The Development Of Privacy Torts in Ontario - A Case Comment On Jones v. Tsige, 2012 ONCA 32

Introduction

In Jones v. Tsige, 2012 ONCA 32, the Court of Appeal for Ontario issued the first definitive statement from a Canadian appellate court that there is a common law right of action for intrusion upon seclusion, or invasion of personal privacy. The elements of the new tort are defined by reference to the Restatement (Second) of Torts (2010), following the approach taken by American and Australian courts.

Facts

Jones and Tsige worked at separate branches of a Canadian bank. While the two parties had no personal contact, Tsige formed a relationship with Jones' former husband. Over the course of four years, Tsige accessed Jones' personal bank account information at least 174 times, for the alleged purpose of confirming whether Jones' former husband was paying child support to Jones. Jones brought a claim for invasion of privacy and breach of fiduciary duty, and moved for summary judgment. Tsige brought a crossmotion for summary judgment to dismiss the action on the basis that Ontario law did not recognize a tort of invasion of privacy.

Defining the tort of intrusion upon seclusion

After reviewing domestic and international common law and Canadian privacy and human rights legislation, the Court of Appeal for Ontario held that it was appropriate to confirm the existence of a right of action for invasion of privacy, or "intrusion upon seclusion", and noted that the common law should evolve to respond to issues arising from the routine collection and aggregation of highly personal information that is readily accessible in electronic form.

The Court of Appeal for Ontario defined the elements of the tort of intrusion upon seclusion by reference to the formulation set out in the Restatement (Second) of Torts (2010). To prove intrusion upon seclusion, Ontario plaintiffs must show that:

The defendant's conduct was intentional or reckless; The defendant 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. Intrusion upon seclusion is actionable even if there is no publication or other use of the information collected, and it is not necessary for the plaintiff to suffer pecuniary losses as a result of the invasion.

Other Jurisdictions

In reaching its decision, the Court of Appeal for Ontario reviewed privacy‐based torts that have recently developed in other common law jurisdictions. The test formulated by...