By Samantha Wu

Advancements in technology have made collecting, storing, and accessing the personal data of an individual easier than ever before.  Consequently, concerns about the risk of unauthorized access to personal information have increased.

In Jones v. Tsige, the Ontario Court of Appeal recognized a right to bring a civil action for invasion of personal privacy.  The Court examined case law from Ontario and other provinces, provincial legislation relating to privacy, and the state of the law in foreign jurisdictions.  The Court noted the Supreme Court of Canada interpreted Section 8 of the Charter, which protects against unreasonable search and seizure, as protecting the underlying right to privacy.  The Court stated the common law should be developed in a manner consistent with Charter values and the explicit recognition of a right to privacy as underlying a Charter right supported the recognition of a civil action for damages for intrusion upon a plaintiff’s seclusion. Recognizing this particular cause of action would amount to an incremental step consistent with the court’s role to develop the common law in a manner that is consistent with the changing needs of society.

Elements of the tort

The elements of the cause of action would be the following:

  1. The defendant’s intrusive conduct must be intentional, within which recklessness would be included.
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns.
  3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish. Intrusion into financial or health records, sexual practices and orientation, employment, diary or private correspondence would be considered highly offensive.  Proof of harm to an economic interest would not be an element of the cause of action.

Notably, the Court stated no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, competing claims, such as claims for the protection of freedom of the press and freedom of expression.

Determining damages amounts

The Court also stated damages for intrusion upon seclusion in cases in which the plaintiff suffered no pecuniary loss should be modest given the intangible nature of the protected interest.  The Court fixed the range at up to $20,000.00.  The Court provided several factors a court should consider when determining where in the range the case would fall:

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.

5.         The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

Application of the test to the case

In Jones v. Tsige, the appellant discovered the respondent, a bank employee, had secretly viewed her banking records over several years.  The bank employee was in a common law relationship with the appellant’s ex-husband.  The banking records contained not only transactions details, but also, the appellant’s date of birth, marital status, and address. The bank employee did not publish, distribute, or record the information.

The Court noted that although the bank employee was apologetic and tried to make amends for her actions, the bank employee’s actions arose from a complex web of domestic arrangements and were deliberate, prolonged, and shocking.  Any person in the appellant’s position would be profoundly disturbed by the significant intrusion into highly personal information.  The appellant was very upset over the intrusion into her private financial affairs.  The Court also took into account how the appellant suffered no public embarrassment or harm to her health, welfare, social, business, or financial position.  The Court concluded the appellant was entitled to $10,000.00, which was in the mid-point of the range of damages.