On January 18, 2012, the Ontario Court of Appeal released its decision in Jones v. Tsige conclusively recognizing invasion of privacy as an actionable tort in Ontario.
Ms. Jones and Ms. Tsige both worked for the Bank of Montreal, at different branches. They did not know or work with each other. However, Tsige became involved in a relationship with Jones’ former husband and for four years, Tsige used her workplace computer to access Jones’ personal accounts maintained at the Bank of Montreal at least 174 times. In doing so, she obtained information concerning the details of transactions as well as personal information.
Tsige did not publish, distribute or record the information, but she maintained that she had become involved in a financial dispute with Jones’ former husband and accessed the accounts to confirm what he was saying about how much he was paying to Jones in child support. Jones did not accept that explanation, saying that it was inconsistent with the timing and frequency of Tsige’s snooping.
Tsige admitted that her behaviour was improper, and the Bank disciplined her for breaching the Bank’s internal rules. Nevertheless, Jones sued Tsige for damages for invasion of privacy as well as punitive damages.
Both parties then brought motions for summary judgment. Tsige’s motion sought to dismiss the action. The motion judge agreed with Tsige that no tort of invasion of privacy existed at common law in Ontario.
The Court of Appeal canvassed the law on the point in a number of jurisdictions and most notably in theUnited States. It pointed out that most American jurisdictions now accept the existence of the tort of “intrusion upon seclusion”, more accurately described as “intrusion upon the Plaintiff’s seclusion of solitude, or into his private affairs”.
After a thorough review, including a reference to the privacy interests protected by Canada’s Charter of Rights, the court recognized the tort and adopted the elements of an action for intrusion upon seclusion as those set out in the American Restatement (Second) of Torts (2010). The court descibed the key features of the cause of action as firstly, that the Defendant’s conduct must be intentional or reckless, secondly that the Defendant must have invaded the Plaintiff’s private affairs without justification and thirdly, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. Proof of harm to recognize economic interest is not an element of the cause of action.
Having said that, the court made a specific point of emphasizing that “given the intangible nature of the interest protected, damages for intrusion upon seclusion would ordinarily be measured by a modest conventional sum”.
Accordingly, even though the court made it clear that a claim will only arise if the invasion of personal privacy is deliberate and significant, the amount typically to be awarded in such a case will be modest. In fact, the court specifically fixed the ordinary range of such an award as being up to $20,000. In this specific case, the court fixed the damages at the mid-point of the range or $10,000.
Those familiar with the typical order of magnitude of some American jury awards will be appalled that such a relatively trivial amount would be all that an aggrieved Plaintiff could reasonably expect. Indeed, one would have to question whether or not an action would ever be worth bringing if this is all that might be at stake. One might also wonder if such a palty sum would serve as an effective disincentive to someone inclined to behave this way. While a claim for punitive damages might well be put forward, as was done in Jones v. Tsige, such awards are extremely rare (and no such award was made in this case). Nevertheless, those to whom privacy rights are important and should be enforceable should be pleased that this tort has finally been recognized in Ontario.