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 damages.
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 action.
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.