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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Heather Robertson
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions