Canada: Ontario Court Of Appeal Recognizes The Tort Of Invasion Of Privacy

In the much anticipated decision of Jones v. Tsige, the Ontario Court of Appeal ruled on January 18, 2012 that there in a common law tort for invasion of privacy recognized in Ontario and awarded damages of $10,000 even though the plaintiff had not suffered any monetary loss. The tort that the Court recognized is based on a cause of action for "intrusion upon seclusion" and represents what the Court itself described as an "incremental step that is consistent with the role of the court to develop the common law in a manner consistent with the changing needs of society." The tort will be recognized where the conduct of the defendant was intentional, including reckless; the defendant has invaded the plaintiff's private affairs or concerns, without lawful justification; and a reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish.

BACKGROUND

The plaintiff, Jones and the defendant, Tsige worked at different branches of a bank, and Jones also maintained her bank accounts at the bank. Jones and Tsige were not acquainted, but at some point Tsige became involved in a relationship with Jones' former husband. Over a period of about four years, Tsige accessed Jones' personal bank accounts at least 174 times. The information she accessed included transactions details, date of birth, marital status and address. Tsige did not publish, distribute or record the information in any way. Jones complained to the bank and, when confronted, Tsige admitted that she had looked at Jones' banking information, that she had no legitimate reason for viewing the information and that she understood it was contrary to the bank's Code of Business Conduct and Ethics and her professional responsibility.

Jones commenced a legal action asserting that her privacy interest in her confidential banking information had been "irreversibly destroyed" and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000. The parties brought cross motions for summary judgment. The motions judge concluded that there is no tort for invasion of privacy in Ontario and noted that the existence of privacy legislation dealing with certain privacy rights indicated that any expansion of those rights should be dealt with legislatively.

COURT OF APPEAL

The appellate court disagreed. It looked at a "four-tort" catalogue1 of interests and determined that the actions of Tsige fell into the category of "intrusion upon the plaintiff's seclusion". The court reviewed existing jurisprudence in Ontario and other provinces, as well a legislative provisions in some provinces creating the tort of invasion of privacy, the Charter and legislative responses to the protection of privacy such as the Personal Information Protection and Electronic Documents Act (PIPEDA ). It concluded that the common law should be developed in a manner consistent with Charter values, and that there was ample support for the recognition of a civil action for damage for intrusion upon a person's seclusion.

The court adopted the elements of the cause of action by referring to the Restatement (Second) of Torts (2010) formulation, "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". Therefore, the conduct of the defendant must be intentional, including reckless; the defendant must have invaded the plaintiff's private affairs or concerns, without lawful justification; and a reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish.

As for the issue of damages, the court concluded that proof of actual loss is not an element of the tort, but nevertheless recognized that there would be situations where the plaintiff had suffered pecuniary loss which would be compensated. Where there was no pecuniary loss, the court concluded that damages should be modest, but sufficient to mark the wrong that has been done. The court set the upper level at $20,000. It neither excluded nor encouraged awards of aggravated or punitive damages. The court decided that this case fell into the mid range and awarded damages of $10,000. As an Appendix, the court provided a useful summary of Ontario damage awards in privacy related causes of action.

BLG COMMENTS

This decision is clearly an important advance in the development of privacy law. While legislation such as PIPEDA provides some degree of recourse when an organization is involved, this decision clearly extends privacy rights to other circumstances. Questions do still remain. If there is a statutory remedy, can a plaintiff choose between that remedy and this common law remedy? Will damages of only $20,000 as a general maximum make individual claims viable? Will this decision led to increased class action activity where the invasion of privacy involves a number of individuals?

Footnotes

1. Referencing William L. Prosser, "Privacy" (1960), 48 Cal. L. R. 383, the catalogue consists of, 1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs, 2) public disclosure of embarrassing private facts about the plaintiff, 3) publicity which places the plaintiff in a false light in the puglic eye, and 4) appropriation, for the defendant's advantage, of the plaintiff's name of likeness.

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