In the recent case of Jones v. Tsige,1 the Ontario Court of Appeal recognized that that invasion of privacy per se2 was actionable in damages.

Jones is not binding law in Nova Scotia; but it is still a pretty big deal since Ontario Court of Appeal cases are persuasive and reliable authorities in Nova Scotia.

Statutory protections of privacy have long existed in the federal and provincial legislative spheres. Statutes may create common law actions for breach, but, in fact, they rarely do3. A judicial determination of a relevant statutory breach may be compelling evidence of wrongdoing in a tort claim, but proof of a statutory breach per se does not generally give rise to a damages claim.

The sanctity of personal privacy has been a compelling concept in numerous constitutional cases in Canada and the United States. Charter cases that refer to 'the dignity of the person', and there are many, use privacy language. Legal and policy arguments respecting reproductive rights, LGBT rights, and so on, all use, to varying degrees, privacy-based analyses.

Historically, tort law evolved to protect the social contract through negative enforcement. The globalization of information storage and trade is a fact of technological evolution. Information is a commodity to an extent never seen before, so an invasion of privacy tort is long overdue.

The privacy tort described in Jones applies to significant invasions of privacy, referring to the sensitivity or intimacy of the information accessed. It is an intentional tort; inadvertent access to private information would not be actionable per se.

The tort requires that the intentional invasion be without legal justification; such as a legal right to access the information for the purposes for which it was actually accessed. Other legal justifications could include a competing societal value; free speech, unfettered political discourse, and so on.

Finally, there is an objective element; the invasion has to be one that would offend the reasonable person and could reasonably cause the victim embarrassment or anxiety. The victim need not prove that the invasion caused actual damage.

The Jones case will likely be used in Nova Scotia as authority for a new tort, and the existence and form of the tort will likely be decided by the Supreme Court of Canada. That said, an invasion of privacy tort has a better chance of being recognized now than ever before.

Footnotes

1 2012 ONCA 32. The facts is Jones are sordid, and quite unimportant.

2 "per se" in this article means freestanding and without requiring application of some other law or legal finding.

3 Four Canadian provinces include in their privacy legislation provisions that create a form of tort remedy for invasions.

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