In McIntosh v. Legal Aid Ontario, Superior Court
Justice Cornell awarded the plaintiff damages of $7,500 after
finding a breach under the relatively new tort of intrusion upon
seclusion. This tort was first recognized in Ontario in Jones v.
Tsige, 2012 ONCA 32 (CanLII), in which the Court of Appeal for
Ontario allowed a civil action for damages for the invasion of
personal privacy in Ontario and awarded the plaintiff $10,000 in
The facts of McIntosh are as follows. During a fight with her
ex-boyfriend in June of 2010, the plaintiff was advised by him that
his new girlfriend, who worked at Legal Aid Ontario, had accessed
her file in order to gather information about the plaintiff. The
defendant then telephoned the plaintiff and revealed that she had
obtained confidential information from the plaintiff's Legal
Aid Ontario case file, including that the plaintiff was involved
with a Children's Aid file. The defendant threatened to call
the Children's Aid Society in an effort to have the
plaintiff's children taken away from her. As a result of this
telephone call, the plaintiff filed a complaint with Legal Aid
Ontario and with the Privacy Commissioner of Ontario. After
completing an investigation, Legal Aid Ontario provided a letter of
apology to the plaintiff. The action against Legal Aid Ontario was
dismissed. The defendant did not apologize and did not defend the
The plaintiff asserted that an investigation was conducted as a
result of the defendant's phone call to the Children's Aid
Society. The investigation ended and the file was closed as no
basis was found for the allegations. In her statement of claim, the
plaintiff alleged that as a result of the breach of privacy, she
has experienced substantial anxiety, emotional upset, depression,
significant stress, embarrassment, weight loss, insomnia, isolation
and an inability to concentrate at work.
Justice Cornell held that there could be no doubt that the
defendant accessed the plaintiff's Legal Aid Ontario file for
an improper purpose, and that this breach of her privacy rights was
sufficient to establish liability based upon the tort of intrusion
upon seclusion. The information that had been provided by the
plaintiff to Legal Aid Ontario was clearly personal information
provided with an expectation that it would be used solely in
connection with her legal aid application. Despite this finding,
Justice Cornell went on to find the breach had affected her
emotional state "in a minor fashion only" and awarded the
plaintiff general damages of $7,500, rejected the plaintiff's
claims for punitive and aggravated damages, and awarded partial
indemnity costs of $6,500.
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