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w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 6 45 ex-wife worked as an escort. Interesting- ly, the court in M.S.L. refused to apply a moral lens to the question before it even though it was asked not to award a rem- edy for a breach of confidence "relating to matters which have a grossly immoral tendency." In M.S.L., the breach of confidence question was a relatively small issue in a larger family law case. McConchie says now that Doe 464533 is out, he expects more plaintiffs across Canada will be looking to bring claims under the tort with similar complaints. "I don't see a reason in principle why, where the facts otherwise are applicable and meet the test cannot be applied to oral gossip," he says, adding people who have suf- fered damages as a result of a confidant's betrayal will likely have a cause of action. While breach of confidence and pri- vacy overlap in some cases, they are two distinct considerations, according to Alex Cameron, a litigation and privacy lawyer at Fasken Martineau DuMoulin LLP. For example, the former puts emphasis on the obligation of confidence, including the relationship between the people who discussed private information and the condition upon which the information was shared. That quality may not always exist in breach of privacy cases, he says. And unlike public disclosure of pri- vate facts — the other tort the court in Doe 464533 recognized — the tort of breach of confidence doesn't depend upon the dissemination of the informa- tion more widely than just to another person who can use it in a damaging way for the person who shared it in confi- dence, Fraser explains. "The key part of the tort of breach of confidence is that it has to be to your detriment." In breach of confidence cases arising from personal contexts, it's often fairly easy to establish the disclosure of the confidential information. The damning evidence could even be in an e-mail, a text message, or a tweet. The question is really about whether the law will hold someone liable for having made that dis- closure, says Cameron. The remedy for a finding of breach of confidence could, of course, involve damage awards. That's partly why the tort is more common in commercial con- texts, according to Dantzer, who notes whoever is found in breach of confidence will have to have the capacity to pay up the damages. The other issue is simply the irony of bringing a case about private information that should have never been disclosed into an open, public court. "It's still a very difficult subject," says Dantzer. "If I told you that I was a drug addict and you told my employer, now I have to tell the world through the lawsuit that I am a drug addict. So that might be a bit of a barrier." That barrier, however, could sometimes be overcome by a publication ban on the claimant's name in the court's ruling, as was the case in Doe 464533. In spite of conventional wisdom say- ing privacy is dead because people are sharing much of their lives online, Fraser says the reality is that concerns about privacy are also as acute as ever. And if the courts' inclination so far tells us any- thing, it's that "the arc of justice is long, and it bends towards privacy." Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS FOR L AWYERS AND NON - LAWYERS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Untitled-1 1 2015-02-25 8:38 AM

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