In the recent case of Jones v. Tsige,1 the
Ontario Court of Appeal recognized that that invasion of privacy
per se2 was actionable in damages.
Jones is not binding law in Nova Scotia; but it is
still a pretty big deal since Ontario Court of Appeal cases are
persuasive and reliable authorities in Nova Scotia.
Statutory protections of privacy have long existed in the
federal and provincial legislative spheres. Statutes may create
common law actions for breach, but, in fact, they rarely
do3. A judicial determination of a relevant statutory
breach may be compelling evidence of wrongdoing in a tort claim,
but proof of a statutory breach per se does not generally
give rise to a damages claim.
The sanctity of personal privacy has been a compelling concept
in numerous constitutional cases in Canada and the United States.
Charter cases that refer to 'the dignity of the person',
and there are many, use privacy language. Legal and policy
arguments respecting reproductive rights, LGBT rights, and so on,
all use, to varying degrees, privacy-based analyses.
Historically, tort law evolved to protect the social contract
through negative enforcement. The globalization of information
storage and trade is a fact of technological evolution. Information
is a commodity to an extent never seen before, so an invasion of
privacy tort is long overdue.
The privacy tort described in Jones applies to
significant invasions of privacy, referring to the sensitivity or
intimacy of the information accessed. It is an intentional tort;
inadvertent access to private information would not be actionable
The tort requires that the intentional invasion be without legal
justification; such as a legal right to access the information for
the purposes for which it was actually accessed. Other legal
justifications could include a competing societal value; free
speech, unfettered political discourse, and so on.
Finally, there is an objective element; the invasion has to be
one that would offend the reasonable person and could reasonably
cause the victim embarrassment or anxiety. The victim need not
prove that the invasion caused actual damage.
The Jones case will likely be used in Nova Scotia as
authority for a new tort, and the existence and form of the tort
will likely be decided by the Supreme Court of Canada. That said,
an invasion of privacy tort has a better chance of being recognized
now than ever before.
1 2012 ONCA 32. The facts is Jones are sordid, and quite
2 "per se" in this
article means freestanding and without requiring application of
some other law or legal finding.
3 Four Canadian provinces include in their privacy
legislation provisions that create a form of tort remedy for
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).