Canada - Ontario Court awards damages for tort of “intrusion upon seclusion”
In its decision in McIntosh v. Legal Aid of Ontario (“McIntosh”) in late 2014, the Ontario Superior Court (“Court”) considered the tort of invasion of privacy, known as “intrusion upon seclusion”. The McIntosh decision provides guidance on how Canadian courts will assess cases involving this relatively new cause of action and quantify the appropriate damages.
The Ontario Court of Appeal (“ONCA”) established a right to bring a civil action for damages for the invasion of personal privacy, termed a tort of “intrusion upon seclusion”, in its decision in Jones v. Tsige in 2012. The ONCA considered that the recent and rapid proliferation of technology has made an intentional invasion of privacy easier than ever, and poses a novel threat to privacy that should be recognized as a valid cause of action in the most clearly offensive instances. According to the ONCA, the following elements are required to establish a successful claim:
● The conduct must be intentional;
● There must be an “invasion” without lawful jurisdiction of a person’s private affairs or concerns; and
● A reasonable person would consider the event as highly offensive causing anguish, humiliation or distress.
In McIntosh, the plaintiff claimed that the defendant (the girlfriend of the plaintiff's ex-boyfriend) had used her position as an employee of Legal Aid Ontario to improperly access the plaintiff's personal information. The defendant’s review of this information had revealed that the plaintiff was involved in a Children’s Aid file. The defendant then contacted the plaintiff and threatened to use the information in an effort to have the plaintiff’s children removed from her care. In response, the plaintiff filed a complaint with Legal Aid Ontario and the Privacy Commissioner of Ontario. Both entities conducted an investigation and found that a breach of privacy had occurred. The plaintiff also sought special damages for lost wages and tuition fees, claiming that the ordeal led to severe emotional and mental anguish, personal difficulty, and the loss of employment. In support of this claim, the plaintiff produced medical documentation that described a history of anxiety and depression, and a letter from an employer that dismissed the plaintiff after a few months of employment for being a “poor fit.”
In its analysis, the Court concluded that a breach of privacy had occurred, and that the breach of privacy rights is sufficient to establish liability based upon the tort of intrusion upon seclusion. However, the Court remained unconvinced that the plaintiff's claim for wage loss and the cost of tuition could be connected to this breach of privacy. The Court found that the evidence presented did not form a strong enough connection between the claimed injuries and the breach of privacy, although if it had, the Court signalled a willingness to consider these damages as well. On this basis, the Court found that the plaintiff had endured a minor “irritation” as opposed to “devastation”, and awarded the plaintiff damages of C$7,500 for the breach of privacy (and partial costs), disallowing the remainder of the plaintiff's claim.
This case indicates that Canadian courts will treat an intentional breach of privacy as an actionable claim that may lead to a damage award itself, in addition to any other damages, if substantiated by the evidence presented, that resulted from the breach.
For more information, please contact Theo Ling, Arlan Gates or Eva Warden.