Canada: Ontario Court Of Appeal Recognizes New Invasion Of Privacy Claim

The Ontario Court of Appeal has recognized a new legal claim for invasion of a person's right to privacy – the right to seclusion of one's private affairs from the public eye.

In that case, the plaintiff and defendant worked for the same bank. The defendant became involved with the plaintiff's former husband. She used her work computer to access the plaintiff's bank records at least 174 times over a four-year period, without the plaintiff's knowledge or consent. The plaintiff sued for invasion of privacy and breach of fiduciary duty, seeking $20,000 in punitive and exemplary damages. The lower court dismissed her claims. It held there was no claim of invasion of privacy under Ontario law. (Unlike some other provinces, Ontario does not have legislation that creates a statutory claim for breach of privacy.) It found the defendant owed the plaintiff no fiduciary duty. The plaintiff appealed on the privacy issue only.

The Court of Appeal examined at length the nature of breach of privacy claims and how the concept of privacy is treated in different Canadian and other common law jurisdictions. The Court highlighted the long-standing existence of several privacy-related torts in the United States, as well as legal commentary from the Supreme Court of Canada and elsewhere in Canada on privacy as a key value of Canadian society. The Court further noted that while some provinces (British Columbia being one of them) have enacted privacy legislation creating statutory claims for breach of privacy, in general that legislation is vague about what qualifies as a compensable breach. Therefore, there was room for the common law to fill in legislative gaps. Technological advances and the proliferation of other legal efforts to protect privacy of information (such as legislation limiting what organizations can do in collecting and using personal information) were referred to as part of the rationale for the extension of protection of privacy.

To make a claim in Ontario for breach of privacy on the basis of "intrusion upon seclusion" (the precise claim the Court created), a plaintiff must prove the following:

In terms of damages, a plaintiff need not show any economic loss (though economic loss can be recovered if suffered). Rather, damages will generally be based on:

These factors are difficult to quantify. Damages in Canadian privacy cases have ranged from $500 for nominal breaches up to $50,000 in cases of egregious conduct. The Court settled on a range of up to $20,000 in general damages for breach of privacy claims and awarded $10,000 in this case, with no award for punitive or aggravated damages. The impact of this development on privacy law in practice remains to be seen. First, Ontario courts had in the past allowed claims that were, in substance, breach of privacy claims, without going so far as to put them in a new category. Of course, a remedy for these kinds of claims was potentially available in provinces such as BC through legislation.

Second, statutory breach of privacy claims are not particularly common and there is currently nothing to suggest this new claim will be any more popular. Third, the damages that can be recovered are not likely to be significant (though involvement in a lawsuit can be costly).

Further, privacy rights are limited. The Ontario Court of Appeal in this case recognized that claims for protection of privacy may be at odds with other legitimate claims, such as freedom of expression and freedom of the press. The right to privacy may have to yield to those other claims. The Court referred back to an earlier Supreme Court of Canada decision that the protections available to persons who communicate facts that the public has an interest in knowing should be broad.

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