Participation in case conference not private information, disclosure not a breach of privacy: court

Counsel has a duty to her client to divulge information related to the case

Participation in case conference not private information, disclosure not a breach of privacy: court
Parties to the case are entitled to receive a witness list

The Court of Appeal for Ontario has ruled that disclosing an employee’s participation in a case adverse to their employer does not amount to a breach of privacy.

In Wakeling v. Desjardins General Insurance Group Inc., 2021 ONCA 672, the appellant was a witness in a case against her employer, the respondent. When the respondent learned of her participation in the case, the appellant was terminated. The appellant filed an action arguing that the respondent and its counsel had invaded their privacy by revealing the participation of the appellant.

The motion judge struck the appellant’s claims for breach of privacy, stating that the conduct was not intentional as the respondent’s counsel never compelled or caused the appellant to appear at the conference. Further, the respondents were lawfully entitled to receive a witness list since they were a party to the first case.

On appeal, the Court ruled that there was no breach of privacy. “The tort of intrusion upon seclusion protects private information from unauthorized prying eyes,” said the Court. However, it was obvious that the appellant’s attendance in person at the case conference was not private information, the divulging of which would amount to an intrusion of privacy. Further, since the respondent was a party to that case, its counsel’s receipt of such information did not amount to an intrusion.

As to the disclosure to the respondent by its counsel, the Court found that as a party to the case, the respondent is lawfully entitled to receive the witness list. The respondent’s counsel had a duty to her client to divulge information regarding that case, including the identity of the witnesses. Contrary to the appellant’s allegations, the respondent’s counsel did not owe a duty of care to the appellant, said the Court.

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