It’s not every day that new common law is created, but on January 18 of this year the Ontario Court of Appeal gave Canadian privacy lawyers something to get excited about by creating a new tort called “intrusion upon seclusion” in the case of Jones v. Tsige, 2012 ONCA 32 (“Jones”). Will this new law unleash a firestorm of privacy litigation or is it just a bespoke remedy fashioned for one extreme situation? Time will tell, but it’s worth discussing as it seems to cap over 125 years of debate in this province on the issue.
Practitioners and academics have long debated about whether the common law in Canada recognizes the tort of invasion of privacy. The cases that have gone before the courts have tended to be coupled with other claims such as defamation or trespass. With some exceptions, the factual thread among those cases has often been outrageous behaviour against a plaintiff who has suffered some type of distress but not necessarily any significant monetary damages.
Given the behaviour in some of these cases, the courts have expressed sympathy for the affected parties and have not been willing to rule out that the tort existed. For example, in the case of Capan v. Capan, O.J. No. 1361 (H.C.J.) the plaintiff commenced an action against her husband for damages for continuing mental and physical harassment and invasion of privacy because the husband allegedly stalked the plaintiff during a separation, harassed her with persistent telephone calls at home and at her work place, and forced his way into her apartment. The court stated (at paras. 14-15):
What is complained of here is, in its very essence, an abuse of personal rights to privacy and to freedom from harassment. … [I]t has not been demonstrated that the rights referred to will not be recognized by our courts nor that their infringement will not found a cause of action. In my view, it would not be right, on a motion of this kind, for the court to deprive itself of the opportunity to determine, after hearing the evidence, whether such right exists and whether it should be protected.
Similarly, in the 1981 case of Saccone v. Orr, 34 O.R. (2d) 317 (Co. Ct.), which may well be the first case to officially recognize a common law right to privacy, the court found an invasion of privacy where the defendant recorded and played back a private telephone conversation at a municipal council meeting.
Other cases in which the court was prepared to recognize the tort have included the following types of fact situations:
- Locking a gate on an access road, interfering with and blocking the use of the road by the plaintiffs in getting to and from their cottage, and removing a shed, pump and dock with the concomitant shutting off of electricity in the plaintiffs’ cottage at a time when they were not there - Roth v. Roth (1991), 4 O.R. (3d) 740 (Gen. Div).
- Owners of adjoining residential properties greatly reducing the other party’s enjoyment of his property by removing the fence between the two properties and erecting a commercial type surveillance camera aimed at the other party’s yard - Lipiec v. Borsa  O.J. No. 3819 (Gen. Div.).
- Repeated calling by a debt collection agency to a debtor regarding a student loan, several times an hour, at the debtor’s work. The plaintiff disputed the amount outstanding, and was never provided with particulars. Despite the plaintiff’s request to be contacted at home, the defendant’s employees continued to call him at work - Tran v. Financial Debt Recovery Ltd., (2000), 193 D.L.R. (4th) 168 (Ont. S.C.).
More recently, in the case of Somwar v. McDonald’s Restaurants of Canada Ltd., 2006 CanLII 202 (Ont S.C.), behaviour that did not seem to rise to the level of outrageousness of earlier cases still led the court to conclude that, on an interlocutory motion to dismiss the claim, it was not prepared to rule out the tort of invasion of privacy. The court stated at paragraph 31 of the judgment:
Even if the plaintiff's claim for invasion of privacy were classified as "novel" (which, in any event, is not a proper basis for dismissing it) the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff's action cannot succeed on the basis that he has not pleaded a reasonable cause of action.
Is there no statutory law that could apply in this situation? Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) governs the collection, use and disclosure of personal information in the course of commercial activities. PIPEDA imposes various obligations on organizations dealing with personal information, most notably in the areas of obtaining consent, limiting uses and disclosures, and safeguarding the information collected. PIPEDA has its faults, but it does provide a general framework of rules for the treatment of personal information in commerce. However, is PIPEDA useful to someone whose privacy has been invaded by another person for motives that are not commercial? Not really. This is where the Ontario Court of Appeal has come to the rescue.
In Jones, both parties worked for the Bank of Montreal. Jones was the former spouse of an individual with whom Tsige was involved in a relationship. Jones and Tsige did not work together or even know each other. Jones maintained her personal banking arrangements at that bank and contrary to bank policy and common sense, Tsige accessed Jones’ personal financial records at the bank 174 times over a period of 4 years, ostensibly because of a financial dispute that Tsige was having with Jones’ ex-husband, an assertion that Jones disputed, given the duration and frequency of the prying. Although Tsige apologized and offered financial compensation, Jones was not deterred in her quest for a satisfactory resolution and, although a motions judge dismissed her claim for a summary judgement because the common law in Ontario did not recognize a tort of invasion of privacy, the Court of Appeal found that, on the facts of this case, it was time to make new law and give this plaintiff a remedy.
The court drew upon case law from the US, the Commonwealth and Canada and decided to adopt a US concept known as “intrusion upon seclusion” as the appropriate remedy. This tort seems to be a narrower concept than “invasion of privacy” generally, as it is only one of the four torts delineated by Professor Prosser in his 1960 work Privacy [(1960), 48 Cal. L.R. 383], which the Court of Appeal cited with approval. The four torts described by Prosser were:
- intrusion upon the plaintiff’s seclusion or solitude or into his private affairs;
- public disclosure of embarrassing private facts about the plaintiff;
- publicity which places the plaintiff in a false light in the public eye; and
- appropriation for the defendant’s advantage of the plaintiff’s name or likeness.
Clearly on the facts of this case, the Court of Appeal only needed to consider the first tort. So, what does one need to show in Ontario to maintain an action for “intrusion upon seclusion”? The court in Jones enunciated three specific requirements:
- there has to be an intentional act, and Justice Sharpe included reckless behaviour under that category;
- there has to be an unauthorized invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and
- a reasonable person would consider the intrusion highly offensive causing distress, humiliation or anguish.
Implicitly acknowledging the difficulty in these cases that the plaintiff often cannot show any actual damages, the court also stated at paragraph 71 that “proof of harm to a recognized economic interest is not an element of the cause of action.” However, due to the intangible nature of this interest, the court said that damages “will ordinarily be measured by a modest conventional sum” (Jones, paragraph 71). In Jones, the court awarded $10,000 in damages and stated that the damages for this tort generally should range up to $20,000 to “mark the wrong that has been done” (Jones, paragraph 87).
So, does this case change much? Will it create an avalanche of privacy litigation or is it merely an aberration designed to provide a remedy in a particularly extreme fact situation? Justice Sharpe was careful to limit its application. At paragraph 72 of the judgement he stated:
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will only arise for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
He also noted that this right to privacy is not absolute; there could be competing claims such as freedom of expression or freedom of the press. Many claims for right to privacy will have to be reconciled with and even yield to such competing claims.
In this writer’s opinion, Jones will serve as a reminder to us all that we need to act as responsible adults. Snooping into the private affairs of others is not just bad manners and reprehensible behaviour, it’s now actionable. While the power and ease of technology today may from time to time tempt individuals to look into the affairs of others, the best advice still comes from that sage Ann Landers who used to say: “Make somebody happy today, and mind your own business.”