Canada: Ontario Court Of Appeal Recognizes A Cause Of Action For Invasion Of Privacy: Jones v. Tsige

Last Updated: February 2 2012
Article by The Privacy Law Group

Most Read Contributor in Canada, September 2018


We presented this case at our Privacy Law Update last fall. The Ontario Court of Appeal reversed the trial court last week and we wanted to draw this important case to your attention.

Jones v. Tsige1 was an appeal from a decision granting summary judgment and dismissing a claim for damages. The motion judge had held that Ontario does not recognize a cause of action for invasion of privacy.2

The Respondent, Ms. Tsige, a Bank of Montreal (Bank) employee, had accessed the financial records of the Appellant, Ms. Jones, also an employee of the same bank approximately 174 times over a span of four years. Although Ms. Tsige viewed the information, she did not publish, distribute or record the information. There was no business or employment related reason for Ms. Tsige to access these records. As it turns out, Ms. Tsige later indicated that she was reviewing this information in order to determine whether or not her common law spouse had made, or was making, any support payments to Ms. Jones, who is his ex-wife. The Bank disciplined Ms Tsige for this.3

The Decision

The Court of Appeal acknowledged that the question of whether a common law cause of action for invasion of privacy had been debated for the "past one hundred and twenty years" and set out to settle the debate. After a thorough review of Canadian common law and statutes, as well as U.S. and Commonwealth jurisprudence, the Court held that it was appropriate "to confirm the existence of a right of action for intrusion upon seclusion" or common law action for breach of privacy.

The Court put forward three rationales in support of their decision. Firstly, the case law supports the existence of such a cause of action. Secondly, changes in technology have brought about an "enormous change in the way we communicate and in our capacity to capture, store and retrieve information." Finally, the Court felt that they were presented "with facts that cry out for a remedy."4

Elements of the Cause of Action

The Court adopted the elements from the U.S. Restatement (Second) of Torts (2010) which are as follows:

  • the defendant's conduct must be intentional and this includes recklessness;
  • the invasion must be of the plaintiffs' private affairs or concerns and without lawful justification; and
  • a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish, but proof of harm to a recognized interest is not an element of the cause of action.5


The Court noted some important limitations:

  • A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy.6 Claims from individuals who are sensitive or unusually concerned about their privacy are excluded.7
  • Only intrusions into "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."8
  • Privacy claims may give rise to competing claims such as freedom of expression and freedom of the press. In such cases the protection of privacy "will have to be reconciled with, and even yield to, such competing claims."9


The Court held that "proof of actual loss is not an element of the cause of action for intrusion upon seclusion" and that in a case, such as the one before the court, where there was no actual loss the damages must be "symbolic" or "moral" damages.10 Furthermore, aggravated or punitive damages may be appropriate in exceptional cases.11

Regarding quantum, the Court held that an appropriate cap would be $20,000 and the Court adopted the following guiding factors from the Manitoba Privacy Act when assessing damages:

  1. the nature, incidence and occasion of the defendant's wrongful act;
  2. the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
  3. any relationship, whether domestic or otherwise, between the parties;
  4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
  5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.12

The Court considered that the case before it fell in the middle of the range and assessed damages at $10,000.13

Implications of Decision

This case, absent leave to appeal to the Supreme Court of Canada, likely determines that a common law claim for intrusion upon seclusion or the tort of breach of privacy exists and is actionable.

Although the range of damages is modest this case will render class actions related to breaches of privacy easier to advance.

This case likely does not cap damages in all privacy breach cases. Rather, it leaves open the possibility that damages may be higher where actual harm can be demonstrated.

It is interesting to note that the Court accepted Professor William L. Prosser's classification of privacy torts, which delineates a "four-tort catalogue" as follows:

  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 public eye; and
  4. appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The Court rightly focused on the first category as that was the only one before the Court on the facts of this case. On different facts however, the Court of Appeal may be willing to explore the creation of other "right of privacy" torts in appropriate cases.14

This decision does not just open the door to actions against individuals for alleged invasion of privacy. It may also increase the risk of class actions based on invasion of privacy. What can organizations do to protect themselves? It is important for organizations to make sure they have obtained consent from individuals for the collection, use and disclosure of their personal information as a defence to such potential claims. To decrease their vulnerability to employees who may unlawfully access personal information collected by organizations, organizations should continue to train their employees on an on-going basis on the importance of following their privacy policies.


1 2012 ONCA 32

2 Para 3.

3 Paras 4-7

4 Paras 66-69

5 Para 70

6 Para 71

7 Para 72

8 Para 72

9 Para 73

10 Paras 74-76

11 Para 88

12 Para 87

13 Paras 87, 91

14 Paras 16-21

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions