Ontario's New Tort Of Invasion Of Privacy

Summary:

The Ontario Court of Appeal in Jones v. Tsige1 has confirmed Ontario law recognises a right to bring a civil action for damages for the invasion of privacy: There is now a new cause of action in Ontario for 'intrusion upon seclusion.' The decision creates a remedy for invasion of personal privacy and also leaves open the possibility that three other causes of action for invasion of privacy may be recognised in Ontario in the near future.

Background

Sandra Jones and Winnie Tsige were co-workers at a bank. Jones and Tsige did not know each other personally, but Tsige had begun a relationship with Jones' former husband. Jones was also a customer of the bank. In her position as a bank employee, Tsige accessed Jones' banking records at least 174 times over four years.

In July 2009, Jones discovered Tsige's actions. When confronted, Tsige admitted she had looked at Jones' personal information, had no legitimate reason for doing so, and understood it was contrary to both the bank's policies and her own professional responsibility. Tsige apologised and was disciplined by the bank.

Despite the apology, Jones commenced an action against Tsige, asserting that her privacy interest in her confidential financial and personal information had been violated. Jones claimed $70,000.00 for invasion of privacy and breach of fiduciary duty as well as $20,000.00 in punitive damages.

In 2010, Jones moved for summary judgment on her claim. Tsige brought a cross-motion for summary judgment dismissing the action. The motion judge concluded that the Court of Appeal in Euteneier v. Lee2 had conclusively determined that a tort of invasion of privacy did not exist in Ontario when it stated that "there is no 'free standing' right to dignity or privacy under the Canadian Charter of Rights and Freedoms ("Charter") or at common law." The motion judge further held that given the existence of provincial privacy legislation, any further expansion of privacy rights should be dealt with by statute. The motion judge granted Tsige's cross-motion for summary judgment dismissing Jones' claim.

The Court of Appeal Decision

Jones appealed the dismissal of her claim. The central issue before the Court of Appeal was whether or not Ontario law recognises a cause of action in tort for invasion of privacy.

Justice Sharpe noted that the question of whether the common law should recognise a cause of action in tort for invasion of privacy has been debated for over a hundred years. In a...