LEGALLYSPEAKING
with Ian L. Wachowicz
I
Ontario Court of Appeal
recognizes your right to sue for
invasion of privacy
n the case of Jones v. Tsige,
2012 ONCA 32, the Ontario Court of Appeal recognized the existence of a new cause of action in civil courts for “intrusion upon seclusion”, or in more common words, for invasion of privacy. In July 2009, Sandra Jones discovered that 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. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address. Tsige did not publish, distribute or record the information in any way. Tsige was eventually confronted by the bank once her activities were discovered. She explained that she was involved in a financial dispute with Jones’ former husband and accessed the accounts to confirm whether he was paying child support to Jones. Jones did not accept that explanation as she said it was inconsistent with the timing and frequency of Tsige’s snooping. Tsige apologized for her actions and insisted that she has ceased looking at Jones’ banking information. Tsige was contrite and embarrassed by her actions. The bank disciplined Tsige by suspending her for one week without pay and denying her a bonus. Jones sued in civil court in Ontario for damages, but a judge of the court summarily dismissed the action, as, in the trial judge’s view, the statement of claim did not disclose a cause of action. Jones appealed to the Ontario Court of Appeal.
THE DECISION
The Court of Appeal acknowledged that the question of whether a common law cause of action for invasion of privacy exists has been disputed for the “past one hundred and twenty years” and set out to settle the debate. After a EDMONTONIANS SPRING 2012
thorough review of Canadian common law and statutes, as well as U.S. and Commonwealth jurisprudence, the Court held that it was appropriate “to confirm the existence of a right of action for intrusion upon seclusion” or common law action for breach of privacy. The Court put forward three rationales in support of its decision. Firstly, the case law supports the existence of such a cause of action. Secondly, changes in technology have brought about an “enormous change in the way we communicate and in our capacity to capture, store and retrieve information.” Finally, the Court felt that they were presented “with facts that cry out for a remedy.”
ELEMENTS OF THE CAUSE OF ACTION
The Court adopted three elements for this cause of action: 1. The defendant’s conduct must be intentional and this includes recklessness; 2. The invasion must be of the plaintiffs’ private affairs or concerns and without lawful justification; and 3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish, but proof of harm to a recognized interest is not an element of the cause of action.
LIMITATIONS
The Court pointed out some limitations to this action: 1. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded. 2. Only intrusions into “financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.” 3. Privacy claims may give rise to competing claims such as freedom of expression and freedom of the press. In such cases, the protection of privacy “will have to be reconciled with, and even yield to, such competing claims.”
DAMAGES
The Court held that “proof of actual loss is not an element of the cause of action for intrusion upon seclusion” and that where there was no actual loss the damages must be “symbolic” or “moral” damages. Aggravated or punitive damages may be appropriate in exceptional cases. Regarding quantum, the Court established a cap of $20,000 for general damages and adopted the following guiding factors from the Manitoba Privacy Act when assessing damages: • the nature, incidence and occasion of the defendant’s wrongful act; • the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position; • any relationship, whether domestic or otherwise, between the parties; • any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and • the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant. The Court considered that the case before it fell in the middle of the range and assessed damages at $10,000.
IMPACT OF THIS DECISION
This case, absent leave to appeal to the Supreme Court of Canada, likely determines that a common law claim for intrusion upon seclusion or the tort of breach of privacy exists and is actionable. Here in Alberta, there is a chance that the Alberta Court of Appeal would not follow this decision. However, most trial judges, even in Alberta, would probably not strike out a statement of claim for invasion of privacy, as a result of this Ontario decision. This decision could open large organizations that possess confidential personal information up to the spectre of class action suits for privacy invasion. Such organizations would do well to ensure that their privacy policies are up-todate, effective, and in compliance with current legislation. √ Ian L. Wachowicz is with Parlee McLaws LLP. E-mail iwachowicz@parlee.com; phone 780.423.8655. www.parlee.com
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