Ontario Recognizes Tort of Invasion of Privacy

Ontario’s Court of Appeal has issued its decision in Jones v Tsige and the result recognizes a common law tort of invasion of privacy. More technically, the court recognized a “right of action for intrusion upon seclusion” – one of several aspects of privacy.

For those unfamiliar with the case, Ms. Jones and Ms. Tsige worked at different branches of the same bank. They did not know each other but Ms. Tsige was involved in a relationship with Ms. Jones’ former husband. Over a 4 year period, Ms. Tsige used her workplace computer to access Ms. Jones’ personal bank accounts at least 174 times. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address.

Ms. Jones became suspicious that Ms. Tsige was accessing her account and complained to the bank. When confronted by her employer, Ms. Tsige admitted that she had looked at Ms. Jones’ banking information, that she had no legitimate reason to do so and that she understood it was contrary to the Bank’s Code of Business Ethics. The employer disciplined Ms. Tsige by suspending her for a week without pay and denying her a bonus.

Ms. Jones didn’t want to involve her employer by making a complaint under PIPEDA and sued Ms Tsige directly claiming an invasion of her privacy. Counsel for Ms. Tsige made an application to strike out the pleadings. The motion judge granted the motion and awarded costs – rejecting arguments by Ms. Jones that costs should be denied on the ground that the issue was novel and that Ms. Tsige’s conduct was objectionable.

This decision was an appeal of that motion judge’s decision and Mr. Justice Sharpe, writing for the Court of Appeal, used the case to address the issue of whether or not there was a tort of invasion of privacy. There are three quotes that I think sums things up best:

 “In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

“A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

With respect to damages, the court emphasized that the floodgates would not be opened by this decision:

“I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.”

Using criteria set out in Manitoba’s Privacy Act, the court provided benchmarks to assist in determining damages:

1.   the nature, incidence and occasion of the defendant’s wrongful act;

 2.   the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

 3.   any relationship, whether domestic or otherwise, between the parties;

 4.   any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

 5.   the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

It also noted that claims for invasion of privacy had to be balanced with other societal interests:

 “…claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press….Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.”

I anticipate this tort may soon be recognized in other jurisdictions in Canada and individuals who thought no “privacy law” applied to them now must think more carefully about what they say and do. Similarly, while this decision does little to diminish the importance and application of personal information protection statutes in Canada, we all will need some time to sort through the implications for organizations when employees may be sued for an invasion of privacy.

4 Responses to “Ontario Recognizes Tort of Invasion of Privacy”

  1. It seems as though the court is not playing a compensatory game here, but rather their recognition of the tort is serving the deterrence, educational and psychological aspects of tort law. On that front, it will be interesting to see how this case is reported in the mainstream media. Clearly this judgment intends to send a message that unauthorized access of this sort is unacceptable in a liberal democratic society. I’m sure Ms. Jones feels somewhat relieved at the result of the case.

    I haven’t had a chance to dig into the Restatement, but one interesting aspect jumps out at me. S.654(b) defines tortious conduct by means of the concept of an ‘offense’, rather than a ‘harm':

    “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

    The use of the term ‘highly offensive’ is interesting. One issue concerns the propriety of such sanctions in a country whose fundamental political philosophy is (allegedly) based on some form of liberalism – a creed which (in most formulations) holds that merely offensive conduct should not be regulated. (The ‘harm principle’).

    The second issue is that this characterization doesn’t seem to resonate well with the typical rationales for privacy interests found in the common law. For example:

    “…modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury…” (Warren and Brandeis)

    “[Each individual possesses a right to determine] to what extent his thoughts, sentiments, and emotions shall be communicated to others.” (Warren and Brandeis)

    “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect.” (Olmstead v. United States)

    It is far from clear that the jurisprudence supports the idea that offensive conduct is the crux of the privacy issue. Rather, it must be conduct that in some way threatens the basic values that privacy is intended to protect (e.g., autonomy, liberty, development and maintenance of personhood, etc).

    There are also some relevant Canadian quotes:

    In R. v. Plant, the Supreme Court of Canada recognized that the values underlying the privacy interest protected by s. 8 are “dignity, integrity and autonomy”

    “Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual”. (R v Dyment)

    It would be interesting to dig into the rationale behind the formulation of the tort in the Restatement. Perhaps the courts have clarified the meaning of ‘highly offensive’ in a manner that narrows the scope of the term.

  2. Regulated health professionals such as massage therapists, chiropractors, physiotherapists, naturopaths and related health care providers often use USA owned online booking systems and also USA owned health history and database systems without the knowledge of their clients, that their health data privacy is subject to foreign country privacy legislation. This is a class action breach of patient privacy lawsuit, waiting to happen. Not to mention the USA Patriot Act, simply subjecting their patient data to foreign regulation without informed consent!

  3. How do think this case would effect the applicability of the US “FATCA” legislation in Canada?

  4. […] Michael Power, Barrister & Solicitor […]

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