Wednesday, January 18, 2012

Ontario Court of Appeal Recognizes the Tort of Invasion of Privacy

The Ontario Court of Appeal just released its decision today in Jones v. Tsige, a breach of privacy case.

Jones and Tsige were both employees of the Bank of Montreal, but at different branches, and didn't know each other.  Tsige was cohabiting with Jones' ex-husband.

As is common for bank employees, Jones did her personal banking with BMO.  Tsige, accordingly, had access to her banking information, and accessed said information at least 174 times over a period of four years, for no legitimate purpose whatsoever.  (Tsige claims that she was in a dispute with her partner - Jones' ex-husband - and was looking for proof regarding supposed support payments.)

When Jones found out about it, she complained to BMO, which resulted in a one-week suspension of Tsige.  Jones proceeded to commence an action against Tsige.  Last year the action was dismissed on motion, on the basis that Ontario law does not recognize a common law tort of invasion of privacy.

Today the Court of Appeal reversed that decision, finding that, in fact, there is a tort of invasion of privacy (or intrusion upon seclusion).
[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that 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.
The Court goes on to note that the third element makes the tort fairly limited, since only intrusions "into matters such as one's financial or health records, sexual practices and orientation, employment, diary or private correspondence" meet the test.  The Court also leaves open the question of how this right to privacy will be balanced against competing rights of others such as freedom of expression.

Damages become an interesting discussion as well.  Where no pecuniary loss has been suffered, the Court establishes a range of up to $20,000, in the most egregious cases, based on factors such as the "nature, incidence and occasion of the...wrongful act"; the effect on the plaintiff's health, welfare, social, business or financial position; the relationship between the parties; distress, annoyance or embarrassment suffered by the plaintiff; and the conduct of the parties before and afterwards, including apologies or offers of amends.

It is possible that aggravated damages will also be available in certain cases.

Ultimately, the Court of Appeal found that damages of $10,000 were appropriate in this case.

My Thoughts

Assuming that this isn't successfully appealed to the Supreme Court, this may have interested consequences in the employment arena.  It is yet another piece of a fragmented privacy patchwork in Ontario, now, where certain types of breaches of privacy, involving information of very specific natures, will be actionable even where privacy statutes may not apply.  I'm sure that many wrongful dismissal cases will include breach of privacy allegations, and not just because of the limited damages that may be available but also because it will now satisfy the "separate actionable wrong" requirement necessary to claim punitive damages.

In the absence of pecuniary loss, breach of privacy claims which aren't connected to other actions (like wrongful dismissal) will be squarely within the jurisdiction of the Small Claims Court.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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