Does entering someone's house while he is out of the country and stealing his personal documents amount to conduct that is so reprehensible that it might warrant an award for punitive damages on top of damages for breach of privacy? This was the question addressed by the Ontario Superior Court of Justice in Furfari v Pedias, 2019 ONSC 4278 ("Furfari").
The Plaintiff, Mr. Furfari, had previously been friends with the Defendant, Mr. Pedias, and his brother Mario, who was the vice-president of the company that the Plaintiff had previously worked for, and which was now suing him in unrelated action. The Plaintiff claimed to have hired the Defendant from time to time to carry out a variety of (unsupervised) handyman tasks on his property.
The Plaintiff alleged that the Defendant had entered his home while he was on vacation and taken confidential documents relating to his personal and financial affairs, suggesting that the Defendant had done so to assist his brother in the suit against the Plaintiff. The Plaintiff claimed for breach of confidence and intrusion upon seclusion. He sought aggravated damages, citing psychological harm and loss of reputation, as well as punitive damages. The Defendant brought a motion to strike under Rule 21.01(b) of the Rules of Civil Procedure.
The Judge noted that the Plaintiff's statement of claim was brief. It did not identify the documents that had allegedly been taken. Nor did it describe any misuse of the documents, or provide any particulars to support the Plaintiff's claims of psychological harm and loss of reputation. With respect to the claim of aggravated damages, while the judge was satisfied that the claim sufficiently pleaded the defendant's alleged reprehensible conduct, it did not plead the effects of the conduct. The Judge therefore struck the claims for breach of confidence and aggravated damages.
She did not strike the claims for intrusion upon seclusion and punitive damages. Unlike aggravated damages, the intention behind punitive damages is to punish a defendant, and as such, particulars are not required. She was satisfied that, if proven to be true, the Plaintiff's allegations could constitute an invasion of privacy so offensive as to cause distress, humiliation or anguish, thereby satisfying the test for intrusion upon seclusion. She also stated that the allegations might amount to "reprehensible" conduct justifying an award for punitive damages.
When the Ontario Court of Appeal first recognized the common law tort of intrusion upon seclusion in Jones v Tsige, it stated that punitive damages for such claims should only be awarded in "truly exceptional circumstances." Accordingly, lower courts in Ontario have declined to do so, even for otherwise successful claims; for example, when an individual breached the privacy of a Legal Aid Ontario client by improperly accessing her file.
In contrast, the courts have been more inclined to award punitive damages in actions for the related tort of public disclosure of private facts; for example, when a defendant posted sexually explicit videos of a plaintiff online, or telephoned others to tell them that a plaintiff was staying in a crisis facility.
The decision in Furfari potentially introduces new jeopardy to the tort of intrusion upon seclusion. The position articulated here seems to be that entering someone's home and taking confidential documents could be conduct deserving of punitive damages, conduct above and beyond what is necessary to make out the tort.
However, it is not clear from the jurisprudence where the line between conduct warranting damages for intrusion upon seclusion and conduct warranting punitive damages should be drawn. The test for "intrusion upon seclusion", as set out in the Restatement (Second) of Torts (2010) formulation, builds in the qualifier that the tort will only be made out "if the invasion would be highly offensive to a reasonable person." In other words, there is already a requirement of reprehensibility.
It remains to be seen whether this matter proceeds to litigation, and if so, whether the claim for punitive damages is ultimately made out.
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