Co-authored by Joe Thorne and James Tumbridge


Summary:

The Ontario Court of Appeal in Jones v. Tsige1. has confirmed Ontario law recognises a right to bring a civil action for damages for the invasion of privacy:  There is now a new cause of action in Ontario for ‘intrusion upon seclusion.’  The decision creates a remedy for invasion of personal privacy and also leaves open the possibility that three other causes of action for invasion of privacy may be recognised in Ontario in the near future.

Background

Sandra Jones and Winnie Tsige were co-workers at a bank.  Jones and Tsige did not know each other personally, but Tsige had begun a relationship with Jones’ former husband. Jones was also a customer of the bank. In her position as a bank employee, Tsige accessed Jones’ banking records at least 174 times over four years. 

In July 2009, Jones discovered Tsige’s actions. When confronted, Tsige admitted she had looked at Jones’ personal information, had no legitimate reason for doing so, and understood it was contrary to both the bank’s policies and her own professional responsibility. Tsige apologised and was disciplined by the bank.

Despite the apology, Jones commenced an action against Tsige, asserting that her privacy interest in her confidential financial and personal information had been violated. Jones claimed $70,000.00 for invasion of privacy and breach of fiduciary duty as well as $20,000.00 in punitive damages.

In 2010, Jones moved for summary judgment on her claim. Tsige brought a cross-motion for summary judgment dismissing the action. The motion judge concluded that the Court of Appeal in Euteneier v. Lee2 had conclusively determined that a tort of invasion of privacy did not exist in Ontario when it stated that “there is no ‘free standing’ right to dignity or privacy under the Canadian Charter of Rights and Freedoms (“Charter”) or at common law.” The motion judge further held that given the existence of provincial privacy legislation, any further expansion of privacy rights should be dealt with by statute. The motion judge granted Tsige’s cross-motion for summary judgment dismissing Jones’ claim.

The Court of Appeal Decision

Jones appealed the dismissal of her claim. The central issue before the Court of Appeal was whether or not Ontario law recognises a cause of action in tort for invasion of privacy.

Justice Sharpe noted that the question of whether the common law should recognise a cause of action in tort for invasion of privacy has been debated for over a hundred years. In a 1960s article published in the Harvard Law Review, William Prosser wrote that American jurisprudence revealed that the common law already implicitly recognised four distinct torts that protected different privacy interests. The four categories identified by Prosser were:

  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.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.3

Justice Sharpe held that if Jones had a cause of action, it would fall into Prosser’s first category of ‘intrusion upon seclusion.’ Justice Sharpe explicitly accepted Prosser’s insight that the general right to privacy embraces four distinct torts, but restricted his judgment to the cause of action in the first category.

Justice Sharpe concluded that the trend in Ontario’s lower courts has been to leave open the possibility that a cause of action for ‘intrusion upon seclusion’ exists. While the appellate courts of other Canadian provinces have not definitively established a common law right of action for ‘intrusion upon seclusion,’ lower level court decisions in other provinces supported the concept.4 Justice Sharpe held that the Court of Appeal in Euteneier had not excluded any and all claims for breach of privacy interests. The plaintiff had not advanced any tortious claim based on breach of a privacy interest and there had been no argument on that point.

Justice Sharpe found that a review of Charter jurisprudence supported the conclusion that Jones was entitled to a right to privacy. In particular, in R. v. Tessling, Justice Binnie had described an individual’s right to keep information about themselves private as a distinct privacy interest known as ‘informational privacy.’5 Further, in the decisions of Hill v. Church of Scientology of Toronto6 and R. v. O’Connor7 the Supreme Court of Canada had identified privacy as a right that had been accorded constitutional protection. Justice Sharpe concluded that the principle that the common law ought develop in a manner consistent with Charter values supported the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion.

Tsige advanced the argument that the Court could not adapt the common law because privacy is already subject to carefully crafted legislation that reflects the economic and policy choices of legislators. Justice Sharpe disagreed, holding that while provincial legislation has proclaimed a ‘sweeping right to privacy,’ it has been left to the courts to precisely define the contours of that right and what constitutes a breach of that right.

The Cause of Action Defined

Justice Sharpe concluded that it is appropriate to confirm the existence of a cause of action for ‘intrusion upon seclusion’ in Ontario given the jurisprudence and the pace of technological change. In particular, the internet and digital technology have led to enormous changes in the handling of personal information and routinely-kept electronic databases render financial and other sensitive information vulnerable. Justice Sharpe stated that the common law is meant to evolve to respond to such changes and to address such problems.

Justice Sharpe defined the cause of action for ‘intrusion upon seclusion’ as:

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.

To establish the tort in Ontario, a plaintiff must show that the defendant’s conduct:

  1. was intentional (including reckless conduct);
  2. constitutes an invasion of the plaintiff’s private affairs or concerns without lawful justification; and
  3. that a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

Justice Sharpe explained that the elements of this new cause of action are designed to exclude claims from individuals who are sensitive or unusually concerned about their privacy. Only intrusions ‘into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence’ are matters that could be described as highly offensive. In addition, Justice Sharpe clarified that no right to privacy is absolute, and the exercise of competing rights such as freedom of expression will have to be balanced and reconciled.

It is notable that Justice Sharpe did not include a requirement that the plaintiff provide proof of harm to a recognised economic interest as an element of the cause of action. Instead, where the plaintiff has suffered no provable economic loss, damages are awarded on a ‘symbolic’ basis, intended to vindicate rights or symbolise recognition of their infringement. Justice Sharpe went further, fixing the range of damages available for infringement at ‘up to $20,000,’ and noting that damages for ‘intrusion upon seclusion’ should be modest, but sufficient to mark the wrong that has been done. Justice Sharpe did not preclude the possibility of aggravated or punitive damages but cautioned that absent truly exceptional circumstances, damages should be kept below $20,000 to ensure predictability and consistency in damage awards.8

Justice Sharpe concluded that Tsige had deliberately violated Jones’ privacy over a prolonged period of time. Any person in Jones’ position would have been profoundly disturbed by the significant intrusion into her personal information. Although Tsige had been disciplined by her employer, the discipline did not respond directly to the wrong done to Jones. Justice Sharpe determined that an appropriate award of damages was $10,000.00.

Analysis

Jones has clearly broken new ground in Ontario, confirming the existence of a new, and significant, cause of action. The decision reflects the importance of individual privacy rights and growing concerns that personal information is not always sufficiently safeguarded by those with access to it. Unlike Ontario’s existing statutory regime, this new private tort provides a true remedy to those who have been aggrieved.

In addition, Justice Sharpe’s explicit acceptance of Prosser’s four categories leaves open the possibility that a court, faced with the appropriate fact situation, will further expand the invasion of privacy torts in Ontario.

It will be interesting to see whether the tort of ‘intrusion upon seclusion’ develops as a free standing cause of action or is combined by plaintiffs with other potentially more lucrative causes of action. Justice Sharpe’s decision to cap the range of damages in cases where the plaintiff is unable to establish pecuniary loss would appear to relegate strict intrusion cases to the jurisdiction of Ontario’s Small Claims Court. The Small Claims Court is designed to provide relatively expedient and affordable access to justice; it will be interesting to see if large institutional defendants experience a proliferation of claims as a consequence.

Jones has implications for all organisations operating in Ontario that store and collect personal information about their customers, employees and clients. Although, in this case, Tsige’s employer was not a named party to the proceeding, in future actions a plaintiff may attempt to hold an employer vicariously liable for an intrusion by an employee or agent during the course of their employment. In addition, while the damages ultimately awarded in Jones were low and were fixed in a relatively modest range, the decision may open the door to the possibility of class proceedings in circumstances where a representative plaintiff alleges that an organisations’ policy of collecting, reviewing, or using sensitive personal information is without lawful justification. 

 

1. 2012 ONCA 32 [Jones].
2. (2005), 77 O.R. (3d) 621 (C.A.) [Euteneier].
3. Ibid at para 18, citing William L. Prosser, “Privacy” (1960), 48 Cal. L.Rev. 383 at 389.
4. Ibid at para 33, citing Motherwell v. Motherwell (1976), 73 D.LR. (3d) 62 (Alta. S.C. App. Div.) and Dyne Holdings Ltd. v. Royal Insurance Co. of Canada (1996), 135 D.LR. (4th) 142, leave to appeal to S.C.C refused, [1996] S.C.C.A. No. 344.
5. 2004 SCC 67, [2004] 3 S.C.R. 432, at para 23.
6. [1995] 2 S.C.R. 1130.
7. [1995] 4 S.C.R. 411.
8. Jones at para 88.