Litigation – Cynthia Davis
The question of whether individuals have a distinct right to bring an action for a breach of privacy in Ontario has long been debated. Until recently, the law in Ontario remained uncertain. In January 2012, the Ontario Court of Appeal confirmed that Ontarians do indeed have the right to protection from the intrusion upon their seclusion and solitude.
It took the case of Jones v. Tsige for the common law to articulate the need for this protection. In this case, Sandra Jones (the Plaintiff) and Winnie Tsige (the Defendant) both worked at different branches of the Bank of Montreal. The two women did not know each other; however, Jones’ ex-husband became romantically involved with Tsige.
Tsige used her workplace computer to access Jones’ personal bank accounts on at least 174 occasions over the course of four years. Tsige was able to obtain personal information including Jones’ banking transactions, date of birth, marital status and address. Tsige did not publish the information elsewhere. She claimed she accessed the information because she wanted to confirm that her boyfriend, Jones’ ex-husband, was making the child support payments he told her he was required to make.
On an appeal from a motion for summary judgment that dismissed the claim, the Court of Appeal recognized that in today’s modern society protection of personal privacy is a necessity, given the accelerated technological changes that have made highly personal information readily accessible.
The Court of Appeal reviewed numerous court decisions from Canadian, British and American courts, as well as articles written by experts in the area, to conclude that the law of Ontario would be sadly deficient if it required the court to send Jones away without a remedy on the facts of this case.
Justice Sharpe, writing for the court, stated, “[r]ecognition of 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.”
A person will be liable for damages for invasion of privacy if he or she intentionally intrudes, physically or otherwise, upon the seclusion of another or the private affairs or concerns of another where that invasion would be found to be highly offensive to a reasonable person, causing distress, humiliation or anguish.
The Court of Appeal also held that proof of economic loss will not be required. Having said that, the court was quick to indicate that this cause of action would be limited in scope. Where no economic loss is established, damages will be symbolic to vindicate the infringement upon a person’s rights. As such, compensation will be a modest conventional sum, up to $20,000.
Further, a claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Liability will attach only for intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively, can be described as highly offensive. Finally, the Court of Appeal made clear that a right to privacy is not absolute and these rights will have to be reconciled with competing claims, such as freedom of expression and freedom of the press.
For Jones, the court limited the damage award to $10,000, given that Tsige had apologized for her conduct and had suffered employment repercussions as well.
Our office will be monitoring this cause of action and the ways in which it is interpreted and applied to different facts.
* * This article is intended only to inform or educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
Author: Cynthia Davis is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Cynthia may be reached at (519) 741-8010 or <firstname.lastname@example.org>.