After over a century of uncertainty in Canadian common law, the
Ontario Court of Appeal has recognized a civil cause of action for
the invasion of privacy. This is the first time a Canadian appeal
court outside of Quebec has recognized this type of action, which
the court described as a claim for "intrusion upon
The tort of "intrusion upon seclusion"
According to the court, a plaintiff seeking damages for the tort
of intrusion upon seclusion must prove that:
the defendant's conduct was intentional or reckless;
the defendant invaded, without lawful justification, the
plaintiff's private affairs or concerns; and
a reasonable person would regard the invasion as highly
offensive, causing distress, humiliation or anguish.
The court emphasized that it is not necessary
for the victim to prove actual material damage. However, in the
absence of any monetary loss, only a "modest conventional
sum" will be awarded. The court indicated that as a rule,
where the plaintiff has suffered no pecuniary loss, damages for
intrusion upon seclusion cases should not exceed $20,000. The court
also left the door open for more significant claims in the event of
especially reprehensible conduct or where there was actual
Application to the facts of the case
The plaintiff and defendant worked at two branches of the same
bank, but had not met each other. For about four years, the
defendant used her workplace computer to repeatedly access the
plaintiff's personal bank accounts. The defendant did not
publish, distribute or record the plaintiff's financial
information; she was only "snooping." The Court of Appeal
concluded that the plaintiff had a valid claim and awarded her
In anticipation of any potential "floodgates"
argument, the court stressed that a claim for intrusion upon
seclusion will arise only for deliberate and significant invasions
of personal privacy and that "no right to privacy can be
On a final note, the court noted that an employer's internal
privacy policies might constitute a "complete answer" to
an action against the employer for the conduct of a "rogue
employee." This underscores the importance of having the
appropriate privacy policies in place.
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