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 person.
Elements
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 wrongful act;
- the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
- any relationship, whether domestic or otherwise, between the parties;
- 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 defendant.
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 currently operate.
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.
