April 2, 2012
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A statutory tort of invasion of privacy has long been recognized in other provinces such as British Columbia1, Manitoba2, Newfoundland3 and Saskatchewan4. However, Ontario courts and courts in other provinces with no statutory tort of invasion of privacy legislation have been struggling for many years on whether or not to specifically recognize a common law tort of invasion of privacy. On January 18, 2012, the Ontario Court of Appeal released its decision in Jones v. Tsige5. In doing so, it overturned the decision of Justice Whitaker6 and recognized a new tort respecting invasion of privacy: the tort of “intrusion upon seclusion”.

The facts of the Jones case are: Ms. Jones and Ms. Tsige were both employees of the Bank of Montreal (“BMO”), but worked at different branches. Ms. Jones did all of her personal banking with BMO. Over the course of four years and on 174 occasions, Ms. Tsige accessed and reviewed Ms. Jones’ private banking records. She was caught and disciplined by BMO. Ms. Jones sued Ms. Tsige for her conduct, alleging she committed the tort of invading her privacy. Both parties moved for summary judgment, with Ms. Tsige arguing that there is no common law tort of invasion of privacy.

In the lower court decision, Justice Whitaker noted that Ontario law includes at least four statutes which structure and enforce privacy obligations, namely:

  1. Personal information Protection and Electronic Documents Act, 2000, c. 5 (“PIPEDA”);
  2. Personal health Information Protection Act, 2004 S.O. 2004, c. 3 (“PHIPA”);
  3. Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. P. 31; and,
  4. Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.7

He specifically pointed out that Ms. Jones could have initiated a complaint to the Commissioner under PIPEDA, with ultimate recourse to the Federal Court because PIPEDA applies to the banking sector. For this reason, he did not accept the argument that if a common law tort of invasion of privacy was not recognized, Ms. Jones would be left without a remedy.8

Justice Whitaker then considered the various authorities and the development of the tort of invasion of privacy. In particular, he acknowledged that the decision in Somwar v. McDonald’s Restaurants of Canada Ltd. (2006), Carswell Ont 48, 263 D.L.R. (4th) 752 (S.C.J.) (“Somwar“) stood for the proposition that “it was not settled law in Ontario that there is no tort of invasion of privacy”. Despite this assertion, after his review of the authorities, Justice Whitaker ultimately concluded that no such tort exists in Ontario.9

Justice Whitaker’s decision appears to be heavily influenced by a reference to privacy rights made in obiter by the Ontario Court of Appeal in Euteneier v. Lee, [2005] O.J. No. 3896 (CA) where the Court commented that “there is no “free standing” right to…privacy….at common law”.10 This is perplexing in that the Court of Appeal in Euteneier was not specifically asked to rule on whether or not there was a common law tort for invasion of privacy. In that case, Ms. Euteneier sued the police for negligence, assault, civil conspiracy and breach of her rights under the Charter of Rights and Freedoms after she was handcuffed naked to the bars of her jail cell. Ms. Euteneier’s claim was dismissed at trial on the grounds that the police acted reasonably in carrying out their duties and the issue on appeal was whether the trial judge failed to interpret the police’s duty of care owed to the plaintiff in view of the plaintiff’s privacy and other dignity interests.11

The Ontario Court of Appeal overturned the decision of Justice Whitaker and recognized a new tort respecting invasion of privacy: the tort of “intrusion upon seclusion”.

In coming to the conclusion that a new tort should be recognized, the Court of Appeal based its rationale on current legal scholarship regarding invasion of privacy as well as the state of the common law in Ontario, other Canadian provinces, the U.S., England, Australia and New Zealand. The starting point for the Court of Appeal was an article by an American scholar, Professor Prosser, which highlighted “four privacy torts”:

  1. Intrusion upon the plaintiff’s seclusion;
  2. Public disclosure of embarrassing private facts about the plaintiff;
  3. Publicity which places the plaintiff in a false light in the public eye; and
  4. Appropriation of the plaintiff’s name or likeness

The Court of Appeal chose to focus on the first one – intrusion upon seclusion. The Court of Appeal noted that Ontario already recognizes an independent tort of appropriation of personality.12

The rationale for the new tort was also heavily influenced by Charter jurisprudence, which has recognized three distinct privacy interests: personal privacy, territorial privacy and informational privacy.13 The Court of Appeal emphasized how the rapid pace of advancements in technology has motivated the legal protection of privacy rights.

With respect to privacy legislation, the Court of Appeal noted 3 reasons why resorting to a remedy under PIPEDA was not an adequate remedy for Ms. Jones in this case:

  1. PIPEDA only applies to organizations subject to federal jurisdiction, so Ms. Jones would have had to file a complaint against her employer BMO, and not Ms. Tsige, the actual wrongdoer;
  2. Ms. Tsige acted as a rogue employee, contrary to BMO policies, which may have provided BMO with a complete answer to Ms. Jones’ complaint under PIPEDA; and,
  3. Damages are not a remedy under PIPEDA.14

The final rationale for the new tort was fairness: the Jones case presented with facts that “[cried] out for remedy”. In addition, the discipline Ms. Tsige received from BMO was governed by employment law and did not respond directly to the wrong done to Ms. Jones.

The Court of Appeal held that in order to make out a claim for the tort of intrusion upon seclusion, a plaintiff must prove the following:

  1. The defendant’s conduct must be intentional, which can include recklessness;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns;
  3. The reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.15

Interestingly, proof of harm to economic interests is not required to make out a claim for intrusion upon seclusion. This will be discussed in more detail below.

The Court of Appeal noted that claims for intrusion upon seclusion will only arise in circumstances surrounding deliberate and significant invasions of personal privacy. For example, intrusions into one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence.16 Claims from sensitive individuals or individuals who are unusually concerned about their privacy are excluded.

In addition, the Court of Appeal recognized that privacy interests cannot be absolute and many claims for privacy will have to be reconciled with, or yield to, competing claims for freedom of expression and freedom of the press.17 However, the Court of Appeal declined to elaborate on this issue further as no such competing claim existed in the facts before them.

With respect to damages, in the case at bar, Ms. Jones did not suffer any pecuniary loss as a result of Ms. Tsige’s breach of privacy. Accordingly, the Court of Appeal discussed the appropriate approach to damages in cases of non-pecuniary loss.

In cases of breach of intrusion upon seclusion involving non-pecuniary loss, the damages will be considered “symbolic”.18 The Court of Appeal fixed the range of damages at up to $20,000.19The factors considered in awarding damages are:

  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.20

Awards of aggravated and punitive damages are also available in appropriate cases.

The Court of Appeal held that the Jones case was in the “mid-range” and awarded Ms. Jones $10,000.00, but declined to award any costs.

Although the Court of Appeal noted that in most cases, damage awards will not exceed $20,000, there could still be some cases where a plaintiff may be able to prove pecuniary loss, in which case, damages could be awarded in excess of that amount. However, because the Court of Appeal capped damages for non-pecuniary loss for “intrusions upon seclusion” at $20,000, most of these types of claims will be litigated in the Ontario Small Claims Court, where the monetary jurisdiction is for claims of up to $25,000.

The Jones case represents a watershed in the privacy law jurisprudence. It will be interesting to see how the law will evolve now that a common law tort of “intrusion upon seclusion” has been formally recognized. It remains to be seen whether the legislature will follow the lead of many other Canadian provinces and enact a statutory tort of invasion of privacy as well. Stay tuned…

 

1Privacy Act, R.S.b.C. 1996, c. 373 (“B.C. Privacy Act“).

2The Privacy Act, C.C.S.M. c. P125 (“Manitoba Privacy Act“).

3Privacy Act, R.S.N.L. 1990, c.P-22 (“Newfoundland and Labrador Privacy Act“).

4The Privacy Act, R.S.S. 1978, c.P-24 (“Saskatchewan Privacy Act“).

5Jones v. Tsige, 2012 ONCA 32 [Jones].

6Jones v. Tsige, 2011 ONSC 1475 [lower court decision]

7Ibid. at para. 29.

8Ibid. at para. 54.

9Ibid. at para. 57.

10Ibid. at para. 48.11Euteneier v. Lee, 2005 CarswellOnt 4352 at para.32 (CA).

12See Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 (H.C.J.).

13Jones, supra note 5 at 41.

14This statement is not entirely accurate. You can seek damages under PIPEDA. In addition, there is jurisprudence from the Federal Court on how those damages should be calculated. However, the Court of Appeal did not canvass that case law in its decision.

15Ibid. at 71.

16Ibid. at 72.

17Ibid. at 73.

18Ibid. at 75.

19Ibid. at 87.

20Ibid.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.