New Tort of Invasion of Privacy

January 30, 2012 | Nadya Tymochenko

On January 20, 2012 the Ontario Court of Appeal released a unanimous decision creating the tort of invasion of privacy in Ontario.

The Court of Appeal is apparently the first appellate court in Canada to definitively establish a common law right of action for intrusion upon seclusion, a form of invasion of privacy.

In coming to its decision, the Court of Appeal reviewed the history of litigation regarding the privacy of individuals as well as legal writing.  The Court of Appeal emphasized the importance of privacy to individuals when it stated that “Charter jurisprudence identifies privacy was worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state.”

Four separate types of invasion of privacy were identified by the Court of Appeal based on legal writing and experience in the United States. 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.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The facts of the case before the Court of Appeal related to the tort of intrusion upon seclusion.  In its analysis of the state of the case law in Ontario, the Court of Appeal identified that “Ontario has already accepted the existence of a tort claim for appropriation of personality and, at the very least, remains open to the proposition that a tort action will lie for an intrusion upon seclusion.”

The Court of Appeal found that it was time to recognize a tort for an intrusion upon seclusion and provided the following factors of the tort:

  1. The conduct must be intentional or reckless;
  2. The conduct must be an invasion, without lawful justification, of private of affairs; and
  3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The Court of Appeal stressed that there need not be harm to a recognized economic interest for an award of damages, and that damages would ordinarily be modest.  The Court stated that it would fix the range at up to $20,000.00. Direction was provided by the Court regarding what should be considered when identifying the appropriate award of damages.  The following factors were identified:

  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.

Potential competing claims, such as freedom of expression and freedom of the press, were identified by the Court of Appeal as likely to be argued in some cases.  But, because there were no competing claims at issue in the case before the Court, the Court’s comments were limited.  The Court stated that “no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.”

Damages in the amount of $10,000.00 were awarded in the case before the Court of Appeal.

How the decision of the Court of Appeal might impact school communities is not yet known.  The decision might impact the information collected, used and disclosed by school Boards about employees, volunteers and the employees of service providers.  Moreover, as most school administrators would recognize, parents are becoming more sensitive to the issue of privacy and schools are awash with personal information.

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