Introduction

In Jones v. Tsige, 2012 ONCA 32, the Court of Appeal for Ontario issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by American and Australian courts.  

Facts

Jones and Tsige worked at separate branches of a Canadian bank. While the two parties had no personal contact, Tsige formed a relationship with Jones’ former husband. Over the course of four years, Tsige accessed Jones’ personal bank account information at least 174 times, for the alleged purpose of confirming whether Jones’ former husband was paying child support to Jones. Jones brought a claim for invasion of privacy and breach of fiduciary duty, and moved for summary judgment. Tsige brought a crossmotion for summary judgment to dismiss the action on the basis that Ontario law did not recognize a tort of invasion of privacy.  

Defining the tort of intrusion upon seclusion

After reviewing domestic and international common law and Canadian privacy and human rights legislation, the Court of Appeal for Ontario held that it was appropriate to confirm the existence of a right of action for invasion of privacy, or “intrusion upon seclusion”, and noted that the common law should evolve to respond to issues arising from the routine collection and aggregation of highly personal information that is readily accessible in electronic form.  

The Court of Appeal for Ontario defined the elements of the tort of intrusion upon seclusion by reference to the formulation set out in the Restatement (Second) of Torts (2010). To prove intrusion upon seclusion, Ontario plaintiffs must show that:  

  1. The defendant’s conduct was intentional or reckless;
  2. The defendant 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.  

Intrusion upon seclusion is actionable even if there is no publication or other use of the information collected, and it is not necessary for the plaintiff to suffer pecuniary losses as a result of the invasion.  

Other Jurisdictions  

In reaching its decision, the Court of Appeal for Ontario reviewed privacy‐based torts that have recently developed in other common law jurisdictions. The test formulated by most American states for intrusion upon seclusion also follows the Restatement (Second) of Torts (2010), and requires a plaintiff to show:  

  1. There was an unauthorized intrusion.Dissemination or publication of information is not a requirement.[1] The focus of the court is on the type of interest involved and not the place where the invasion occurs.[2]
  2. The intrusion was highly offensive to the reasonable person. Factors in determining whether an action is highly offensive include the degree of intrusion, the context, conduct and circumstances of the intrusion, the tortfeasor’s motives and objectives and the expectations of those whose privacy is invaded.
  3. The matter intruded upon was private. The plaintiff must demonstrate a subjective expectation of privacy, and show that such expectation is objectively reasonable.[3]
  4. The intrusion caused anguish and suffering. Generally, this element is presumed once the first three elements have been established.  

In Lenah Game Meats Pty Ltd v. Australian Broadcasting Corp.,[4] the Australian High Court left the door open to the recognition of a common law right to privacy despite earlier authority to the contrary. Lower Australian courts have since held that the tort is part of Australian common law, and have defined the elements of the tort by reference to the formulation set out in the Restatement (Second) of Torts (2010).[5]  

The House of Lords reformulated the tort of breach of confidence to create a tort of misuse of private information, which it recognized as being necessary to protect “human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of people”. [6] The reformulated tort has been held to embrace claims to protect privacy interests that fall within the “intrusion upon seclusion” category.[7]

The New Zealand Court of Appeal has also recognized a distinct common law tort of breach of privacy, although the information must be publicized to meet the elements of the tort.[8]  

Damages

The Court of Appeal for Ontario thoughtfully assessed its approach to damages. It held that where a plaintiff has not suffered pecuniary loss, damages should be capped at $20,000 to plaintiffs. Factors that assist in determining the appropriate award of damages are:

  1. The nature, incidence and occasion of the defendant’s wrongful act;
  2. The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
  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.  

Awards of aggravated and punitive damages should be reserved for “exceptional cases” only.  

Comment  

The Court left the door open to the recognition of two other privacy‐based torts: (i) public disclosure of embarrassing private facts about the plaintiff; and (ii) publicity which places the plaintiff in a false light in the public eye. Ontario law already recognizes a tort for appropriation of personality.  

The new tort permits a monetary award even where a plaintiff has not suffered pecuniary damage. By formulating the tort in this manner, the Court of Appeal for Ontario has provided plaintiffs, including members of potential class action suits, with a remedy for invasion of privacy where before there were no remedies at all, or limited statutory remedies.  

The Court of Appeal for Ontario was careful, however, to limit the application of claims for intrusion upon seclusion to deliberate and significant invasions of personal privacy such as intrusions into financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively, could be described as highly offensive. It also emphasized that rights to privacy would be balanced against claims for protection of freedom of expression and freedom of the press.  

Thus, the evolution of the tort of intrusion upon seclusion could have a significant impact on the number of individual claims and class action suits that are brought and the corresponding awards made under those claims. It is unclear what effect the new tort will have on the media and the freedom of the press.