In the case of Jones v. Tsige, 2012 ONCA 32 the Ontario Court of Appeal established a new tort for invasion of personal privacy which it called the tort of “Intrusion upon Seclusion.”

Facts

In this case both Jones and Tsige worked at the Bank of Montreal (BMO) but they worked at different branches. Tsige was in a common-law relationship with the ex-husband of Jones.

For approximately four years Tsige used her workplace computer to access Jones’ personal BMO bank accounts. Jones’ personal BMO bank accounts were accessed by Tsige a minimum of 174 times. The information that Tsige saw were transaction details and other personal information regarding birth, marital status, and address.

Tsige did not publish, distribute or record the information she viewed.

Jones became suspicious that Tsige was accessing her account and complained to BMO. Tsige admitted that she had looked at Jones’ information, that she had no legitimate reason for doing so, and that it was contrary to BMO policy to have done so. Tsige explained, and maintained, that she was involved in a financial dispute with Jones’ ex-husband and indicated that she accessed the accounts to confirm if child support was indeed being paid. Jones did not accept the explanation and indicated that it was inconsistent with the timing and frequency of Tsige’s conduct. Tsige apologized.

In Jones’ Statement of Claim she alleged that her privacy interest had been breached and asked for $70,000.00 in general damages plus $20,000.00 in punitive and/or exemplary damages. Jones applied for summary judgment and Tsige brought a cross-application for summary judgment to dismiss the application.

On the summary judgment application, the Judge referred to an Ontario Court of Appeal decision named Euteneier v. Lee which he stated was binding on him. In that case, Cronk J.A. had held that there was no “free-standing right to dignity or privacy under the Charter or at common law”. Justice Cronk had made this finding when considering whether the trial judge had accurately described the plaintiff’s privacy and dignity interests. The Euteneier case dealt with a lawsuit brought by a woman whose clothes were removed by police following a suicide attempt while she was being detained in a holding cell.

The judge in deciding the summary judgment application stated that the existence of privacy rights should be dealt with by statute rather than by common law. He went on to grant summary judgment to Tsige and awarded costs of $35,000.00 against Jones since she had pursued the litigation aggressively. This decision was appealed to the Court of Appeal. The Court of Appeal overturned the motion’s judge and granted summary judgment in favour of Jones.

The Decision

Certain aspects of privacy have long been protected by causes of action such as defamation, breach of copyright, nuisance, and breach of confidence. That said, as a matter of law in Canada it has been uncertain as to whether there was a cause of action for breach of privacy.

The Ontario Court of Appeal quoted a Professor named Prosser extensively and followed his line of reasoning as set out in an article from 1960 with respect to there being four torts relating to personal privacy. They are:

  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs;
  2. Public disclosure of embarrassing private facts about the plaintiff;
  3. Publicity which places the plaintiff in a false light in the public eye; and
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The Court of Appeal noted that American jurisprudence has accepted Professor Prosser’s classification. In fact, in the United States Professor Prosser’s classification was adopted in a publication known as the Restatement (Second) of Torts (2010).

The Court of Appeal went on to hold that the relevant tort in the present case was the first “Prosser” tort: “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.”

The intrusion upon seclusion tort is described as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The Court of Appeal made clear that in this new tort “non-physical forms of investigation or examination into private concerns may be actionable”. They also made clear that the scope includes opening private and personal mail or examining a private bank account “even though there is no publication or other use of any kind” of the information viewed and obtained. The Court of Appeal went on to accept all four of the Prosser categories of tort and created a new tort based upon the first, using Professor Prosser’s definition to define the scope of the cause of action.

It is also germane to note that Tsige had argued that it was not open to the Court of Appeal to adapt the common law to address the invasion of privacy on the ground that privacy was already subject to legislation in Ontario and Canada. Tsige submitted that to adapt the common law would interfere with carefully crafted statutory regimes and, further, that the government should be expanding the law in this area, not judges.

The Ontario Court of Appeal considered the Personal Information Protection and Electronic Documents Act, 2000, S.C. 2000, c.5 (PIPEDA) and observed that it deals with “organizations” and does not address the existence of a civil cause of action at common law.

The Court provided three compelling reasons as to why PIPEDA did not speak to the existence of a cause of action at common law and, in addition, why it was unfair for Jones to be left without a civil cause of action and remedy:

  1. Jones would be forced to file a complaint against her employer rather than Tsige, the wrongdoer;
  2. Tsige was acting as a rogue employee contrary to the BMO policy; and
  3. PIPEDA remedies do not include damages. This would mean that Jones would have nothing to gain from approaching BMO with regard to Tsige’s conduct.

In Ontario the existing provincial legislation did not address in any way (that was similar to the tort of intrusion upon seclusion) the private rights of action between individuals.

The Ontario Court of Appeal did an analysis that included other provinces and commented that while Saskatchewan, British Columbia, and Newfoundland had statutorily created torts of invasion of privacy none of the provincial acts that they reviewed provided a precise definition of what actually constituted an invasion of privacy. The Court also stated that the nature of the various provincial acts did not indicate that it was faced with a situation where policy choices and decisions were best left to legislators as opposed to judges.

The Court of Appeal basically adopted the elements of Professor Prosser as elaborated in the Restatement publication. The key elements of this new tort are as follows:

  1. The defendant’s conduct must be intentional, or reckless;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The Court made clear that proof of harm to a recognized economic interest is not an element of the cause of action.

It is clear that a claim for intrusion upon seclusion will only arise for “deliberate and significant invasions of personal privacy.” Claims from people who are sensitive or unusually concerned about their privacy will not be successful. In order for a claim for intrusion upon seclusion to succeed it will likely have to relate to matters such as sexual practices, sexual orientation, financial records, health records, employment, personal diaries or private correspondence that, viewed objectively by the reasonable person standard, can be described as highly offensive.

Finally, the Court of Appeal readily acknowledged that claims for intrusion upon seclusion may give rise to competing claims such as the protection of freedom of expression and freedom of the press.

With respect to damages, the Court held that damages fall into the category of “symbolic” damages or “moral” damages and that a conventional range of damages is necessary to maintain predictability, fairness, and consistency. The Court then set a number of guidelines with respect to determining quantum of damages:

  1. The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
  2. The nature, incidence and occasion of the defendant’s wrongful acts;
  3. Any relationship, whether domestic or otherwise, between the parties;
  4. Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
  5. The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

The Court of Appeal then held that the range of damages was fixed at the top end at $20,000.00 and that aggravated and punitive damages were neither encouraged nor excluded. In the case at hand, the Court determined that $10,000.00 was the appropriate amount to award to Jones. Jones was not awarded any aggravated or punitive compensation.