Thursday, February 13, 2014

Jones v. Tsige - Revisiting the Tort of Invasion of Privacy


A year and a half ago, Ontario's highest court took the "incremental step" of recognizing the tort of invasion of privacy in the seminal decision of Jones v. Tsige.  In the first of a two-part series, this blog post will summarize this cause of action. In a follow-up post, we will examine how this tort has been interpreted and applied by lower courts.

Brief History:

The plaintiff and defendant worked at different branches of the Bank of Montreal, but never knew or worked with one another. Over the course of four years, the defendant used her workplace computer to access the plaintiff’s personal bank accounts. The information displayed included transactions details, as well as personal information such as the plaintiff's date of birth, marital status and address. The defendant did not publish, distribute or record this information in any way.

The plaintiff asserted that her privacy interests in her confidential banking information were “irreversibly destroyed” and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000.

The Tort of "Inclusion upon Seclusion"

Recognizing that "the time ha[d] come to recognize invasion of privacy as a tort in its own right," the Ontario Court of Appeal laid out a four-step test, whereby a plaintiff must establish:

1.   that an unauthorized intrusion occurred;
2.   that the intrusion was highly offensive (according to the standards of a reasonable person);
3.   the matter intruded upon was private; and,
4.   the intrusion caused anguish and suffering.

The first element of the tort requires that the defendant’s conduct be intentional (irrespective of whether or not it is reckless). The court insisted that the first element focuses on the act of the intrusion, rather than the dissemination or publication of information. Accordingly the first element is satisfied if an unauthorized intrusion occurs, regardless of how minor.

For the second element to be satisfied, factors to be considered are the degree of the intrusion, the context, conduct and circumstances of the intrusion, the intruder's motives and objectives and the expectations of those whose privacy is invaded.

The third element of the test places a burden on the plaintiff to establish that the expectation of seclusion or solitude was objectively reasonable. Considering privacy is both a subjective and objective right, this is a two-step analysis, first considering the actual subjective expectation of the privacy interests involved and then looking at whether that expectation was objectively reasonable.

Finally, at the fourth element anguish and suffering are generally presumed once the first three elements have been established.

What Breaches does this Tort Cover?

Cognizant of the fact that recognizing privacy as a tort had the potential of opening floodgates of claims from individuals who were overly sensitive or unusually concerned about their privacy, the Ontario Court of Appeal held that a claim for intrusion upon seclusion would only arise if there was a deliberate and significant invasion of one's personal privacy.

The Court provided examples of intrusions which would justify this threshold:
  • Intrusion upon one's financial records;
  • Intrusion upon one's health records;
  • Intrusion pertaining to one's sexual practices and orientation;
  • Intrusion pertaining to one's employment;
  • Intrusion pertaining to one's diary or private correspondence.
Quantum of Damages under this Tort

Considering the intangible nature of an individual's privacy interests and the fact that a plaintiff typically does not suffer pecuniary losses as a result of an invasion of privacy, the Ontario Court of Appeal held that damages ought to "be modest but sufficient to mark the wrong that has been done." Accordingly, the maximum award one can receive under this head of damages is limited to $20,000.
- Nitin Pardal, Toronto
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