Ontario Court of Appeal Recognizes Tort of “Invasion of Seclusion”

Posted: January 24th, 2012 | Author: Henry Ren | Filed under: Policy, Privacy | No Comments »

In its recent ruling in Jones v Tsige, the Ontario Court of Appeal formally confirmed the existence of an actionable cause for invasion of seclusion. While the tort of appropriation of personality has long been recognized in Ontario, this appellate decision is the first in the province to give an unequivocal right of action based on breach of privacy. The court surveyed the relevant common law and statutory landscape in Ontario, other provinces, US, and Commonwealth, as well as Charter jurisprudence with respect to the protection of privacy rights. It concluded that “[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”.

The case involved two Bank of Montreal employees who did not know each other but shared a tangled domestic relationship – the defendant Tsige was in a common-law relationship with the ex-husband of the plaintiff Jones. Tsige used unauthorized means to look into the banking records of the plaintiff Jones at least 174 times over a period of four years. In the statement of claim, Jones asserted that her privacy interest in the confidential banking information had been irreversibly destroyed. Jones claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000. The motion judge had granted summary judgment dismissing Jones’ claim for damages on the ground that Ontario does not recognize the tort of breach of privacy and that the expansion of privacy rights should be done via statute.

The Court of Appeal adopted Professor Prosser’s view in his 1960 article “Privacy“, which argued that a four-tort catalogue emerged in common law with respect to protection of privacy interests.

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.

Any right of action that Jones may have was found to fall under Prosser’s first category of tort, namely the invasion of seclusion. This tort was further defined by the Restatement (Second) of Torts. “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.”

A canvassing of Ontario case law showed that despite some inconsistent rulings, the courts are not closed to the idea of allowing an action in tort of intrusion upon privacy. In Somwar v. McDonald’s Restaurants of Canada Ltd, the Superior Court of Justice refused to strike a pleading of invasion of privacy as lacking a valid cause of action. The Court Appeal approvingly cited Stinson J’s dictum from that case, which pointed out that traditional torts were becoming increasingly inadequate in protecting privacy interests in light of rapid technological development.

In rejecting the motion judge’s decision to grant summary judgment against Jones, the court found that the motion judge’s reliance on Euteneier v Lee for the proposition Ontario law excludes all claims for breach of privacy was misplaced. The statement relied on by the motion judge – “[the plaintiff] properly conceded in oral argument before this court that there is no ‘free standing’ right to dignity or privacy under the Charter or at common law” – was not meant to be dispositive regarding the existence of a privacy tort.

The Court of Appeal also drew on Charter jurisprudence to bolster the case for confirming the new tort. “The Supreme Court of Canada has consistently interpreted the Charter’s s. 8 protection against unreasonable search and seizure as protecting the underlying right to privacy”. Furthermore, case law demonstrates that the Supreme Court has recognized the right to informational privacy, a right that is distinct from personal and territorial privacy.

The court refuted the proposition that in light of existing privacy legislation, it is not open to the court to adapt the common law to deal with the issue. Sharpe J.A., writing for the court, saw no intent by the legislature to halt the development of common law in this area. On the contrary, the lack of precise definition in the existing provincial privacy statutes was seen as leaving room for the court to delineate the proclaimed general right of privacy.

To define the elements of the tort, the court adopts the above mentioned definition of intrusion upon seclusion from the Restatement (Second) of Torts. The key features of this cause of action are:

[T]he defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

To prevent opening the floodgate, Sharpe J.A. takes care to emphasize that the objective reasonable person standard is applied to determine those highly offensive intrusions covered by the tort. He also gives examples of private matters that may be the subject of such intrusion: “financial or health records, sexual practices and orientation, employment, diary or private correspondence “. The protection of freedom of expression and freedom of press is yet another limitation on the right to privacy.

In terms of damages, the court holds that proof of actual loss is not an element of the cause of action. Where no pecuniary loss is provable, the loss is then treated as a “symbolic” or “moral” loss. As a guideline, damages “should be modest but sufficient to mark the wrong that has been done”, with a range of up to $20,000. Considerations outlined by the Manitoba Privacy Act are cited as a useful guide. Though the court does not exclude aggravated or punitive damages for exceptional cases, they are not encouraged since “predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified”.

This case was found to fall into the midpoint in terms of damages. It was a highly offensive intrusion upon seclusion resulting in mental distress, but no public humiliation or harm to the plaintiff’s position. The defendant also showed remorse and tried to make amends. Damages in the amount of $10,000 were awarded. No aggravated or punitive damages were assessed due to the absence of of exceptional circumstances.

As is the case with incremental changes in common law, a number of questions remain. For instance, to what extent will the freedom of expression and press be applied to limit the right to privacy? How will the right manifest itself in the employment context, where it may be difficult to identify which activities and correspondences are legitimate privacy interests? While the court has signaled a clear willingness to provide additional privacy protection to keep up with the changing social reality, it remains to be seen how the test from Jones v Tsige is to be applied in subsequent breach of privacy cases.

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