Canada: The Ontario Court Of Appeal Expands Canadian Privacy Law

Last Updated: July 3 2012
Article by Heather Robertson

In what is likely to be one of the most talked about Canadian privacy law decisions of the year, the Ontario Court of Appeal (the "Court") in Jones v. Tsige, 2012 ONCA 32, recognized the existence of a right of action for the privacy tort of intrusion upon seclusion. The Court noted that the recognition of such an action would be consistent with the role of the Court "to develop the common law in a manner consistent with the changing needs of society."

The recognition of a new common law privacy tort. In this case, the plaintiff Sandra Jones and the defendant Winnie Tsige worked in different branches of the Bank of Montreal. Tsige became involved with Jones's former husband and for approximately four years, Tsige used her workplace computer to access Jones's personal bank accounts at the Bank of Montreal. The personal bank account information included information such as transaction details, and personal information including Jones's date of birth, marital status and address. The information accessed was not published or distributed by Tsige. Jones complained to the Bank of Montreal after becoming suspicious that Tsige was accessing her account. Tsige admitted to her employer that she had looked at Jones's banking information, contrary to the Bank's Code of Business Conduct and Ethics, but noted that she was in a financial dispute with Jones's former husband and therefore accessed the accounts to determine whether Jones was receiving child support.

Jones sued Tsige for invasion of privacy and breach of fiduciary duty claiming damages of $70,000 and punitive and exemplary damages of $20,000. Jones moved for summary judgment, while Tsige brought a cross-motion for summary judgment to dismiss the action. The Motion Judge dismissed the claim for breach of fiduciary duty, and dismissed Jones's motion for summary judgment with respect to the invasion of privacy on the basis that privacy legislation protected certain rights and an expansion of those rights should be dealt with not by common law, but by statute. The cross-motion brought by Tsige to dismiss the action was granted.

Jones appealed to the Ontario Court of Appeal raising the issue of whether the Motion Judge erred in finding that Ontario does not recognize a cause of action for invasion of privacy and also appealed the Motion Judge's cost order.

Justice Sharpe, writing for the Court of Appeal, started by noting that "[t]he question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance, and various property rights. Although the individual's privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain."

Justice Sharpe went on to note that the classification of four torts relating to privacy set out in William L. Prosser's "Privacy" article ((1960), 48 Cal. L. R. 383) was accepted by most American jurisdictions. Among the four torts described by Prosser was the "intrusion upon seclusion" tort, considered by the Court to be most relevant to the facts of the case. After a discussion of Canadian cases, the Court noted that at the very least, the clear trend in the Ontario case law is to leave open the possibility that the tort of intrusion upon seclusion exists. However, in Canada, an appellate court had yet to make a definitive statement regarding the existence of such a tort.

The Court also noted that, while the Canadian Charter of Rights and Freedoms, (the "Charter") does not apply to common law disputes between private individuals, the "recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff's seclusion."

Tsige argued that privacy was the subject of both federal and provincial legislation and therefore, the Court should not be expanding the reach of the common law into these legislated areas. However, the Court noted that with respect to the federal legislation, Jones would be forced to lodge a complaint against the Bank instead of Tsige. Further, the fact that Tsige acted contrary to the Bank's policy could provide the Bank with a complete defence to the claim. Also, Jones would be unable to claim damages under the federal legislation. With respect to the existence of provincial privacy acts, the Court noted these provincial acts established a limited right of action and "no provincial legislation provides a precise definition of what constitutes an invasion of privacy."

For the above reasons, Justice Sharpe ultimately concluded that it was appropriate for the Court to recognize the existence of the tort of intrusion upon seclusion. In doing so, Justice Sharpe noted that this particular case contained "facts that cry out for a remedy."

With respect to the elements of the tort, the Court adopted the intrusion upon seclusion test as stated in the Restatement (Second) of Torts (2010):

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The Court went further to note that the defendant's intentional conduct would include recklessness. Further, the defendant must have, without lawful justification, invaded the plaintiff's private affairs or concerns, and finally, the reasonable person would regard the invasion as "highly offensive causing distress, humiliation or anguish." In addition, the Court clarified that proof of harm to a "recognized economic interest" is not required under the tort.

Factors in assessing damages. In assessing damages the Court noted that in situations where the plaintiff has suffered no pecuniary loss, the damages should be fixed at up to $20,000. In addition, the factors identified in Manitoba's Privacy Act should be used as a guide in determining damages. These factors include:

  1. the nature, incidence and occasion of the defendant's wrongful act;
  2. the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
  3. any relationship, whether domestic or otherwise, between the parties;
  4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
  5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

Applying the Court's reasoning to the case at hand, Justice Sharpe allowed the appeal and granted Jones damages in the amount of $10,000. Specifically, Justice Sharpe held that "the intrusion was intentional, it amounted to an unlawful invasion of Jones' private affairs, it would be viewed as highly offensive to the reasonable person and caused distress, humiliation or anguish."

Implications. This decision is important given that it confirms the existence of the tort of intrusion upon seclusion and sets out the appropriate test for the cause of action. In addition, given the elements of the test, the cause of action could apply to a broad range of activities, including unauthorized access to a third party's email or Facebook account and abusive telemarketing behaviour. In addition, employers should be mindful that the test as set out by the Court of Appeal does not preclude an employee from suing its employer for intrusion upon seclusion.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

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Heather Robertson
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