On January 18, Ontario's Court of Appeal in Jones v.
Tsige rendered a landmark decision that recognized a new
common law tort – intrusion on seclusion. This
cause of action dealing with invasion of privacy now exists in
addition to any other rights of action for privacy breaches.
The arguments for a tort of this nature have come before the
courts in Ontario on numerous occasions, particularly in the last
decade. However, Ontario has been quite reticent to recognize a
tort for invasion of privacy. While it is relatively recent, a
common law tort relating to invasion of privacy already exists in
the United States and in certain other jurisdictions in Canada.
In Jones v. Tsige, the Court of Appeal's decision
changed Ontario's position, recognized arguments first put
forth in 1960, and overturned the decision of first instance that
there was in fact no tort for breach of privacy in Ontario.
The tort of intrusion on seclusion is summarized as follows:
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
The key features of the tort of intrusion on seclusion are, as
set out by Ontario's Court of Appeal, first, that the
defendant's conduct must be intentional, including being
reckless; second, the defendant must have invaded, without lawful
justification, the plaintiff's private affairs or concerns; and
third, that a reasonable person would regard the invasion as highly
offensive causing distress, humiliation or anguish.
Proof of harm to a recognized economic interest is not a
necessary element of the cause of action.
Claims from individuals who are sensitive or unusually concerned
about their privacy are excluded. It is only intrusions into
matters such as one's financial or health records, sexual
practices and orientation, employment, diary or private
correspondence that, viewed objectively on the reasonable person
standard, can be described as highly offensive. A claim for
intrusion upon seclusion will arise only for deliberate and
significant invasions of personal privacy.
Damages for Tort of Intrusion on Seclusion:
The Court of Appeal in Jones v. Tsige provided a guide
for the courts in assessing appropriate damage awards pursuant to a
tort of intrusion on seclusion.
The factors for assessing damages include:
the nature, incidence and occasion of the defendant's
the effect of the wrong on the plaintiff's health, welfare,
social, business or financial position;
any relationship, whether domestic or otherwise, between the
any distress, annoyance or embarrassment suffered by the
plaintiff arising from the wrong; and
the conduct of the parties, both before and after the wrong,
including any apology or offer of amends made by the
If there is pecuniary loss, the courts will award damages
accordingly. Without pecuniary loss, the damages are likely to be
at or under $20,000. The court stated they would not exclude awards
of aggravated and punitive damages in exceptional cases calling for
exceptional remedies. However, the court went on to state that they
would not encourage such awards (absent exceptional circumstances)
as predictability and consistency in award damages are paramount
values in an area where symbolic or moral damages are awarded.
While the limitation on damage awards may dissuade many
individuals from pursuing this cause of action through the courts
independent of other causes of action, this decision gives the
class action bar another avenue to pursue. As well, it certainly
alters the economics of risk profiles under which many businesses
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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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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