A recent decision of the Ontario Superior Court of Justice, Jones v Tsige[1]  has confirmed that there is no tort of invasion of privacy in Ontario.  While there are at least there are at least four statutes that impose privacy obligations in Ontario[2], they apply only in specific circumstances and/or in respect of specific actors.  In addition, there is the Canadian Charter of Rights and Freedoms, which protects our reasonable expectation of privacy against unreasonable search and seizure by an agent of the state.  Despite the protections these pieces of legislation offer, there is nonetheless a legal vacuum in Ontario in that privacy is not protected - and there is no recourse when a violation occurs – if the perpetrator is not a medical professional, an agent of the state, or a commercial entity.

An individual who has access to another’s personal information, such as a disgruntled neighbour or jealous lover, can “snoop” around in the victim’s personal life, disclose information and, perhaps, even misuse the information, and such conduct would not be actionable in tort.

Given the pervasive use of use of technology, our lives are constantly “recorded” in one way or another:  our mobile phones keep track of our calls and our movements, our banks keep track of all our financial transactions, the GPS devices and black boxes in our cars track where, when and how we travel.  These various recording devices contain, and can reveal, important, sensitive and very private information about us.

In the Jones v Tsige case, the plaintiff, Ms. Jones, sought  damages and an injunction for invasion of privacy and breach of fiduciary duty against the defendant, Ms. Tsige.  Ms. Jones and Ms. Tsige were both employees of BMO, working in different branches of the Bank.  Over the course of four years, Tsige accessed the plaintiff’s personal banking records on 174 occasions, for “personal reasons”. [3] She was disciplined by the Bank, apologized to Jones and promised not to do it again.  The plaintiff sued Tsige alleging that she had committed the tort of invasion of privacy.   The plaintiff’s action was summarily dismissed before trial, on a motion for summary judgment when  Justice Whitaker found that there is no tort of invasion of privacy recognized at common law in Ontario.

After a survey of recent related decisions in Ontario, Justice Whitaker found that the decision of the Ontario Court of Appeal in Euteneier v Lee[4], was binding on him and dispositive on the case before him. Justice Whitaker relied on a passage in the Euteneier decision wherein the Court of Appeal, in obiter, had said that the plaintiff’s counsel “had properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law.”  With respect, Justice Whitaker took that passage out of context.  The Euteneier case involved claims of negligence, assault and Charter violations by the police in conducting a strip search of the plaintiff.  Invasion of privacy was not even pleaded by Euteneier and the Court of Appeal did not elaborate on this cause of action.  It is submitted that a case relating to the duties of the police, where the tort of invasion of privacy was not even pleaded, should not have been seen as dispositive of the issue before the Court in Jones v. Tsige.

Justice Whitaker commented that Ms. Jones could file a complaint with the Office of the Privacy Commissioner, since the perpetrator of the alleged crime was an agent of a bank and banks fall within the ambit of PIPEDA. However, it is clear from the facts that BMO was not responsible for the actions of the defendant, since her conduct in accessing Jones’ banking records was clearly outside the scope of her employment.  As such, Tsige was not acting as an agent of BMO when she accessed the information of the plaintiff.

Regardless of the explanation given by the defendant, it was her curiosity, coupled with the access granted to her by virtue of her position with BMO, that created the perfect setting for the defendant to breach the plaintiff’s privacy by accessing her personal banking records and repeatedly viewing her banking transactions.   With no right of action against Tsige, Jones was left with a wrong but no remedy.

The case might have been decided quite differently if it had occurred in England, as exemplified by the case brought against the News of the World newspaper by Max Mosley (son of the late Sir Oswald Mosley and former head of the Fédération Internationale de l'Automobile (FIA), the governing body for Formula One racing).  In March 2008, the now defunct News of the World published on its front page an article entitled “F1 boss has sick Nazi orgy with 5 hookers.”  Mosley was successful throughout Europe in his claims against the newspaper for invasion of privacy.  He was awarded significant amounts in damages, including GBP 60,000 in damages in England (plus GBP 420,000 in costs), EUR 250,000 in a settlement in Germany, and he has ongoing civil and criminal proceedings in France and Italy regarding the same publication.  It has been suggested in some news accounts that he has also provided financial backing to various claimants suing the News of the World in the “phone hacking” scandal that ultimately brought the paper down.[5]

While the High Court in the UK refused to grant Mosley an injunction (on the basis that the material in issue was no longer private, as it has been picked up by other media and was all over the Internet), the Court did find that Mr. Mosley’s right to privacy had been violated[6].  In the UK, under both The Editors’ Code of Practice, enforced by the Press Complaints Commission, and under the Data Protection Act 1998, there are various provisions regulating the use of private information relating to individuals and, in particular, in respect of “sensitive personal data” which includes information as to a person’s sexual life.  However, there is a “public interest” exemption from the data protection provisions for information used for the purposes of journalism.

In the Mosley case, the Court found that there was no evidence to support the supposed Nazi connotation in the story and, therefore, there was no “public interest” exemption available to the paper. The judge, Eady J., concluded that the articles and the video images on the Internet were a breach of Mosley’s right to privacy and awarded Mosley damages and costs.

Mr. Mosley subsequently brought a case before the European Court of Human Rights alleging that “the United Kingdom failed to impose a legal duty on newspapers to notify the subjects of intended publications in advance to give them an opportunity to prevent such publications by seeking an interim court injunction.”  In a decision in May 2011, a seven-judge panel of the European Court dismissed Mosley’s application, ruling that United Kingdom domestic law was not in conflict with the European Convention on Human Rights and that the media is not required to give prior notice of publication before exposing a person’s private life. The decision was very respectful, however, of Mosley’s ordeal and the harm that had been occasioned to him and very critical of the conduct of the newspaper.[7]  In the end, however, the Court concluded that domestic measures available in Britain, such as the system of press self-regulation and the ability to recover substantial damages for invasion of privacy, were sufficient.  The Court felt it was not necessary, in the circumstances of the case before it, to find a violation of Article 8 due to the absence of an affirmative pre-notification requirement.  The decision of the European Court was upheld on appeal in a decision released September 27, 2011.[8]

How would Mr. Mosley’s case be decided under Canadian law? It would seem that the invasion of privacy would not be recognized at common law in Ontario. Mr. Mosley would probably have to make a complaint to the Office of the Privacy Commissioner, as newspapers are commercial entities and fall within the ambit of PIPEDA. An investigation would ensue and the Commissioner might initiate and action against the newspaper in Federal Court. It would ultimately come down to a balancing of rights: the freedom of the media guaranteed by Section 2(b) of the Charter, versus Mr. Mosley’s right to a private life. As for damages, it is doubtful that Mr. Mosley would recover anything under present Canadian law.

These two decisions differ in many respects, yet address the same human right: the right to live our lives in private, without unwanted “snooping” or recording of what we do, where we go, or how we manage our finances. The applicant in the case before the European Court of Human Rights is a well-known Formula 1 boss and the respondent the now defunct Sunday tabloid newspaper, while in the Ontario case both plaintiff and defendant were private citizens. However hard it may be to put a number on someone’s right to privacy, whether famous and already in the public eye, or a private citizen, we should still have access in Ontario to a remedy when our privacy is violated.

In Jones v Tsige, Justice Whitaker stated that there is no legal vacuum in Ontario with respect to the invasion of privacy “that permits wrongs to go unrighted — requiring judicial intervention.”[9]  However, the facts in the case prove the opposite: there is no statute or other common law action in Ontario that would grant Ms. Jones relief as against the wrongdoer, Ms. Tsige. The judge’s statement is based on the assumption that all defendants in cases of privacy violations are either agents of the state, employees of a commercial entity or of a medical facility.

The question remains whether Ms. Jones’ case would have been decided differently if the defendant was merely a private citizen with unauthorized access to the plaintiff’s bank records and not an employee of a bank. Would Justice Whitaker have been persuaded by Ms. Jones’ case if she had no right to initiate a complaint against BMO under PIPEDA? The end result here is that Ms. Jones cannot find relief in Ontario for the wrong she has suffered. The Ontario Court of Appeal will hear Ms. Jones’ appeal[10] and whether a cause for invasion of privacy exists at common law in Ontario will, hopefully, soon be clarified.