Jones v. Tsige: How a Bizarre Love Triangle Inspired an Evolution in Privacy Law

17 février 2012

( Disponible en anglais seulement )

Jones v. Tsige, a recent case from the Ontario Court of Appeal, represents the first appellate level decision in Ontario to recognize the tort of “intrusion upon seclusion”, a remedy for invasion of privacy.  And like all good disputes, it began with a love affair.

The defendant, Winnie Tsige, was in a common law relationship with the former husband of the plaintiff, Sandra Jones. Both worked for the Bank of Montreal (“BMO”). They had never met.

Over a period of 4 years, Tsige used her workplace computer to access the personal accounts of Jones 174 times. According to Tsige, this cyber snooping was motivated by a financial dispute with her partner. Tsige was seeking to confirm whether her partner was making support payments to Jones.

When Jones became suspicious, BMO confronted Tsige who admitted to the allegations. BMO disciplined Tsige for violations of its Code of Business Conduct and Ethics by suspending Tsige for 1 week without pay and denying her a bonus.

Jones pursued a claim against Tsige for breach of fiduciary duty, invasion of privacy and punitive and exemplary damages. All her claims were dismissed on summary motion. The motions judge held that no free standing right to privacy existed under the Canadian Charter of Rights and Freedoms. Furthermore, given that there exists extensive privacy legislation, it would be inappropriate to expand privacy rights through the common law.

Jones appealed to the Ontario Court of Appeal which, in a landmark decision, recognized the tort of invasion of privacy and overturned the decision of the motions judge.

Speaking for the court, Justice Sharpe went to great lengths to explain that the tort of invasion of privacy is not new. It has been recognized in other jurisdictions including the United States, the United Kingdom, Australia and New Zealand. In Canada, personal privacy has been repeatedly granted constitutional protection. The trend of trial level and summary motion judges in Ontario and across Canada has been to leave open the possibility of invasion of privacy as anindependent cause of action.

Nevertheless, cautious of a proliferation of claims, he was careful to delineate the scope of the cause of action: defining its key elements, setting out its limitations, and giving some guidance as to damages.

Justice Sharpe adopted the Americandefinition of “intrusion upon seclusion” as found in the Restatement (Second) of Torts (2010). The key elements are:

  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.

Justice Sharpe expressly stated that proof of harm to a recognized economic interest is not an element of the cause of action.

The Court was careful to put limitations upon the scope and applicability of this novel tort. It will apply only in cases of deliberate and significant invasions of personal privacy. The requirement that the invasion be regarded as highly offensive by reasonable persons excludes claims from individuals who are sensitive or unusually concerned about their privacy. It is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that will meet this high bar. Finally, Justice Sharpe noted that the right to privacy is not absolute: claims for intrusion into seclusion must be weighed against competing interests such as the protection of freedom of expression and freedom of the press.

With respect to damages, Justice Sharpe suggested that the upper range for damages in the most serious cases should be $20,000. Determination of the quantum of damages will require consideration of the following factors:

  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.

In this case, the Court took into account aggravating factors such as the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Mitigating factors included the facts that Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and that Tsige had apologized for her misconduct. Weighing these factors, the Court fixed damages in the amount of $10,000.

The decision contemplates three additional privacy related torts including: 1) public disclosure of embarrassing private facts; 2) publicity which places the plaintiff in a false light in the public eye; and 3) appropriation of the plaintiff’s name and likeness. While this case makes no definitive statements with respect to these additional torts, privacy law in Ontario appears poised for rapid evolution in the coming years.

Miller Thomson will keep you apprised of further developments in this area.

Case Citation: Jones v. Tsige, 2012 ONCA 32

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