In January, the Ontario Court of Appeal confirmed the existence of a new common law right of action for breach of privacy in Jones v. Tsige.1 This potentially wide-ranging new tort is called "intrusion upon seclusion".
The case in question involved two individuals: Sandra Jones ("Jones") and Winnie Tsige ("Tsige"). Both women worked at the Bank of Montreal, but had never met. At the time of the intrusion, Tsige was dating Jones' ex-husband. Contrary to bank policy, Tsige had been surreptitiously looking at Jones' banking records. She had done so at least 174 times over a four-year period. When Jones discovered this invasion of her privacy, she advised her employer. As a result of an internal investigation, Tsige admitted to it. She also admitted that she had no legitimate reason for viewing the records.
Jones brought a claim against Tsige for damages in the amount of $70,000 for, amongst other things, invasion of privacy and punitive and exemplary damages. Jones brought a motion for summary judgment and Tsige brought a cross-motion to dismiss the action. The motion judge held that there is no free-standing right to privacy in Ontario and dismissed the action, awarding costs against Jones.
The central issue for the Ontario Court of Appeal was whether or not the motion judge had erred by dismissing Jones' claim on the ground that Ontario law does not recognize the tort of breach of privacy.
Writing for an unanimous bench, Justice Sharpe canvassed both Canadian and foreign law. In Ontario, he noted that case law has been divided on the issue of whether or not breach of privacy is an actionable wrong. When these claims have been upheld by the courts, damage awards have typically ranged from $500 - $25,000.
Section 8 of the Canadian Charter of Rights and Freedoms (the "Charter"),2 which protects against unreasonable search and seizure, is underpinned by a right to privacy. While the Charter does not apply to common law disputes between private individuals, Justice Sharpe noted that the Supreme Court of Canada has acted to develop the common law in a manner consistent with Charter values.
British Columbia, Saskatchewan, Manitoba and Newfoundland each have statutory torts of invasion of privacy, but Ontario does not. Justice Sharpe acknowledged that there are other privacy statues that apply in Ontario, including the federal Personal Information Protection and Electronic Documents Act.3 He found that the existence of these statutes did not affect the Court's ability to recognize this new tort.
The tort of intrusion upon seclusion – which is recognized in American jurisprudence – consists of three elements: (1) the defendant's conduct must be intentional and this includes reckless conduct; (2) the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and (3) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. Publication or dissemination of the private affairs or information is not required. Proof of economic loss or harm is also not required.
The Court of Appeal gave a four-part rationale for the new tort of intrusion upon seclusion. First, the case law, although not conclusive, supports the recognition of this cause of action. Second, rapid technological change that impacts people's privacy rights demands a legal response. Third, the common law is capable of incremental evolution. Finally, and most importantly, the facts in this case call out for a remedy.
Justice Sharpe emphasized that the tort will only arise for deliberate and significant invasions of privacy. Claims from individuals who are unusually sensitive or concerned about their privacy will be excluded. Justice Sharpe also noted that, although not relevant in this case, claims for privacy protection can give rise to competing claims, such as freedom of the press.
Examples of areas over which an individual might have a reasonable expectation of privacy include: one's financial and health records, sexual practices and orientation, employment, diary or private correspondence,4 electronic data bases that record the books we borrow or buy, the movies we rent or download, where we shop, where we travel, and communications by cell phone, e-mail or text message.5
In terms of damages, individuals may be awarded up to $20,000 if there has been no pecuniary loss. Justice Sharpe set out the factors for judges to consider when determining where in the damages range a case should fall.6 Justice Sharpe stated that aggravated and punitive damages are neither encouraged nor excluded. He referred to a British Columbia decision in which a landlord installed secret surveillance cameras in a tenant's bedroom and bathroom and recorded her. She was awarded $15,000 in general damages and $35,000 in punitive damages. If there is no egregious conduct, however, non-pecuniary damages will be capped at $20,000.
Applying the law to the facts, the Court of Appeal found that Tsige had committed the tort of intrusion upon seclusion. Jones was awarded $10,000 in damages. No aggravated or punitive damages were awarded. The Court of Appeal also declined to award costs to Jones, given the novel nature of the issues. Jones is currently considering whether to seek leave to appeal to the Supreme Court of Canada on the issues of damages and costs.
While it is unclear exactly how the courts will interpret this new tort, intrusion upon seclusion creates a huge potential for class actions. Because economic loss or harm are not required to be proven, groups of individuals could now initiate lawsuits based on, for example, having been harassed by abusive telemarketers, having had their health records accessed without their permission, or having been victims of widespread credit card fraud.
As noted above, a cause of action for intrusion upon seclusion is recognized in American law. Justice Sharpe referred to three other American torts in this case - public disclosure of embarrassing private facts about the plaintiff, publicity which places the plaintiff in a false light in the public eye, and appropriation, for the defendant's benefit, of the plaintiff's name or likeness. Only time will tell if these torts will be recognized in Canada, but the Court of Appeal's decision in Jones signals a willingness to expand the common law to provide recourse for invasions of privacy in the digital age.
1 Jones v. Tsige, 2012 ONCA 32. [Jones]
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
3 Personal Information Protection and Electronic Documents Act, SC 2000, c 5.
4 Jones, supra at para. 72.
5 Jones, supra at para. 67.
6 Jones, supra at para. 78.
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