principle that a trustee or fiduciary may not profit from a relationdship w/ his principle. Was limited to commercial situations, but moving into personal sphere.
Elements:1)info must have a qualoity of confidence
2)info must have been impartrd in circs creating an obligation of confidence
3)unauthoirzed use of the info must have been detrimental to the confider
Analysis first used in LAC Minerals Ltd v International Corona Resources Ltd [1989](SCC)..extended into sit’ns of personal liability
C) THE STATUTORY PROTECTION OF PRIVACY
The Privacy Act Mabitoba
10. The Common Law Tort of Discrimination
- pre Charter- no common law recognitoin granted Bhaduria v Seneca College
III THE DEFENCE OF CONSENT
1. General Principles of Consent
- must be framed specifically in terms of tort action at issue
- defendant bears burden of proof
- may be given either implicitly or explicitly, but must be free and full
a) IMPLIED CONSENT
- generally applies to sporting context: consent to ordinary risks of sport in which one is engaged
- prinicple of Violenti no fit injuria applies- a man cannot complain of harm to the chances of which he has exposed himself w/ knowledge and his free will.
Rule: ” …combatants consent to take the ordinary risks of the sport in whcih they engage…but only while the play is fair, and according to rules, and the blows are given in sport and not maliciously…if theses tacit conditions of fair play and good temper are not kept the consent is at an end, and the parties are remitted to their rights.” Wright v MacLean[1956](BC SC)- boys throwing lumps of mud at each other, no il will or malice, engaged in game to whcih risks where known…therefore absent a finding of negligence, no liability
b) EXCEEDING CONSENT
Agar v Canning[1965](MB QB)- injuries inflicted in circumstances which show a definate resolve to casue serious harm to another, even where there is provocation and in the heat of the game should not fall w/n the scope of implied consent–case result of injuries which arose out of a hockey match
c) COMPETENCY TO CONSENT
- in order be valid person giving consent must be capable of appreciating the the nature and quality of the act to which it applies…abiliy to understand the act at issue
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