In its recent decision, Jones v. Tsige, the Court of Appeal for Ontario considered whether there is a cause of action for the invasion of personal privacy.  The case involved two bank employees who worked at different branches of the same bank.  The respondent, Tsige, was in a relationship with the appellant’s former husband, 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.

In considering the appeal, Sharpe J.A. looked at domestic case law, as well as the approach taken to privacy torts in foreign jurisdictions.  After reviewing the case law from Ontario, Sharpe J.A. 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.  Sharpe J.A. also took into account the values underlying the Canadian Charter of Rights and Freedoms and current privacy legislation.

Ultimately, Sharpe J.A. held that it was appropriate to recognize a right of action for intrusion upon seclusion. Accordingly, he adopted the elements of the tort from the American Restatement (Second) of Torts (2010), and outlined its central features as follows:

1. the defendant’s conduct must be intentional;
2. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

Contrary to the tests in other jurisdictions, several of which require that the intrusion caused anguish or detriment to the plaintiff, Sharpe J.A. did not require proof of loss to the plaintiff.

Regarding the issue of the appropriate amount of damages, Sharpe J.A. stated that if there is no proof of economic loss, the awards should be “modest” while still capturing the gravity of the invasion.  He decided on a range of up to $20,000 for damages, and suggested several factors which should be considered in determining the quantum of damages.  These factors include:

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

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

A copy of the Court of Appeal’s decision can be found at Jones v. Tsige, 2012 ONCA 32.

D’ette Bourchier, Hons.B.A., J.D.

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