The Ontario Court of Appeal is the first appellant court to recognize a civil right of action for intrusion upon seclusion for invasion of personal privacy.
Until now, there has been no definitive statement from an appellate court on the issue of whether there is a common law right of action corresponding to the intrusion on seclusion. The trend in Ontario case law was to leave open the possibility that such a cause of action does exist.
In this case, the plaintiff Jones and the defendant Tsige worked at different branches of the Bank of Montreal. Tsige had formed a common-law relationship with Jones’ former husband. Jones discovered that Tsige had been surreptitiously looking at Jones’ banking records, contrary to the bank’s policy, 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. Jones’ action for breach of privacy against Tsige was dismissed by the motions judge on a motion for summary judgment. However, the Court of Appeal allowed the action and awarded Jones damages in the amount of $10,000.
The Court noted that the Charter of Rights jurisprudence identified privacy as being worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state. While the Charter did not apply to common law disputes between private individuals, the Court ruled that the explicit recognition of a right to privacy and the principle that the common law should be developed in a manner consistent with Charter values, supported the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion.
The Court rejected the view it was not open for the courts to adapt the common law to deal with the invasion of privacy given the extensive legislative framework addressing the issue of privacy both federally and provincially and that any expansion of the law relating to the protection of privacy should be left to Parliament and the legislature. The Court ruled that the existing legislation did not provide a sound basis to refuse to recognize the emerging tort of intrusion upon seclusion and deny the plaintiff a remedy. While four common law provinces (BC, Manitoba, Saskatchewan and Newfoundland) and Quebec currently have a statutorily created tort of invasion of privacy , the Court stated that these Acts established a limited right of action, and the plaintiff’s privacy entitlement was circumscribed by what is “reasonable in the circumstances”. The Court concluded that the existing provincial legislation indicated that the legislatures, when they had acted, simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.
The Court examined the jurisprudence in other jurisdictions outside Canada and noted that most American states had recognized a right of action for invasion of privacy rights. In England, privacy was expressly protected by the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the House of Lords in Campbell v. MGN Ltd. stated the tort of breach of confidence had evolved into a form of privacy protection – described by the court as a tort of misuse of private information about one’s private life and the right to the esteem and respect of people. A similar common law right to privacy had been recognized by the courts in Australia and New Zealand.
The Court formulated the elements for the civil action in Ontario based on the American formulation as, “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.”
The Court added that the defendant’s conduct must be intentional (or reckless); the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. With respect to damages, the court stated that given the intangible nature of the interest protected, damages should be measured by a modest conventional sum up to $20,000.
While this decision is binding in Ontario, it is likely to be highly persuasive in other provinces. Although the damages awarded are modest, the effect of this decision is likely to ensure that individuals who may be exposed to such liability for invasive conduct may be more cautious once they are reminded of their exposure for personal liability. This will likely assist employers who require employees to comply with internal privacy policies. Where a person has intentionally or recklessly intruded upon the seclusion rights of many individuals, for example by improperly accessing personal information within corporate websites, such persons could face significant liability and potential class actions for damages.
Jones v. Tsige, 2012 ONCA 32
EmployIPLaw 
Do you think this has the potential to result in increased liability for an employer. For instance let’s say an employee was not properly vetted and had a criminal record for fraud. If that employee improperly accessed information held by the company and committed further fraud as well as invasion of privacy could the employer be liable?
Currently, the action as stated by the Court of Appeal requires an element of intentional (or reckless) intrusion. An employer’s negligent hiring may not expose it to liability for “simple” intrusion by an employee. Where an employee commits fraud and causes economic harm, there is a good argument for holding the employer responsible vicariously liable under negligence or breach of contract for damages caused by this breach since the intentional element is not an element of such actions. The law will no doubt continue to develop and push against these boundaries.
Interesting. Thanks for the clarification.
Food for thought.