The first 174 views were by accident: Taking clients’ privacy in their personal information seriously

Listing Agreements generally include a statement along the following lines:

The Seller consents to the collection, use and disclosure of personal information by the Brokerage for the purpose of listing and marketing the Property…

Sounds like a lot of legal mumbo-jumbo but have you ever wondered why that statement is there? In one word: privacy. Clients provide reams of personal information (e.g. their name, their contact details, even transactional details like the number of appliance they have) to listing brokerages, and everything from the collection of that personal information to its use in marketing the property all the way to its eventual destruction is governed by privacy law. That statement (usually accompanied by additional detail) provides important proof of a client’s consent to collect their personal information and set everything in motion.

As REALTORS®, you understand how critical privacy is to your clients. Indeed, given recent trends in the case law its importance will likely increase over time.

For starters, breaching a seller’s privacy could result in a privacy complaint and an investigation by the Federal Privacy Commissioner or her Provincial counterparts.

Potentially more serious is the possibility of a client filing a lawsuit. The recent case of Jones v. Tsige is instructive in this regard.  In Jones v. Tsige, Ms. Jones and Ms. Tsige worked at different branches of the same bank. Things got complicated when Ms. Tsige became involved in a relationship with Ms. Jones ex-husband. Despite having no consent from Ms. Jones to do so, Ms. Tsige viewed Ms. Jones’ personal bank accounts at least 174 times over the next four years. Ms. Jones was, unsurprisingly, not amused when she found out and the Ontario Court of Appeal eventually awarded her $10,000 for the invasion of her personal privacy.

Jones v. Tsige is interesting as it is the first clear recognition by the courts of a common law right to sue for invasion of privacy (statutory rights to sue for invasion of privacy have existed for some time in a small number of provinces). Further, Ms. Jones succeeded in winning her case despite the fact that Ms. Tsige didn’t publish, record or distribute her personal information to anyone in anyway. She just looked at it without having any legitimate reason to do so.

Admittedly, Jones v. Tsige didn’t involve a REALTOR®. But a few useful lessons can still be drawn here:

  1. Only use personal information in a manner that is consistent with the consent you’ve been given (in a listing agreement or elsewhere).
  2. Don’t forget the straight-face test: if you can’t explain to a client how you used their personal information with a straight-face, odds are you’ve veered off into questionable territory.
  3. Curiosity does more than kill the cat: perhaps more than ever before courts are willing to compensate people – clients – for violations of their privacy.

This is just the tip of the privacy iceberg. For more information on how privacy affects your real estate practice, check out CREA’s Privacy Toolkit for REALTORS® on REALTOR Link®.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Simon Parham, Legal Counsel, is always on hand to provide helpful advice to CREA, Boards, and Associations on all aspects of federal legislation that can be reduced to an acronym, including: PIPEDA; FINTRAC; and the DNCL. In his spare time, Simon enjoys running, camping, discovering the world with his daughter, and planning his “big year.”

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