ANDREA POWER Appellant And: CITY OF MOUNT PEARL Respondent And: STEve KENT INTERVENOR - v. -, 2022 NLSC 129

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Power v. Mount Pearl (City) , 2022 NLSC 129 Date : August 17, 2022 Docket : 202001G3716 Between: ANDREA POWER Appellant And: CITY OF MOUNT PEARL Respondent And: STEve KENT INTERVENOR - AND - Docket: 202001G3725 Between: ANDREW LEDWELL Appellant And: CITY OF MOUNT PEARL First Respondent And: MOUNT PEARL CITY COUNCIL Second Respondent And: STEve KENT INTERVENOR

Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: May 4-6, 2022 Appearances: No Appearance On behalf of the Appellant, Andrea Power Keri-Lynn Power Appearing on behalf of the Appellant, Andrew Ledwell J. Alexander Templeton Appearing on behalf of the RespondentsMorgan E. Chafe Thomas J. Johnson, Q.C. Appearing on behalf of Steve Kent, the intended Intervenor Authorities Cited: CASES CONSIDERED: Jones v. Tsige, 2012 ONCA 32; Dolphin Delivery Ltd. v.

R.W.D.S.U., Local 580, (SCC),[1986] 2 S.C.R. 573; Canadian Broadcasting Corp. and Canadian Media Guild (Khan), Re, [2021] C.L.A.D. No. 1, 324 L.A.C. (4th)307; R. v. Cole, 2012 SCC 53; SGEU and Unifor, Local 481 (Admissibility), Re, [2015] S.L.A.A. No. 8, 255 L.A.C. (4th) 353 (Sask.Arb.); British Columbia Hydro And Power Authority (Re), [2018] B.C.L.R.B.D. No. 177, BCLRB No. B177/2018 (B.C. L.R.B.); O’Deav. O’Dea, 2019 NLSC 206 STATUTES CONSIDERED: City of Mount Pearl Act, R.S.N.L. 1990, c. C-16; Municipal Elections Act, S.N.L. 2001, c. M-20.2;Privacy Act, R.S.N.L. 1990, c.

P-22; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule Bto the Canada Act 1982 (U.K.), 1982, c. 11; Privacy Act, R.S.C. 1985, c. P-21; Canadian Human Rights Act, R.S.C. 1985, c. H-6; Accessto Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. TEXTS CONSIDERED: Donald J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada, looseleaf(Toronto: Thomson Reuters, 2015) REASONS FOR JUDGMENT

MacDonald J .: INTRODUCTION [ 1 ] In June 2020, the City of Mount Pearl Council (“Council”) passed resolutions declaring vacant Andrew Ledwell’s and Andrea Power’s City council offices (“Dismissals”). It did so based on section 20(2) (

a) of the C ity of Mount Pearl Act, R.S.N.L. 1990, c. C-16 (“ Act ” ) because Mr. Ledwell and Ms. Power (“Councillors”) failed to disclose a conflict of interest in a matter discussed by the Council. [ 2 ] These discussions were about Steve Kent, who was then the City’s Chief Administrative Officer. Mr. Kent was subject to a workplace harassment complaint. In October 2019, the City of Mount Pearl (“City”) put Mr. Kent on paid administrative leave and launched an external harassment investigation of the complaint. [ 3 ] The City says that the Councillors were in conflict because they discussed this harassment investigation with Mr. Kent. [ 4 ] Section 15(3) (

a) of the Municipal Elections Act , S.N.L. 2001, c. M-20.2 , provides that after such Dismissals, the Councillors could not run for re-election at the next council election, held in the fall of 2021. [ 5 ] The Councillors appealed the Dismissals pursuant to section 21(1) of the Act (“Appeal”). They seek to vacate the Dismissals. [ 6 ] Under Section 21(5) of the Act , the City must file a record of all relevant papers and documents in its possession (“Record”). The Court ordered that the City prepare a draft and serve the Record on the Councillors. [ 7 ] Mr.

Kent used and possessed a City owned iPad before his administrative leave. He used the Facebook Messenger App (“App”) on that device and logged into the App using his own account. Mr. Kent could then access his messages on the App on the City iPad, even if he composed, sent or received them on his personal devices. The messages have a format similar to text messages. [ 8 ] The City took possession of the City iPad when it placed Mr. Kent on administrative leave. The City then monitored Mr. Kent’s App messages. The City used some of the messages to support the Dismissals.

These are the messages that it says form part of the Record (“Disputed Messages”). [ 9 ] The Councillors took issue with the Disputed Messages being part of the Record because Mr. Kent, while he was on administrative leave, composed, sent and received the Disputed Messages, not on the City iPad, but on his personal phone, iPad and home computer. [ 10 ] Mr. Ledwell took an application for directions on the content of the Record. Justice Thompson ordered that the parties give notice to Mr. Kent and give him an opportunity to intervene to address the issue. Mr. Kent then took this Application. [ 11 ] Mr.

Kent first asked that I grant him leave to intervene in the Appeal for the limited purpose of asserting and defending his privacy interests in the Disputed Messages. I granted this request on the second day of the hearing. [ 12 ] Mr. Kent then asked that I exclude the Disputed Messages from the Record. If I refuse to do that, he asked that I seal the Disputed Messages in the Court file, or issue a publication ban over the contents of the Disputed Messages. The Councillors support his Application. [ 13 ] The City filed the Record, but not the Disputed Messages.

ISSUES [ 14 ] I must decide: Issue 1: Did the City infringe Mr. Kent’s privacy rights in the Disputed Messages? Issue 2: If so, what is Mr. Kent’s relief? [ 15 ] I will first deal with whether the City infringed Mr. Kent’s privacy rights in the Disputed Messages. Issue 1: Did the City infringe Mr. Kent’s privacy rights in the Disputed Messages? [ 16 ] I find that Mr. Kent has privacy rights in the Disputed Messages. I find that the City infringed those rights. I will now explain why I made these decisions. [ 17 ] Mr.

Kent’s privacy rights in the Disputed Messages can arise either by common law or under the terms of the Privacy Act, R.S.N.L. 1990, c. P-22 (“ Privacy Act ”). I will first discuss Mr. Kent’s common law right of privacy. Common Law Right of Privacy [ 18 ] I must first decide if a common law right of privacy exists in Newfoundland and Labrador. I find that it does. [ 19 ] The Ontario Court of Appeal discussed this issue in the Ontario context in Jones v. Tsige , 2012 ONCA 32 . Sharpe J.A. reviewed the history of the common law recognition of a tort for invasion of privacy.

He said, at paragraph 16, that courts “almost invariably take the seminal articles of S.D. Warren & L.D. Brandeis “The Right to Privacy” (1890) 4 Harv. L.R. 193 and William L. Prosser, “Privacy” (1960), 48 Cal L.R. 383 as their starting point.” [ 20 ] Prosser delineated four tort categories (summarized at paragraph 18 of Jones ). The category relevant to this case is an “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”

[21] Justice Sharpe said that: (a) “Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual’srelationship with the rest of society and the state. The Supreme Court of Canada has consistently interpreted the Charter’s s. 8 protectionagainst unreasonable search and seizure as protecting the underlying right to privacy." (para. 39); (

b) The Supreme Court of Canada in Canada (Director of Investigation & Research, Combines Investigation Branch) v. SouthamInc., (SCC), [1984] 2 S.C.R. 145, “adopted the purposive method of Charter

interpretation and observed that theinterests engaged by s. 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacyheld by all citizens.” (para. 39); (

c) The Supreme Court of Canada in Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130(S.C.C.), Cory J. observed at paragraph 121, “that the right to privacy has been accorded constitutional protection and should beconsidered as a Charter value in the development of the common law tort of defamation.” (para. 43); (

d) Article 12 of the Universal Declaration of Human Rights, G.A. Res. 271(III), UNGAOR, 3d Sess., Supp. No. 13, UN. DocA/810 (1948) 71 provides that “[n]o one shall be subjected to arbitrary interference with his privacy, home or correspondence”. (para.44); (

e) Article 17 of the International Covenant on Civil and Political Rights, 19 December 1966, U.N.T.S. 171, provides that“Privacy is also recognized as a fundamental human right.” (para. 44); (f) “While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted onseveral occasions to develop the common law in a manner consistent with Charter values.” (para. 45); and (g) “The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that thecommon law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages forintrusion upon the plaintiff’s seclusion.” (para. 46). [22] Justice Sharpe, at paragraph 70, decided that in Ontario there is a common law right supporting an action for intrusion uponseclusion.

He said, “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs orconcerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”. [23] Justice Sharpe also discussed the interaction between provincial privacy legislation and common law rights. [24] He said, “Significantly, however, no provincial legislation provides a precise definition of what constitutes an invasion ofprivacy.

The courts in provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes.”(para. 54) [25] He continued and said, “The nature of these acts does not indicate that we are faced with a situation where sensitive policychoices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatureshave acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.” [26] I find the Ontario Court of Appeal is persuasive on this issue.

In section 3(2) of the Privacy Act, the legislature proclaimed sucha sweeping right. I discuss this later in this decision. Therefore, I find that Newfoundland and Labrador has a common law tort forintrusion upon seclusion. Furthermore, I find that this right coexists with rights created under the Privacy Act. [27] While all parties agree that

section 8 of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”), has no direct application in this Application, they agree thatCharter jurisprudence may aid in interpreting Mr. Kent’s common law and statutory rights. [28] In the Supreme Court of Canada case of Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, (SCC), [1986] 2S.C.R. 573, McIntyre J., writing for the majority said in paragraph 32, “Does the Charter apply to the common law?

In my view, therecan be no doubt that it does apply”. [29] In paragraph 46, McIntyre J. explained the difference between the Charter’s application to government actions and privatelitigation, and its application to common law. He said: (a) “It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council,possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the legislatures. (

b) It is not suggested that this list is exhaustive. Where such exercise of, or reliance upon, governmental action is present andwhere one private party invokes or relies upon it to produce an infringement of the Charter rights of another, the Charter will beapplicable. Where, however, private party "A" sues private party "B" relying on the common law and where no act of government isrelied upon to support the action, the Charter will not apply. (

c) I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply anddevelop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answerto this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall tobe decided at common law …”. [30] Thus, I am to apply and develop the principles of the common law in a manner consistent with the fundamental valuesenshrined in the Constitution.

[ 31 ] An example of a non-criminal application of Charter rights is Canadian Broadcasting Corp. and Canadian Media Guild (Khan) Re , [2021] C.L.A.D. No. 1, 324 L.A.C. (4th) 307 , where a reporter grieved his dismissal. The employer read his WhatsApp messages and Twitter postings on the employee’s work computer. It used this information to support his dismissal. The employee’s defence alleged violations of the Charter , the federal Privacy Act , R.S.C., 1985, c. P-21 and the Canadian Human Rights Act , R.S.C., 1985, c. H-6 . [ 32 ] The arbitrator applied the Supreme Court of Canada’s privacy test contained in R. v. Cole , 2012 SCC 53 , which dealt with a

section 8 Charter application. He observed that this case has been used in other arbitrations including SGEU and Unifor, Local 481 (Admissibility), Re , [2015] S.L.A.A. No. 8, 255 L.A.C. (4th) 353 (Sask. Arb.) and British Columbia Hydro And Power Authority (Re) , [2018] B.C.L.R.B.D. No. 177, BCLRB No. B177/2018 (B.C. L.R.B.). [ 33 ] The Supreme Court of Canada in Cole described the privacy test when it considered a person’s privacy rights in the context of a search and seizure. It: (

a) examined the subject matter of the search (in this Application the Disputed Messages); (

b) decided whether the claimant (in this case Mr. Kent) had a direct interest in the subject matter (Disputed Messages); (

c) inquired whether the claimant (Mr. Kent) had a subjective expectation of privacy in the subject matter (Disputed Messages); and (

d) assessed if [Mr. Kent’s] subjective expectation of privacy was objectively reasonable having regard to the all of the circumstances. [ 34 ] I will consider these factors to assist me in deciding whether the City violated Mr. Kent’s common law rights of privacy. I will later apply this test to assist me in deciding the nature of his rights under the Privacy Act . I will first deal with the subject matter of the City’s search. Subject Matter of Search [ 35 ] I find that the subject matter of the City’s search was Mr. Kent’s personal emails. I will now tell you why. [ 36 ] The parties agreed that: (

a) the Disputed Messages were composed on the App using Mr. Kent’s account; (

b) the Disputed Message were either received by Mr. Kent, or composed and sent by him, on his personal devices; (

c) before his administrative leave, Mr. Kent used the App on his City-owned iPad for both work and personal matters. The City allowed Mr. Kent to use the City iPad for personal purposes; and (

d) the City repossessed the iPad the day the City put Mr. Kent on administrative leave. [ 37 ] Mr. Kent says he must enter an access code to open the City iPad. He did not give this code to the City. Three days after the start of his administrative leave, he changed the password on his App account. He did so in belief that this would prevent access to the App by others. [ 38 ] The City, as owner of the device, could open the iPad without Mr. Kent’s access code. However, unknown to Mr. Kent, the City was still able to view his Facebook Messenger messages on the App after he changed his password.

Counsel agreed it could do so because the City iPad was a “trusted device” which meant that the user of the City iPad did not need to enter an App password to view the messages even though Mr. Kent had changed his password. [ 39 ] In this context, viewing the messages means that a banner notification appeared on the iPad. This banner contains a

summary of the message. Depending on its length, it might show the entire message. Mr. Kent says that this banner could only appear if the iPad was unlocked. [ 40 ] After the City took possession of the City iPad, its IT department saw a banner notification on the City iPad that appeared to be a message between Mr. Kent and Mr. Ledwell or Ms. Power relating to the harassment investigation. [ 41 ] Ms. Mona Lewis, former City Clerk of the City, then took possession of the iPad and placed it in Mr. Kent’s now vacant office. She monitored the City iPad to see if there were more messages between councillors and Mr.

Kent about the harassment investigation. She saw other banner notifications from the Councillors about the harassment investigation. She then obtained a legal opinion, presumably authorizing the monitoring, and then asked the IT department to monitor all messages on that topic. [ 42 ] Ms. Lewis says that both she and the IT department only looked at messages from the Councillors that related to the harassment investigation. This is unlikely to be correct. The City would see banners for all of Mr. Kent’s messages. If the banner revealed messages between Mr.

Kent and City personnel, and if the City could not read the entire message, they would then need to open these messages to see their contents. [ 43 ] Furthermore, they could not know at the beginning of their monitoring that only the Councillors were involved in, what the City says was conduct that created a conflict of interest. [ 44 ] The parties agreed that the vast majority of the messages were unrelated to the harassment investigation, and most were personal. The banners’ contents reveal information about the sender and at least part of a message.

[ 45 ] After monitoring and selecting relevant messages, the City then downloaded the Disputed Messages to an external storage device. It subsequently distributed these Disputed Messages, as I will describe later. [ 46 ] I now turn to whether Mr. Kent has a direct interest in the Disputed Messages. Did Mr. Kent have a direct interest in the Disputed Messages? [ 47 ] I find that Mr. Kent has a direct interest in the Disputed Messages. As the messages are personal, Mr. Kent has a direct interest in them.

To the extent that this in not obvious, Fish J. in Cole said, “Canadians may reasonably expect privacy in the information contained on their own personal computers. In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected.” [emphasis in original] (para. 1). In this case, the City allowed Mr. Kent’s personal use of the City iPad. [ 48 ] I now turn to whether Mr. Kent had a subjective expectation of privacy. Did Mr. Kent have a subjective expectation of privacy in the Disputed Messages? [ 49 ] I find that Mr.

Kent had a subjective expectation of privacy in all of his personal messages, including the Disputed Messages. Many factors illustrate his subjective belief, including: (

a) he changed his App password; (

b) he testified, and the City conceded, that the vast majority of text messages were personal and had nothing to do with the City; (

c) he testified that he believed his messages were private; and (

d) he was on administrative leave. Even though he may have talked about his role in the harassment investigation, he had no work responsibilities. [ 50 ] I find that Mr. Kent had no reason to believe that the City would monitor messages composed, sent and received on his personal devices, or received on the App on the City iPad. I find he had a subjective expectation of privacy. [ 51 ] I now turn to whether his subjective expectation is objectively reasonable in all of the circumstances. Was Mr. Kent’s subjective expectation of privacy objectively reasonable in all the circumstances? [ 52 ] I find that Mr.

Kent’s subjective expectation of privacy was objectively reasonable in all of the circumstances. I will now explain why I made this decision. [ 53 ] The City does has no right to monitor, read or store Mr. Kent’s personal emails on home devices. Can it do so because the Disputed Messages were also accessible on the App on the City iPad? [ 54 ] Justice Fish, in Cole , said: (a) “Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user's biographical core.

Vis-à-vis the state, everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind.” (para. 2); and (b) “While workplace policies and practices may diminish an individual's expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.” (para. 3) [ 55 ] Mr. Kent changed the password on his device shortly after the start of his administrative leave.

He failed to remove the City iPad as a trusted device. There is no evidence that he knew he should do so to prevent others from reading his messages. Ms. Lewis testified that she would not expect the City to monitor her personal messages if she were on holidays. [ 56 ] The City says that despite this, Mr. Kent consented to the City’s monitoring because of the City IT policy (“Guidelines”).

The Guidelines, at paragraphs 2 says, “This policy applies to City of Mount Pearl employees … using City’s IT resources.” Paragraph 5 says, “Employees … using City owned IT resources shall adhere to the following guidelines …”. [ 57 ] I find that the Guidelines do not apply to the Disputed Messages because Mr. Kent was not “using City owned IT resources” when he composed, sent or received them.

However, even if I had concluded that the Guidelines applied to him because the Disputed Messages were visible on the City iPad when it was in the City’s control, the Guidelines do not allow the City to do what it did. [ 58 ] As Justice Fish said, the “operational realities do not in themselves remove the expectation entirely”. [ 59 ] I agree and conclude that the Guidelines must provide that the City can access, read or store messages like the Disputed Messages before I were to find that the City could do what it did.

The Guidelines do not do so. [ 60 ] Paragraph 6 of the Guidelines says, “Any work-related information created, sent or received on City-owned IT resources is a City record that must be managed according to the City’s records management requirements. This applies to documents created and or

received on mobile devices.” [emphasis added]. [ 61 ] This provision of the Guidelines does not apply because the Disputed Messages were not work related information as Mr. Kent had no work duties and because he did not create or send them from the City iPad. [ 62 ] Mr. Kent is free to message anyone he wishes, including City officials, and by doing so, such messages, sent while he had no work duties, do not become work related because they relate to his defence of the harassment investigation.

There is no evidence that the Disputed Messages were about any other topic. [ 63 ] Any disciplined employee’s messages to friends and colleagues discussing their disciplinary matter do not become work related because the messages relate in a general way to the employee’s employment. This information, using Justice Fish’s words, “is meaningful, intimate, and touching on the user’s biographical core”. Similarly, Mr.

Kent’s harassment investigation is a matter personal to him and is not work related. [ 64 ] Even if I were to find that the Disputed Messages were work related, the Guidelines only provide that the City manage them according to the City’s Records management requirements.

There is no evidence the City did this. [ 65 ] Paragraph 7 says, “Users should be aware that any record retained on City owned IT resources and equipment is in custody and under control of the City and therefore, may potentially be subjected to a request for information under the Access to Information and Privacy Protection Act”. [ 66 ] This provision does not apply because there is no evidence that the City retained the Disputed Messages on a City IT resource until it did so by downloading the messages onto a hard drive after it read them.

Furthermore, the City initially refused to disclose the Disputed Messages under the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 (“ ATIPPA ” ), as I discuss later in this decision. [ 67 ] Paragraph 9 says, “Inappropriate use of the City’s IT resources will be investigated on a case-by-case basis. Any employee found to have violated the policy may be subject to disciplinary action that may lead to suspension from the use of IT resources, and up to and including termination of employment”. [ 68 ] This provision does not apply because there is no evidence that Mr.

Kent violated the policy, nor is there evidence that the City conducted an investigation. [ 69 ] Therefore, I find that the Guidelines do not justify the City’s actions, nor do their contents suggest that Mr. Kent’s subjective expectation of privacy was not objectively reasonable. [ 70 ] The City also makes four other arguments that the City’s actions were justified. It says these arguments support its contention that Mr. Kent’s subjective expectation of privacy was not objectively reasonable. [ 71 ] The first is that Mr. Kent’s behaviour was egregious. It says that the CBC report showed that Mr.

Kent attempted to coach witnesses who would be witnesses in the harassment investigation. Even if this is true, it is irrelevant. I must base my analysis of a breach of privacy rights on the nature of the communications and not the content. The City’s argument is a variation of the argument that the ends justify the means. [ 72 ] The second is that if I exclude the Disputed Messages from the Record, I will undermine the City’s case on the Appeal. This too is irrelevant. The City must accept the consequences of its own actions. [ 73 ] The third is that Ms.

Lewis, as the City’s Chief Administrative Officer, had a statutory authority to manage the affairs of the City.

Section 58 of the Act provides that Ms. Lewis is responsible for the proper planning, execution, conduct, and the proper administration of the affairs of the City Council in accordance with the policies decided by Council. [ 74 ] The City says Ms. Lewis was compelled to take action once it came to her attention that Mr. Kent was communicating with the Councillors about the harassment investigation. It says that when Ms. Lewis did take action, she took the least intrusive action open to her.

It relies on both the Ontario Court of Appeal and the Supreme Court of Canada’s decisions in Cole to support this argument. [ 75 ] In Cole , a school IT employee, during a routine search as part of his duties to administer the board’s IT equipment, discovered a hidden file on a teacher’s computer containing a naked picture of what appeared to be an underage student. [ 76 ] The school principal authorized him to conduct further investigations.

The Supreme Court of Canada accepted the Ontario Court of Appeal’s conclusion that the IT technician had a specific reason to open the hidden folder directly related to his role of maintaining the network. (para. 25) [ 77 ] The Supreme Court of Canada found that “[t]he principal had a statutory duty to maintain a safe school environment ( Education Act , R.S.O. 1990, c.

E.2, s. 265 ), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student.” (para. 62) [ 78 ] The City argues that once its IT department discovered that Mr. Kent was communicating with the Councillors on the harassment investigation, Ms. Lewis had no choice but to act by monitoring emails to see if this communication continued. [ 79 ] This case is fundamentally different from a school principal protecting underage children from sexual exploitation.

Adults who become aware of child exploitation must act to protect the child. This is entirely different from an employer deciding to monitor personal communications because they believe it may provide evidence of councillors’ undisclosed conflict of interest. [ 80 ] Nor did the City’s IT department personnel have a “specific reason … that was directly related to his role of maintaining the

network to read the messages.” [ 81 ] Furthermore, the City did not take the least intrusive option open to it. After the City monitored the App, it saw all of Mr. Kent’s banner notifications and therefore read at least part of all of his messages. A less intrusive option might have been to notify the parties once the City first, apparently inadvertently, read their personal emails. [ 82 ] Therefore, I find that Mr. Kent’s subjective expectation of privacy was objectively reasonable in all of the circumstances. Therefore, when I apply the Jones formulation of the common law right, the City intentionally intruded on Mr. Kent’s private affairs by reading the Disputed Messages. Mr. Kent: (

a) had a direct interest in the Disputed Messages; (

b) had a subjective expectation of privacy in the Disputed Messages; and (

c) that subjective expectation of privacy was objectively reasonable. [ 83 ] Furthermore, I find that this intrusion would be “highly” offensive to a reasonable person. I agree with Justice Boone in O’Dea v. O’Dea , 2019 NLSC 206 , when he said, “[a litigant] read the private communications of another. This kind of intrusion has always been considered as morally wrong. The right of privacy in electronic communication is now guaranteed by tort law, by statute, and by regulation. Unauthorized access is prohibited and subject to sanction.” (para. 23) [ 84 ] I will now turn to Mr.

Kent’s rights under the Privacy Act . Privacy Act [ 85 ] I find that the City’s actions constitute a tort under the Privacy Act when it willfully and without a claim of right violated the privacy of Mr. Kent. I will now tell you why I made this decision. [ 86 ]

Section 4 of the Privacy Act stipulates types of actions which constitute proof of a violation of privacy if done without the expressed or implied consent of the individual or other person who can lawfully give consent, and these include: (

a) surveillance, auditory or visual, whether or not accomplished by trespass, of an individual, by any means including eavesdropping, watching, spying, harassing or following (subpara. (a)); (

b) listening to or recording of a conversation in which an individual participates, or listening to or recording of messages to or from that individual passing by means of telecommunications, otherwise than as a lawful party to them … (subpara. (b)); and (

c) use of letters, diaries or other personal documents of an individual (subpara. (d)). [ 87 ]

Section 3 of the Privacy Act provides: (

a) It is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of an individual (subpara. (1)); (

b) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, regard being given to the lawful interests of others (subpara. (2)); and (

c) In determining whether the act or conduct of a person constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties (subpara. (2)). [ 88 ] Section 3(2) of the Privacy Act provides that the degree of privacy Mr. Kent is entitled to is that which is reasonable in the circumstances given the lawful interests of others. It requires me to consider the nature of conduct in the relationship between the parties.

I find that I am entitled to apply the Cole factors to assist me in these decisions. [ 89 ] I find that the City, by monitoring, reading and storing the Disputed Messages: (

a) conducted visual surveillance as is described in

section 4 (

a) of the Privacy Act ; (

b) has listened and recorded a conversation to and from Mr. Kent passing by way of telecommunications as is described in

section 4 (

b) of the Privacy Act . I find that the City is not a lawful party to these messages; and (

c) has used the Disputed Messages as is described in

section 4 (

d) of the Privacy Act . [ 90 ] For the reasons I discussed earlier in this judgment, I find that: (

a) Mr. Kent had a reasonable expectation of privacy and he did not consent to the City’s conduct, either expressly by not changing his App setting to remove the City iPad as a trusted device, or because of the Guidelines; and (

b) the City’s conduct was not authorized or required under a law in force in the province, and therefore it did not have a lawful interest to act as it did. [ 91 ] I now turn to the relief Mr. Kent is entitled to because of the City’s actions. Issue #2: What is Mr. Kent’s relief?

[92] The City breached both Mr. Kent’s common law right of privacy and committed a tort under the Privacy Act. [93] As this is not an action by Mr. Kent seeking relief under the common law or under the Privacy Act, I cannot order the City todeliver to Mr. Kent all copies of the Disputed Messages, including those it gave to the independent investigator. [94] However, in Donald J. M. Brown and J. M.

Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto:Thomson Reuters, 2015) at page 6 - 61 states, “[I]t is within the court’s discretion to refuse to admit evidence … on grounds of abuse ofprocess ...”. [95] Justice Boone discussed the conceptual basis for an abuse of process remedy in O’Dea. In particular he said: (a) “[A litigant] read the private communications of another. This kind of intrusion has always been considered as morallywrong. The right of privacy in electronic communication is now guaranteed by tort law, by statute and by regulation.

Unauthorizedaccess is prohibited and subject to sanction.” (para. 23); (b) “[T]he regulation of process and the doctrine of abuse of that process, is concerned less with respect for the court itself andmore for the respect for the administrative process the court has adopted to ensure fair adjudication of disputes.” (para. 39); (

c) The Ontario Court of Appeal decision of “Canam Enterprises Inc. v. Coles, (2000) (ON CA), 51 O.R. (3d)481 (Ont. C.A.)”, which said at paragraph 55, “The doctrine of abuse of process engages the inherent power of the court to preventmisuse of its procedure, in a way that would be manifestly unfair to a party to litigation before it or would in some other way bring theadministration of justice into disrepute.

It is a flexible doctrine unencumbered by the specific requirements of concepts such as estoppel.”[emphasis added] (para. 39); and (d) “[T]he purpose of a remedy for abuse of process is, if possible, to restore fairness in a proceeding in order to protect theintegrity of the administration of justice.

In fashioning a remedy, the court must be mindful that the administration of justice in in oursystem embraces the adversarial process in the search for truth.” (para. 43) [96] Thus, when I consider whether I can restore fairness, I must first consider the unfairness the City caused. [97] The City should not have monitored Mr. Kent’s personal messages. The City should not have copied the Disputed Messagesonto a hard drive and disseminated them to anyone. [98] By doing so, they breached Mr. Kent’s common law and statutory rights of privacy.

The Council therefore should not haveaccess to the Disputed Messages when it considered the Councillors’ potential conflict of interest. [99] The City argues that I must take into account that the Disputed Messages are already public. The circumstances of thisdisclosure are relevant. [100] After the City monitored, read and collected the Disputed Messages, it received a number of access to information requests underthe ATIPPA.

It denied all of these applications under the exception provided for in section 33(2) of the ATIPPA. [101] Section 33(2) of the ATIPPA provides that the City shall refuse to disclose to an applicant all relevant information created orgathered for the purpose of a workplace investigation such as a harassment work investigation. [102] The Councillors and Mr. Kent had also objected to the release of the Disputed Messages because of

Section 40 of the ATIPPA. Itprovides that the City shall refuse to disclose personal information to the requesting applicant where the disclosure would be anunreasonable invasion of a third party's personal privacy [emphasis added]. I have no evidence whether the Town refused disclosure ofany of the requests on that basis. [103] If that were the end of the matter, public disclosure would not have been an issue. However, at some point after these denials, theCity provided the Disputed Messages to the external investigator hired to assist with the harassment investigation.

I have no evidence asto the relevance of these Disputed Messages to that harassment investigation and why the City made the decision to disclose. [104] Under subsection (3), the City shall disclose this information to an ATIPPA applicant who is a party to the investigation.

A partyis a complainant, respondent or a witness who provided a statement to an investigator conducting a workplace investigation, but undersubsection (4), if a party is a witness, the City shall disclose only information which relates to their statement. [105] Pursuant to subsection (3), the City disclosed the Disputed Messages to such a party. It did so after concluding it need not givenotice to Mr. Kent under the ATIPPA and over objection from his legal counsel. [106] Perhaps not surprisingly, someone leaked the Disputed Messages to the CBC.

It then reported on, and quoted from some of theDisputed Messages. [107] Mr. Kent asked me to infer from this conduct that the referral to the internal investigator was a ploy by the City to place theDisputed Messages in the public domain in an effort to discredit Mr. Kent. [108] He said the City actively tried to prevent Mr. Kent from asserting his privacy rights by refusing to give him prior notice of thedisclosure, and by opposing his application to intervene in this Application, even though it knew he asserted privacy interest over theDisputed Messages. [109] I need not make this inference.

The City’s disclosure of the Disputed Messages, especially when it had no right to collect them inthe first place, does not preclude Mr. Kent from seeking to prevent disclosure in another context. [110] Disclosure of the Record in the Court registry, where the public can read the Disputed Messages, is quite different from a CBC

report, where the public can read excerpts of some of the messages. Furthermore, disclosure of the Disputed Messages in the Record will once again breach Mr. Kent’s privacy. [ 111 ] Furthermore, I need not decide if the City properly disclosed the Disputed Records under section 33(3) of the ATTIPA and whether this

section allows disclosure of personal information even though section 40(1) provides that it not do so (subject to the various exceptions in section 40(2)). [ 112 ] Finally, I find that it is not relevant that Mr. Kent has no direct interest in the underlying Appeal. The City breached his privacy. The City improperly collected his private messages and tried to deny him an opportunity to intervene in this matter. [ 113 ] To restore fairness and to protect the integrity of the administration of justice, the Disputed Messages, evidence the City obtained by breaching Mr.

Kent’s privacy, shall not be part of the Record. [ 114 ] Even if I could overcome the damage to our open court principle inherent in a sealing order of the Record or a publication ban, such orders are not sufficient in protecting the administration of justice. [ 115 ] I now turn to a matter relevant to the Appeal hearing scheduled for the fall of 2022. Matter relevant to the Appeal Hearing [ 116 ] The Councillors seek to quash the Council’s decision to dismiss them and thus bar them from running for re-election in the last election.

The Councillors are pursuing this Appeal even though the voters elected new councillors. The parties must consider whether they seek to replace these new councillors and whether I have the power to do so. COSTS [ 117 ] Mr. Kent and the Counsellors have been successful in this Application. They are entitled to their costs from the City on a Column 3 basis of the Scale of Costs in the Appendix to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . DISPOSITION [ 118 ] I therefore order that: (

a) the Disputed Messages will not form part of the Record; and (

b) the City shall pay Mr. Kent and the Councillors their costs under Rule 55 of the Rules on a Column 3 basis. _____________________________ Alexander MacDonald Justice