On January 18, for the first time, the Ontario Court of Appeal
in Jones v. Tsige
explicitly recognized the tort of invasion of personal privacy. In
July 2009, Sandra Jones discovered that her co-worker, Winnie
Tsige, had been surreptitiously viewing her bank records for four
years. Although Jones did not know or directly work with Tsige,
Tsige and Jones' ex-husband were in a common-law relationship.
As an employee of the Bank of Montreal (where Jones maintained her
primary bank account), Tsige had full access to Jones' banking
information. Contrary to the bank's policy, Tsige accessed
Jones' banking records at least 174 times. Sharpe J.A. allowed
the appeal, ruled that Tsige committed the tort of "intrusion
upon seclusion" and granted Jones $10,000 in damages.
The Court of Appeal defined the tort "intrusion upon
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.
The Court noted that proof of actual loss is not required and
gave examples of private matters that can objectively be described
as highly offensive: one's financial or health records, sexual
practices and orientation, employment or private correspondence.
Tsige was able to access Jones' banking transaction details, as
well as personal information such as date of birth, marital status
Despite the absence of any statutory private right of action
between individuals in Ontario (unlike in a number of other
Canadian, American and Commonwealth jurisdictions), privacy has
long been recognized as an important underlying and animating value
of various traditional common law causes of action to protect
personal and territorial privacy. The Court pointed to the explicit
recognition of a right to privacy underlying certain Charter rights and
freedoms, and to the principle that the common law should be
developed in a manner consistent with Charter values in
choosing to expand the common law.
According to the Court,
[i]t is within the capacity of the
common law to evolve to respond to the problem posed by the routine
collection and aggregation of highly personal information that is
readily accessible in electronic form. Technological change poses a
novel threat to a right of privacy that has been protected for
hundreds of years by the common law under various guises and that,
since 1982 and the Charter, has been recognized as a right
that is integral to our social and political order.
Sharpe J.A. ruled that damages for intrusion upon seclusion in
cases where the plaintiff has suffered no monetary loss should be
modest but sufficient to mark the wrong that has been done. He
fixed the range at up to $20,000 on a sliding scale loosely based
on factors including the nature of the wrongful act, the effect on
the plaintiff's health, social, business or financial position,
any relationship between the parties, any distress, annoyance or
embarrassment suffered, and the conduct of the parties including
any apology made by the defendant. In the present case, since
Tsige's actions were deliberate and arose from a complex web of
domestic arrangements likely to provoke animosity and did, but
Jones suffered no public embarrassment or harm to her health,
social, business or financial position and Tsige apologized for her
conduct, the mid-point of the range was chosen.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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