ONCA Recognizes Invasion of Privacy Tort

January 18, 2012

The Ontario Court of Appeal has released its decision in Jones v. Tsige, finding that Ontario law does recognize a right to bring a civil action for damages for the invasion of personal privacy.

In July 2009, the appellant, Sandra Jones, discovered that the respondent, Winnie Tsige, had been surreptitiously looking at Jones’ banking records. Tsige and Jones did not know each other despite the fact that they both worked for the same bank and Tsige had formed a common-law relationship with Jones’ former husband. As a bank employee, Tsige had full access to Jones’ banking information and, contrary to the bank’s policy, looked into Jones’ banking records at least 174 times over a period of four years.

Jones sued Tsige, claiming damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000. A Superior Court judge dismissed the claims, finding among other things that Ontario law does not recognize a cause of action for invasion of privacy.

After reviewing an abundance of privacy law from Canada, the US, and other jurisdictions, the Court of Appeal found that it was appropriate to confirm the existence of a right of action for “intrusion upon seclusion”. The court found that privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. The court held that recognizing such a cause of action “would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”

The court adopted as the elements of the action for “intrusion upon seclusion” the formulation found in Restatement (Second) of Torts (2010):

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 held that the following were key features of the cause of action:

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

With respect to damages, the court held that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. The court fixed the range at up to $20,000 and awarded Jones $10,000.

Jones v. Tsige 2012 ONCA 32

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