Advancements in technology have made collecting, storing, and
accessing the personal data of an individual easier than ever
before. Consequently, concerns about the risk of unauthorized
access to personal information have increased.
In Jones v. Tsige, the Ontario Court of Appeal
recognized a right to bring a civil action for invasion of personal
privacy. The Court examined case law from Ontario and other
provinces, provincial legislation relating to privacy, and the
state of the law in foreign jurisdictions. The Court noted the
Supreme Court of Canada interpreted Section 8 of the
Charter, which protects against unreasonable search and
seizure, as protecting the underlying right to privacy. The Court
stated the common law should be developed in a manner consistent
with Charter values and the explicit recognition of a
right to privacy as underlying a Charter right supported
the recognition of a civil action for damages for intrusion upon a
plaintiff's seclusion. Recognizing this particular cause of
action would amount to an incremental step consistent with the
court's role to develop the common law in a manner that is
consistent with the changing needs of society.
Elements of the tort
The elements of the cause of action would be the following:
The defendant's intrusive conduct must be intentional,
within which recklessness would be included.
The defendant must have invaded, without lawful justification,
the plaintiff's private affairs or concerns.
A reasonable person would regard the invasion as highly
offensive causing distress, humiliation, or anguish. Intrusion into
financial or health records, sexual practices and orientation,
employment, diary or private correspondence would be considered
highly offensive. Proof of harm to an economic interest would not
be an element of the cause of action.
Notably, the Court stated no right to privacy can be absolute
and many claims for the protection of privacy will have to be
reconciled with, and even yield to, competing claims, such as
claims for the protection of freedom of the press and freedom of
Determining damages amounts
The Court also stated damages for intrusion upon seclusion in
cases in which the plaintiff suffered no pecuniary loss should be
modest given the intangible nature of the protected interest. The
Court fixed the range at up to $20,000.00. The Court provided
several factors a court should consider when determining where in
the range the case would fall:
The nature, incidence and occasion of the defendant's
The effect of the wrong on the plaintiff's health, welfare,
social, business, or financial position.
Any relationship, whether domestic or otherwise, between the
Any distress, annoyance or embarrassment suffered by the
plaintiff arising from the wrong.
The conduct of the parties, both before and after the wrong,
including any apology or offer of amends made by the
Application of the test to the case
In Jones v. Tsige, the appellant discovered the
respondent, a bank employee, had secretly viewed her banking
records over several years. The bank employee was in a common law
relationship with the appellant's ex-husband. The banking
records contained not only transactions details, but also, the
appellant's date of birth, marital status, and address. The
bank employee did not publish, distribute, or record the
The Court noted that although the bank employee was apologetic
and tried to make amends for her actions, the bank employee's
actions arose from a complex web of domestic arrangements and were
deliberate, prolonged, and shocking. Any person in the
appellant's position would be profoundly disturbed by the
significant intrusion into highly personal information. The
appellant was very upset over the intrusion into her private
financial affairs. The Court also took into account how the
appellant suffered no public embarrassment or harm to her health,
welfare, social, business, or financial position. The Court
concluded the appellant was entitled to $10,000.00, which was in
the mid-point of the range of damages.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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