Does the law recognize a right to sue somebody for invasion of
privacy? In a landmark ruling in Jones vs. Tsige, Ontario's highest court recently
said essentially: Yes, in limited circumstances you can sue for
"intrusion upon seclusion". But you will only recover a
This decision is a very significant development in Canadian law.
It has potentially wide-ranging ramifications across many sectors,
including in the labour and employment context.
In July 2009, Sandra Jones discovered that a fellow employee at
the bank where she worked, Winne Tsige, had secretly looked at
Jones' banking records. Tsige had formed a common law
relationship with Jones' former husband. Contrary to bank
policy, Ms. Tsige looked at Jones' banking records 174 times
over four years.
Ms. Tsige did not publish or distribute the information about
Jones in any way. When later confronted by the bank, Ms. Tsige
admitted her actions. She admitted it was contrary to bank policy
and her ethical obligations. She explained that she was in a
financial dispute with Ms. Jones' former husband and was trying
to find out if he was paying child support. Ms. Tsige apologized
for her conduct. She made genuine attempts to make amends. She was
also disciplined by the bank.
Despite Ms. Tsige's apology and efforts to make amends, Ms.
Jones sued for $70,000 for invasion of privacy and breach of her
position of trust. She also sought a further $20,000 in punitive
The Court Decisions
Ms. Tsige initially moved to strike out Jones' law suit.
Represented by Fasken Martineau, she argued that the courts do not
provide a right to sue for invasion of privacy. Rather, privacy
laws in Canada are a matter of statute. Any remedy for Jones had to
be found within those statutes, or within the bank's
Mr. Justice Whitaker initially ruled in favour of Ms. Tsige. He
dismissed her law suit, saying that the law did not recognize any
such right to sue. He also ordered that Ms. Jones pay Ms. Tsige
$35,000 in costs. He felt that Jones had pursued the litigation
aggressively and failed to accept reasonable settlement offers.
However a 3 judge panel of the Court of Appeal, in a ruling
released January 18, unanimously overturned that decision.
The appeal court essentially changed the law in this regard. It
ruled that there would now, in Ontario at least, be a right to sue
for "intrusion upon seclusion" where the following
a party intentionally or recklessly intrudes upon the seclusion
the intrusion invades the other's private affairs or
concerns in a significant way;
there is no lawful justification; and
a reasonable person would find the intrusion to be highly
offensive causing distress, humiliation or anguish.
The Court said that economic harm resulting from the intrusion
need not be shown. On the other hand, claims will only be
recognized for "deliberate and significant invasions of
personal privacy". Examples given were financial or health
records, sexual practices and orientation, employment, diary or
private correspondence. There will also be competing claims, like
freedom of the press and freedom of expression that need to be
reconciled. These competing claims might trump the new intrusion
Damages for intrusion upon seclusion will ordinarily be modest,
said the Court. The range of damages for any one such claim will
not normally be more than $20,000. Nor will punitive damages
normally be granted above that.
In this case, the Court awarded damages of $10,000. It took into
account Ms. Tsige's apology and efforts to make amends. It also
considered that Ms. Jones had suffered no public embarassment or
harm to her health, welfare or financial affairs. Although a
winning party in litigation in Canada is normally entitled to their
legal costs in the action, here the Court ordered no court costs in
favour of Ms. Jones.
The Bottom Line
There is now a right, in Ontario at least, to sue for invasion
of privacy or "intrusion upon seclusion". It seems likely
that courts in at least some other provinces will follow suit. But
the right is limited to deliberate or perhaps reckless, significant
intrusions. The situation must be highly offensive. The law will
not respond to those who are unduly sensitive. Further, the damages
in any individual case will be modest.
This does not, however, rule out significant damages awards
where a deliberate or reckless intrusion involves large numbers of
In addition, it should be noted that there are currently four
Canadian common law provinces (B.C., Saskatchewan, Manitoba and
Newfoundland) which already have statutes that recognize the right
to sue for invasion of privacy. Furthermore, Quebec also has a
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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