Part 2: Don’t Creep On Me
Nearly 40 years after its decision in Krouse v Chrysler, the Court of Appeal for Ontario released a landmark decision recognizing a second privacy tort: intrusion upon the plaintiff’s seclusion or into their private affairs (commonly called the tort of intrusion upon seclusion).
This case would go on to be the backdrop for the final two of the four breach of privacy torts.
Jones and Tsige both worked in different branches of the Bank of Montreal (BMO). Though they did not directly know or work with one another, Tsige started a romantic relationship with Jones’s former husband.
Jones maintained her main bank account with BMO. As a bank employee, Tsige had the ability to access any BMO customer’s bank account. Tsige looked into Jones’s banking records at least 174 times over the course of approximately four years. However, it was uncontested that Tsige did not distribute or record the information in any way.
The basis of Jones’s claim against Tsige was that “her privacy interest in her confidential banking information has been irreversibly destroyed.” Jones claimed general damages of $70,000 for invasion of privacy and breach of fiduciary duty and punitive damages of $20,000. The motion judge dismissed both claims, finding that the tort of invasion of privacy did not exist at common law in Ontario. Jones appealed the decision.
The Court of Appeal began by borrowing heavily from American jurisprudence, including the Restatement of Torts (Second), which recognized that when an individual intrudes, physically or otherwise, upon the private affairs of another, that act is subject to liability if the invasion of privacy would be offensive to a reasonable person.
The court also found support for recognizing the tort of intrusion upon seclusion in Charter cases from the Supreme Court of Canada. It reasoned that the common law should be developed in a manner consistent with Charter values.
Tsige argued that it was inappropriate for the court to create a common-law tort to deal with invasions of privacy because there was already comprehensive provincial and federal legislation governing issues of privacy. The Court of Appeal rejected this argument, noting that PIPEDA and the Ontario statutes were concerned with organizations, and not a civil cause of action between private individuals.
Recognizing the Law of Privacy Must Evolve with Technology
With the above background, the Court of Appeal offered two other reasons for why the tort should be recognized:
- First, technological changes had made it routine for individuals’ sensitive personal information to be kept on electronic databases, and the law needed to evolve to respond to the problems this collection of information posed; and
- Second, the court stated “most importantly, we are presented in this case with facts that cry out for a remedy.”
Thus, the tort of intrusion upon seclusion was born, with the court outlining the following elements to be established:
- The defendant’s conduct must be intentional, which includes recklessness;
- The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
- A reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish.
Notably, non-pecuniary general damages were capped at $20,000. The court was also careful to limit the scope of the tort, stating that it will only be made out in cases of deliberate and significant invasions of personal privacy. Furthermore, there would be situations where the protection of one’s privacy will lose out to competing claims or interests such as freedom of expression or freedom of the press.
While the $20,000 cap on general damage awards for intrusion upon seclusion considerably limited the scope of the remedy for plaintiffs, the Court of Appeal’s recognition of the tort and firm affirmation of the value of the right to privacy was significant. Six years later, the court revisited this case and established a remedy for what is commonly known as “revenge porn.”