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Queen's University
 

Jones v. Tsige [2012] ONCA 32 Docket: C53577

How might the tort of “intrusion on seclusion” be related to human rights?

Facts

This case involves two employees of the Bank of Montreal who worked at different branches and who did not know one another even though one was in a common law relationship with the other’s former husband. The latter admitted to her employer that she had accessed the former’s financial information over 174 times, contrary to policy. The snooping employee (Tsige) was put on a week’s leave and denied a bonus.  Unsatisfied, the employee whose privacy had been violated (Jones) went to court to sue Tsige for damages.   When the court dismissed her case on the grounds that Ontario does not recognize the tort of breach of privacy, Jones took her case to the Court of Appeal. 

Issue

Does Ontario law recognize a right to bring a civil action for damages for the invasion of personal privacy?

Decision

Yes

Reasoning

The Court of Appeal ruled that “in [its] view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion.” (65)

In its Rationale, it says that case law supports the existence of such a cause of action, mentions the protections offered by the Charter for personal, territorial and informational privacy; outlines how advances in information technology have changed the way we store, retrieve and communicate information;  indicates a need to protect “readily accessible” personal information that is threatened by those advances in technology and finally, indicates the need to provide victims with legal remedies to violation of their privacy (66-69).

Features:

-          The Key Features of this cause of action are, first, that the 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. ‘However, proof of harm to a recognized economic interest is not an element of the cause for action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for instruction upon seclusion will ordinarily be measures by a modest conventional sum  (71)

Limitations

-          “These element make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded; it is only intrusions into matters such as one’s financials or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.” (72)

 Damages

-          Limited at $20,000.  “I would ne3ither exclude nor encourage awards of aggravated and punitive damages” (88)

-          “The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls;

  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 where domestic or otherwise, between the parties;
  4. Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
  5. The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.  (87)

In this case, Jones was awarded a mid-range ($10,000) amount in damages for Tsige’s intrusion on her seclusion.  

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000