In a groundbreaking decision, the Ontario Court of Appeal recognized the new privacy tort of “intrusion upon seclusion.” The decision resolves a body of case law previously divided as to whether a tort for invasion of privacy exists at common law in Ontario. In Jones v. Tsige (January 2012) the Court of Appeal found that the common law was required to evolve in order to respond to modern privacy issues, including technological changes in which personal information is routinely collected and readily accessible in electronic form.
Readers of Focus will recall the Ontario Superior Court of Justice decision in which the Court rejected the existence of a tort for the invasion of privacy (see “Court rejects tort of invasion of privacy in Ontario”). The case involved an employee at the Bank of Montreal who accessed and reviewed another employee’s personal bank accounts on 174 occasions over a four-year period.When the plaintiff became aware of the unauthorized access to her accounts, she sued the defendant. She claimed that by improperly accessing and reviewing her bank accounts the defendant committed the tort of invasion of privacy. The plaintiff sought general, punitive and exemplary damages and a permanent injunction to restrain any similar conduct in the future. The defendant argued that Ontario does not recognize the invasion of privacy as a tort.
SUPERIOR COURT OF JUSTICE REFUSES TO RECOGNIZE THE TORT
The action was dismissed by the Superior Court judge who relied primarily on the Court of Appeal’s earlier decision in Euteneier v. Lee (2005). Euteneier involved a law suit against the police following a strip search in which a female prisoner was left bound and unclothed in a holding cell, visible to passers-by, for 20 minutes. Although the plaintiff’s claims for damages were primarily based on breaches of the Charter, the extent to which privacy rights were protected was directly before the Court of Appeal. The Court of Appeal noted that the plaintiff “properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law…” The Superior Court of Justice relied on Euteneier to hold that Ontario law does not recognize a cause of action for invasion of privacy. Instead the various statutes dealing with privacy provide the necessary remedies for invasions of privacy. The plaintiff appealed the decision to the Ontario Court of Appeal.
THE COURT OF APPEAL
Ontario Court of Appeal Justice Sharpe started by conducting a thorough review of the case law and legal commentary relating to the tort of invasion of privacy. He paid particular attention to the seminal article by William L. Prosser entitled “Privacy”, in which Prosser argued that in American jurisprudence the general right to privacy embraces four distinct torts, each with its own considerations:
- Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Following his review of the case law, Justice Sharpe concluded that “Ontario has already accepted the existence of a tort claim for appropriation of personality and, at the very least, remains open to the proposition that a tort action will lie for an intrusion upon seclusion.”
Justice Sharpe was also influenced by the Charter jurisprudence relating to privacy. He noted that the case law identifies privacy as being worthy of constitutional protection and integral to the relationship between individuals and the rest of society. He coupled this explicit Charter recognition with the notion that the common law should develop consistently with Charter values.
STATUTORY REGIME FAILS TO PROVIDE SUFFICIENT REMEDY
Readers of Focus will recall that one of the reasons underlying the lower court’s dismissal of the action was that the various statutory schemes relating to privacy provided sufficient remedies for breaches of privacy. Justice Sharpe disagreed. In his view, the applicable legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA) did not provide a sufficient remedy for the plaintiff. Under PIPEDA, the plaintiff would be forced to lodge a complaint against her own employer, as opposed to the wrongdoer. The employer could potentially have a complete defense to the complaint since the defendant acted as a rogue employee. Finally, the appellate judge noted that PIPEDA does not provide for damages as a remedy. In light of this legal vacuum, he made the following comment:
Finally, and most importantly, we are presented in this case with facts that cry out for a remedy … the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.
RECOGNITION OF THE TORT – “INTRUSION UPON SECLUSION”
In his view, there was ample support for the recognition of a civil action for damages for intrusion upon seclusion. He described this tort as follows:
…the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff’s private affairs. Of particular relevance to this appeal, is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account.
Justice Sharpe went on to set out the elements of the newly-recognized tort:
- 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.
In the Court’s view, the third element would operate to prevent an opening of the floodgates for privacy tort claims, since the intrusion must be highly offensive on a “reasonable person” standard. It is also worth noting that, in the view of the Court, harm to an economic interest was not an element of the cause of action.
DETERMINING THE AMOUNT OF DAMAGES
Justice Sharpe then discussed how to determine the amount of damages when intrusion upon seclusion is established. He stated that “given the intangible nature of the interest protected” damages would ordinarily be measured by “a modest conventional sum.” In cases where the plaintiff has suffered no financial loss, the damages should be modest but also sufficient to address the intrusion. He fixed the upper limit for such damages at $20,000. The following factors from Manitoba’s Privacy Act were provided as a useful guide to assist in determining where in the range a case falls:
- 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;
- Any relationship, whether domestic or otherwise, between the parties;
- Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
- The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
Justice Sharpe refused to exclude the possibility that aggravated and punitive damages might be awarded in “exceptional” cases. At the same time, he was reluctant to encourage such awards, noting that consistency and predictability are paramount values. Absent truly exceptional circumstances, the upper limit on awards should be $20,000.
ELEMENTS OF THE NEW TORT APPLIED
The Court of Appeal found that the defendant had committed the tort of intrusion upon seclusion when she repeatedly accessed the plaintiff’s private banking records.
- The intrusion was intentional;
- It amounted to an unlawful invasion of the plaintiff’s private affairs;
- It would be viewed as highly offensive to a reasonable person; and
- It caused distress, humiliation or anguish.
In setting the damages, Justice Sharpe placed the case at the mid-point of the severity range. Although the defendant’s actions were deliberate, repetitive and caused emotional distress, the plaintiff suffered no public embarrassment or harm to her health or financial interests. In addition, the defendant had apologized and made genuine attempts to make amends. In light of these factors, damages were set at $10,000. The Court went on to hold that, based on the novel issue raised by the case, the parties should bear their own costs at both court levels.
In Our View
The decision of the Court of Appeal may have significant implications for employers in terms of their collection and retention of personal information of employees. Provided the collection of such information is with the consent of the employee, the Court of Appeal’s decision in Jones v. Tsige should not have a major impact. However where an employer collects information without the consent of an employee, or conducts investigations or surveillance unbeknownst to employees, they may face greater risk in light of the recent recognition of this privacy tort. Organizations should review their information-collection policies, and, if applicable, any surveillance practices, to ensure that they do not run afoul of the new tort of intrusion upon seclusion.