Tort of Invasion of Privacy in Ontario

Summary

Historically actions around privacy stemmed from concepts of trespass in the common law, and were only recognized as cearly actionable where stipulated by statute. An Ontario Court of Appeal decision today, Jones v. Tsige, changed that by recognizing the tort of invasion of privacy.

The action arose between two employees in a bank who did not know or work with each other. The plaintiff had a common law relationship with the former husband of the defendant, and the defendant acknowledged looking at the plaintiff’s bank information without just cause or reason on multiple occasions.

The plaintiff claimed $70,000 for invasion of privacy and breach of fiduciary duty, and punitive damages of $20,000. The plaintiff moved for summary judgment, but the action was dismissed when the defendant was successful on the motion in claiming that there was no tort for breach of privacy in Ontario.

The Court of Appeal reversed the decision in part and awarded $10,000, recognizing a right of action for intrusion upon seclusion to reflect the changing needs of society.

Analysis

Sharpe J.A. wrote for the court, and accepted the proposition by William L. Prosser in his 1960 article, “Privacy,” that the common law actually developed four different types of related torts for breach of privacy:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

Sharpe J.A. determined that this case fell into the first category and restricted commentary on this cause to avoid deciding on issues beyond the facts before the court. After reviewing the case law on the subject, he concluded that Ontario courts were not far from recognizing a common law right to privacy and had been moving in that direction for some time.

In particular, he considered Euteneier v. Lee, which was relied upon heavily by the motions judge. Any references to privacy interests by the plaintiff in Euteneier were particulars of other causes of actions or consequences of the actions by the defendant, and for that reason it was considered an error to treat those allegations as causes of action that could stand alone.

Sharpe J.A. also discussed s. 8 Charter rights and identified three distinct privacy interests:

1. personal privacy
2. territorial privacy
3. informational privacy

Although the Charter would not necessarily apply to actions between private parties, Sharpe J.A. referenced Heenan Blaikie’s John Craig and stated that it was consistent to develop the common law to reflect Charter values.

Finally, the court reviewed privacy legislation such as the Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Health Information Protection Act (PHIPA), the Freedom of Information and Protection of Privacy Act (FIPPA),the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and the Consumer Reporting Act, as well as privacy law and legislation in other jurisdictions.

The discussion about the pace of technology and the needs of the law to keep up with change was worth noting,

[67] For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender”: “The Law and Privacy: the Canadian Experience” at p. 1. See also Alan Westin, Privacy and Freedom (New York: Atheneum, 1967). The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Elements of the New Tort

The court adopted the wording of the American Restatement § 652B to define intrusion of seclusion, which was itself imported from Prosser,

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The court also referenced the comments to the Restatement to emphasize that non-physical forms of investigation were also included,

Comments:
a. The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.
b. The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

The court lay out the elements of this cause of action:

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

To ensure that intrusion of seclusion was not applied to broadly, the court defined the type of privacy interests that would be affected:

• financial or health records
• sexual practices and orientation
• employment
• diary or private correspondence that could be reasonably considered highly offensive

The court also noted that protections of freedom of expression and freedom of the press could provide valid defences where communication of facts are in the public interest.

Damages

Proving harm to an economic interest would not be required for this cause of action, but the court noted that because of the intangible interest being protected here that any damages would be modest. The court provided a helpful table of damages related to privacy interests in Ontario.

Appendix A: Ontario damage awards

Appendix B: Damage awards under provincial privacy legislation