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Nesbitt awards woman $40K for privacy breach

|Written By Robert Todd

A British Columbia doctor has been forced to pay his ex-wife $40,000 for breach of privacy and defamation after accessing private information about her on an old home computer and publishing it online and in e-mails.

‘I think if a case like this were brought in Ontario, you could just bring one based on the defamation,’ says Gil Zvulony.

The case, Nesbitt v. Neufeld, saw businesswoman Wendy Neufeld go after damages from her ex-husband, Patrick Nesbitt, a doctor whose practice was restricted. She also issued a counterclaim in an action initiated by Nesbitt but largely struck by the court.

Nesbitt and Neufeld have a young child, and ongoing family court litigation initiated in 2006 preceded the civil lawsuit, according to a Nov. 15 judgment of B.C. Supreme Court Justice Robert Crawford.

The court awarded Neufeld primary care, custody, and control of the child during the family court litigation, and Nesbitt was entitled to supervised access. However, as problems over access began to creep in, Nesbitt took the issues outside of the courtroom.

“Had Dr. Nesbitt kept his communications within the confines of the family court litigation, there would not have been a concern,” Crawford noted.

Neufeld and her friends were targeted in several forums, including faxes to a Calgary bank; e-mails to a local Rotary Club; a YouTube video showing an interview with the child titled “Wendy Neuffeld [sic] – shirt stuff;” a web site titled “Wicked Wendy Neufeld;” a Facebook page called “Wendy Neufeld Support Group;” a letter to the Ministry of Child and Family Development; and a letter to the child’s doctor.

Nesbitt, who represented himself in the case, said if he did publish any of the materials, it was to defend himself from what he considered false claims in the family court case.

He said he posted the YouTube video to respond to allegations he had played the “sleeping beauty kissing game” with the child while he was shirtless during an access visit.

The web site, which identifies “Spin Chic and Jiver” as its authors, calls Neufeld “very Dutch,” “mean,” “weird,” and “sneaky.”

It also accuses her of splitting up marriages and of being involved with an Egyptian male prostitute prior to his deportation. In addition, it references the alleged incident involving Nesbitt with the child with his shirt off and includes a link to the YouTube video. Crawford said several of the postings “clearly point to the real author,” which he found to be Nesbitt.

Crawford also found Nesbitt to be the author of the Facebook page. It included several sentences reading, “Wendy’s mother died a few months ago. Wendy’s father died a few weeks ago. Her three tragic divorces. The affair with a married man. The suicide attempts. The boyfriend who got deported back to Egypt for being a male prostitute.”

Nesbitt admitted he accessed Neufeld’s personal correspondence from one of her old home computers. Several faxes sent to a bank in Calgary contained private e-mail correspondence between Neufeld and one of her friends, identified as Ms. X.

Neufeld said the altered e-mail was a compilation of a number of other e-mails between her and Ms. X. Personal correspondence from Neufeld’s home computer was also altered and used in the letter to the ministry.

Nesbitt also admitted to obtaining personal information from Neufeld’s home computer but said he used them because they allegedly show potentially harmful acts by Ms. X. Crawford called that explanation “as hollow an excuse as one can imagine,” particularly as he had been in possession of the computer for several years prior.

“Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy,” Crawford wrote. “The communications were extremely personal.”

The judge ruled it wasn’t enough for Nesbitt to argue the private correspondence was on a computer Neufeld had given him. Noting the private correspondence was included in additional publications, he found Neufeld had a reasonable expectation that her personal information and private correspondence wouldn’t be disclosed to third parties or posted online without her consent.

The judge went on to award Neufeld $40,000 for breach of privacy under British Columbia’s privacy legislation and for defamation. Crawford limited the award to that amount because Neufeld said she had encountered few personal or professional repercussions due to the publications.

Gil Zvulony of Toronto’s Zvulony & Co. Professional Corp. points out that the privacy law aspects of the ruling are unique to British Columbia and notes there’s debate as to whether such a tort would exist in Ontario’s common law.

“I think if a case like this were brought in Ontario, you could just bring one based on the defamation,” he says. “You wouldn’t need to throw in the invasion-of-privacy tort.”

Nevertheless, the case highlights the potential need for Ontario courts to offer guidance on what legal recourse exists for individuals when someone accesses their e-mail without permission.

“When I see a case like that, we try to dress it up in different causes of action,” says Zvulony. “It’s sort of uncertain whether it’s actually an independent cause of action for invasion of privacy in Ontario.”

The Nesbitt case is certainly unusual and specific to the facts but is another example of the courts recognizing the potential damage caused by defamatory comments posted online and in social media forums, says Davis LLP’s Vancouver-based privacy law group head Tamara Hunter.

“It just increases the harm and therefore the potential damages if somebody’s putting information about another person on that kind of a medium.”

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