Canada: Common Law Privacy Rights: Ontario Court Of Appeal Recognizes Invasion Of Privacy Tort

The Ontario Court of Appeal in the case of Jones v. Tsige, 2012 ONCA 32, has explicitly recognized a common law tort for invasion of a person`s right to privacy, specifically the right to seclusion of one's private affairs from the public eye – a legal issue that remains uncertain in some parts of Canada.

In that case, the Plaintiff and the Defendant worked for the same bank. The Defendant became involved with the Plaintiff's former husband, and the Defendant used her work computer to access the Plaintiff's bank records at least 174 times over a four-year period without the Plaintiff's knowledge or consent. The Plaintiff sued for invasion of privacy and breach of fiduciary duty, seeking $20,000 in punitive and exemplary damages, and proceeded by way of summary trial. The motions judge dismissed the claims. He found no fiduciary duty owing between the parties and, relying on a 2005 Ontario case, held that there was no such tort of invasion of privacy under Ontario law (unlike certain other provinces, Ontario does not have legislation that creates a statutory tort for breach of privacy). The Plaintiff appealed on the privacy point only.

The Court of Appeal examined at length the nature of breach of privacy claims and how the concept of privacy is treated in law in different Canadian and other common law jurisdictions. The Court highlighted the long-standing existence of several privacy-related torts in the USA, as well as Canadian legal commentary from the Supreme Court of Canada and elsewhere on privacy as a key value of Canadian society. The Court further noted that while some provinces (British Columbia being one of them) have enacted privacy legislation creating a statutory cause of action for breach of privacy, in general the statutes are vague as to what will qualify as a compensable breach. Therefore, there was still room for the common law to fill in some legislative gaps. Technological advances and the proliferation of other legal efforts to protect privacy of information (such as legislation circumscribing what organizations can do in collecting and using personal information) were referenced as part of the rationale for the extension to protection of privacy under Ontario common law.

In order to ground a claim in Ontario for breach of privacy on the basis of intrusion upon seclusion, which was the precise tort the Court "created", a plaintiff must prove the following:

  1. The defendant's conduct was intentional or reckless.
  2. The defendant must have invaded the plaintiff's private affairs without lawful justification.
  3. A reasonable person would regard the invasion as highly offensive and as causing distress, humiliation or anguish.

In terms of damages, a plaintiff need not show any economic loss, though damage to economic interests can be recovered if suffered; rather, damages will generally be based on:

  1. the nature, incidence and occasion of the wrongful act;
  2. the effect of the act on the plaintiff's health, welfare, and social, business or financial position;
  3. any prior relationship between the parties;
  4. any distress, annoyance or embarrassment suffered by the plaintiff as a result of the wrong; and
  5. the conduct of the parties before and after the wrong, including any attempt to make amends.

These categories of damages are difficult to quantify, and damages in Canadian common law and statutory privacy cases have ranged from $500 for nominal breaches up to $50,000 in cases of egregious conduct attracting aggravated or punitive damages. The Court settled on a range of up to $20,000 in general damages for breach of privacy claims, and awarded $10,000 in this case with no award for punitive or aggravated damages.

The impact of this development on privacy law in practice remains to be seen. Firstly, Ontario courts had in the past allowed claims that were in substance breach of privacy claims without going so far as to put these claims in a new category of tort. Of course, remedy for these kinds of claims was potentially available in provinces such as BC by legislation. Secondly, statutory breach of privacy claims are not particularly commonly brought and there is currently nothing to suggest that the tort equivalent will be any more popular. Thirdly, the damages that may be recovered are not likely to be significant, and may often be nominal, though involvement in a legal action can be costly.

Further, and of interest to the media in particular, is the fact that privacy rights are circumscribed. The Court in this case recognized that claims for protection of privacy may be at odds with other legitimate claims, such as freedom of expression and freedom of the press. As such, the right to privacy cannot be unqualified and at times may have to yield to those other claims. The Court referred back to the Supreme Court of Canada's commentary in the 2009 defamation case of Grant v. Torstar to the effect that the protections available to persons who communicate facts that the public has an interest in knowing should be broad.

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