B.C. hospital employee who claimed intimate photo was shared without consent has complaint dismissed

A B.C. hospital employee who alleges an ex-partner of his shared a nude photo of him without his consent has been told he had no reasonable expectation of privacy for the picture he took of himself while at work.

His complaint was dismissed by the B.C. Civil Resolution Tribunal (CRT) in a decision issued in April, with the tribunal member adding that the man's picture could be interpreted as indecent exhibition in public, contrary to the Criminal Code.

The man filed a complaint through the CRT under the Intimate Images Protection Act (IIPA) and sought $5,000 in damages from his ex, who is also his coworker at a B.C. hospital.

The act allows people who've had nude photos of themselves shared by others without their permission, among other things, to seek financial compensation through legal channels.

According to the CRT decision, the man, known as GW, used to be romantically involved with the woman, DM. Both of their names are protected by a publication ban.

While they were together, GW sent DM a fully nude photo in which he exposed his genitals.

The man told the tribunal that he took the picture while alone in a room, on a work break, during a night shift when patients were elsewhere and hooked up to their monitoring machines. Since it was night, he said, there weren't many others around in the hospital unit, but he used a wooden door stopper to hold the door closed.

"He says his normal practice is to post a sign on the door saying 'Do not disturb' and that he draws the curtain," reads the decision.

The decision describes that about a year later, someone complained about GW, alleging inappropriate behaviour at a clinical site on the job. His employer investigated and received a copy of the photo. GW was suspended and put on work probation.

GW alleged that DM must have been the one to share the photo with his employer, and that only she and another former partner had copies of the photo.

Not an intimate image

DM denied the claims against her. She also argued that by taking the picture GW broke several workplace rules and that he took the photo in a public hospital, while on shift when another employee or patient could have accessed the room.

The tribunal member ruled that GW did not have a reasonable expectation of privacy when the picture was shared, which means it was not an "intimate image" as defined by the IIPA, and therefore he isn't entitled to seek financial damages.

"I found that it was not objectively reasonable for an employee to expect privacy over an intimate image taken at work, specifically when shared with that person's employer as part of an investigation into the employee's conduct," reads Andrea Ritchie's CRT decision.

But the decision didn't stop there. Ritchie went on to explain that even if she had considered the picture to be an intimate image, she still wouldn't have ruled in favour of GW.

Public interest

The IIPA, she said, lays out reasons that a person shouldn't be held liable for sharing an intimate image. This includes a scenario in which a person shares an intimate image in a limited way out of concern for public interest.

The fact that GW's workplace photo "could reasonably be interpreted as indecent exhibition in a public place" under the Criminal Code, Ritchie said, would likely meet that bar. 

"I find that no matter who shared the image with the applicant's employer, it was in the public interest … and [DM] is not liable for damages," the decision reads.

Ritchie, who noted she did not have enough evidence to decide which of GW's exes had shared the picture, said that whoever did share the nude photo didn't appear to have shared it with anyone other than the employer.

The IIPA, introduced in January 2024, covers non-consensual distribution or threats of distribution of intimate images, including near-nude images, videos, livestreams and digitally altered images. In a statement laying out how the IIPA works, the Canadian Bar Association says that the non-consensual sharing of intimate images "can be a devastating form of harm."