Canada: The HR Space: You Can Now Sue For Invasion Of Privacy...Sometimes

Last Updated: February 7 2012
Article by Brian P. Smeenk

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 modest amount.

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.

The Facts

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 damages.

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 policies.

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 elements exist:

  • a party intentionally or recklessly intrudes upon the seclusion of another;
  • 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 claims.

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 victims.

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 similar right.

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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