The common law is always evolving. This change is usually incremental, but every so often there’s a bold development. In the case, Jones v. Tsige, 2012 ONCA 32, the Ontario Court of Appeal set out a new civil cause of action called “intrusion upon seclusion” which essentially means “invasion of privacy.” This article explains the reasoning in Jones v. Tsige and the key elements of this novel cause of action.
Facts
In Jones v Tsige, the parties had never met in person but certainly knew of one another. The Defendant’s common-law partner was the Plaintiff’s ex-husband. Both parties worked and banked at the Bank of Montreal but they were employed at different branches. The Defendant used her position to access the Plaintiff’s personal banking information on 174 occasions.
BMO learned of her conduct and disciplined her. The Defendant’s explanation was not compelling: she said that she was having a financial dispute with her partner and wanted to check whether her partner was paying child support to the Plaintiff. She later apologized for her actions.
Case History
The Plaintiff brought a motion for summary judgment, which is a motion to have the court make a final determination without a full trial. The Defendant made a cross-motion for summary judgment to dismiss the Plaintiff’s claim.
At the Hearing, the Plaintiff made two arguments: (1) the Defendant committed the tort “invasion of privacy” and, (2) the Defendant breached her fiduciary duty to the plaintiff.
The trial judge dismissed the second argument with relative ease: there was no relationship between the parties that could give rise to a fiduciary duty.
The first issue was more contentious. The trial judge surveyed the case law and reasoned that some cases suggest there is, in fact, a cause of action for invasion of privacy. However, the prevailing view is that “invasion of privacy” is not an established tort.
Further, there are other means of bringing a claim related to a privacy breach. In Ontario, there are at least four statutes that mandate and enforce privacy obligations:
- (a) The Personal Information Protection and Electronic Documents Act;
- (b) The Personal Health Information Protection Act;
- (c) The Freedom of Information and Protection of Privacy Act; and
- (d) The Municipal Freedom of Information and Protection of Privacy Act.
The Trial Judge held that the Plaintiff could have simply made her claim in the Federal Court under the Personal Information Protection and Electronic Documents Act (PIPEDA) but instead chose a riskier strategy by arguing that invasion of privacy was a common law tort.
On this basis, the Trial Judge dismissed the Plaintiff’s motion for summary judgment and granted the Defendant’s motion.
Issue
The Court of Appeal began by setting out the central issue of the case: “Does Ontario law recognize a right to bring a civil action for damages for the invasion of personal privacy?”
Legal Analysis
According to the Court of Appeal, this question has been debated for over 120 years. In Ontario (Attorney General) v. Dieleman, 1994 CanLII 10546 (ON SC), the Court described invasion of privacy as “an inceptive, if not ephemeral, legal concept.”
In America, the concept is more defined. American jurisprudence had already established the tort of “intrusion upon seclusion” which is described as follows:
- 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.
Note, intrusion upon seclusion is more narrow than a general breach of privacy since it focuses on the “private affairs or concerns” of an individual.
The Court of Appeal then turned to Canadian jurisprudence. In several cases, courts dismissed claims for invasion of privacy after finding that it was not an established cause of action, but in other cases, courts recognized the potential of a tort for invasion of privacy.
The Court of Appeal emphasized the case of Somwar v. McDonald’s Restaurants of Canada Ltd. (2006), 2006 CanLII 202 (ON SC), 79 O.R. (3d) 172, [2006] O.J. No. 64 (S.C.J.). In that case, the plaintiff accused the employer of invading his privacy by conducting a credit check on him without his consent.
The judge, Stinson J., referenced the right to privacy under s. 8 of the Canadian Charter of Rights and Freedoms. Although the Charter only applies to Government action, it reflects the values that underlie Canadian law.
Stinson J. also recognized relevant public policy considerations. Given the ongoing advancements in technology, individuals are increasingly susceptible to privacy breaches, and the law should evolve to better address this problem.
Decision
The Court of Appeal agreed with Stinson J., holding “the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion.”
Additionally, the Court of Appeal disagreed with the Trial Judge’s holding that the Plaintiff could have simply brought her claim pursuant to PIPEDA. Ontario legislation, including PIPEDA, applies to engagements with public institutions. This legislation does not apply to disputes between individuals.
The Court chose to address this gap in the legislation by formally establishing the tort of intrusion upon seclusion in Ontario.
Elements of Intrusion Upon Seclusion
Intrusion upon seclusion has three elements:
- The Defendant invaded the plaintiff’s private affair or concerns without lawful justification;
- The Defendant’s conduct was intentional or reckless; and
- A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
For instance, intrusion into the following matters might be offensive to a reasonable person: “financial or health records, sexual practices and orientation, employment, diary or private correspondence.”
Notably, a Plaintiff does not have to prove economic loss for the tort to apply.
In this case, all three elements were satisfied. The Defendant intentionally and repeatedly accessed the financial records of the Plaintiff, which would disturb a reasonable person. The Court described the intrusion as “deliberate, prolonged and shocking.”
Damages
The Court held that where the Plaintiff has not suffered economic loss the damages should be relatively modest. The Court capped the general damages for intrusion upon seclusion at $20,000 adjusted for inflation. Punitive and aggravated damages may also be available to plaintiffs. In this case, the Plaintiff was awarded $10,000.
However, this cap has been circumvented. In cases where the violation is egregious, the Court may award damages beyond this cap by referencing more applicable case law (see Jane Doe 72511 v. N.M., 2018 ONSC 6607 (CanLII)).
If your privacy has been invaded, contact a lawyer. The team at Cunningham Swan can help you assess the merits of your case and the options that are available to you. If you choose to bring a claim, we have the acumen and experience to advance your legal interests. We will work hard and advocate for you to maximize your chances of success. Call us today at