Invasion of Privacy Court Ruling Could Be a Game-Changer

The Court of Appeal for Ontario recently considered whether there was a cause of action for the invasion of personal privacy in Jones v.Tsige.

The case involved two bank employees, Sandra Jones and Winne Tsige, who worked at two different branches of the same bank. The respondent, Tsige, was in a relationship with the former husband of the appellant, Jones, and over the course of four years, the respondent had used her work computer to secretly access the appellant’s banking records.

The respondent maintained that she had accessed the records in order to determine whether the appellant’s former husband was paying child support to the appellant. When the appellant discovered the privacy breach, she brought an action against the respondent and moved for summary judgment. In response, the respondent brought a cross-motion to dismiss the action.

The motion judge granted summary judgment and dismissed the action on the basis that in Ontario there was no tort of breach of privacy, and any expansion of rights should be dealt with through privacy legislation rather than the common law.

Case Law and Legislation

In considering the appeal, the Court of Appeal first looked at domestic case law. After reviewing the case law from Ontario, the Court came to the conclusion that rather than denying the possibility of a tort of breach of privacy, courts have left the door open to recognize such a tort. Moreover, several other provinces have recognized this possibility as well.

The Court also took into account the values underlying the Canadian Charter of Rights and Freedoms and current privacy legislation. Although the Charter generally does not apply in a dispute between private actors and would not apply in this case, both the fact that privacy is one of the fundamental values protected by the Charter and that the common law should be developed in a manner consistent with Charter values supported the recognition of a cause of action for damages for invasion of privacy. Further, the appellant’s claim to privacy in her banking records was found to be comparable to the informational privacy protected through Charter jurisprudence.

The respondent argued that as privacy is already the subject of much legislation in both Ontario and Canada, expanding the scope of protection should be left to the legislature.

There is a solid legislative basis relating to the protection of privacy. However, the Court held that the current legislative framework does not provide any indication that further development of the common law with regard to privacy issues should be discouraged. That argument therefore did not provide a solid basis for denying the appellant’s claim.

In fact, the Court emphasized how advances in technological progress have led to changes in the way personal information is stored. As a result, this information is readily accessible and increasingly vulnerable: “Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.”

Given the realities of modern technology and the fundamental importance of privacy rights, the Court saw fit to develop the common law to protect those rights.

Looking to American Jurisprudence

In arriving at its decision, the Court looked to the approach taken to privacy torts in the United States. As the Court explains in its decision, privacy law in the United States is heavily influenced by the writings of L.D. Brandeis in the late 19th century and William L. Prosser in the 1960s.

In his influential article on privacy, Prosser identified four categories of privacy torts that had developed through the jurisprudence. These categories included torts that dealt with

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 that places the plaintiff in a false light in the public eye; and
4. appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The Court recognized the validity of this “catalog” of privacy torts and decided that the tort of intrusion upon seclusion properly fit into the first category.

The Tort of ‘Intrusion Upon Seclusion’

Ultimately, the Court held that it was appropriate to recognize a right of action for intrusion upon seclusion: “Recognition 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 Court further noted that, based on the particular facts of this case, the appellant deserved to have a remedy. Accordingly, the Court adopted the elements of the tort from the American Restatement (Second) of Torts (2010).

The central features of the tort are as follows: The defendant’s conduct must be intentional; the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and the invasion would be considered, by a reasonable person, to be highly offensive, causing distress or humiliation.

Contrary to the tests in other jurisdictions, several of which require that the intrusion must cause anguish or detriment to the plaintiff, the Court did not require proof of loss to the plaintiff.

The Court was confident that recognizing this cause of action would not “open the floodgates,” as the remedy is available only for those invasions of privacy that are deliberate and significant, as was the case in this appeal.

Although the issue didn’t arise under these circumstances, the right to privacy may be further limited by other competing rights, such as the freedom of expression and freedom of the press.

Determination of Damages

Regarding the issue of the appropriate amount of damages, the Court stated that if there were no proof of economic loss, the award should be “modest” while still capturing the gravity of the invasion. The Court decided on a range of up to CA$20,000 (US$20,161) for damages, and suggested several factors that should be considered in determining the quantum of damages, including the following:

1. 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;

2. any relationship, whether domestic or otherwise, between the parties;
3. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
4. the conduct of the parties, both before and after the wrong, including any apology or offer or amends made by the defendant.

According to the Court, aggravated or punitive damages would be appropriate only in the most exceptional circumstances. In this case, damages were fixed at $10,000 after weighing the factors listed above.