Top 5 Civil Appeals From The Court Of Appeal (February 2012)

Jones v. Tsige, 2012 ONCA 32 (Winkler C.J.O., Sharpe J.A. & Cunningham A.C.J. (ad hoc)), January 18, 2012 Fischer v. IG Investment Management Ltd., 2012 ONCA 47 (Winkler C.J.O., Epstein J.A. and Pardu J. (ad hoc)), January 27, 2012 Mady Development Corp. v. Rossetto, 2012, ONCA 31 (Doherty, Armstrong and Hoy JJ.A.), January 17, 2012 Rouge Valley Health System v. TD Canada Trust, 2012 ONCA 17 (Laskin, Goudge and Gillese JJ.A.), January 12, 2012 Ontario (Finance) v. Pilot Insurance Company, 2012 ONCA 33 (MacPherson, LaForme and Epstein JJ.A.), January 19, 2012 1. Jones v. Tsige, 2012 ONCA 32 (Winkler C.J.O., Sharpe J.A. & Cunningham A.C.J. (ad hoc)), January 18, 2012

In this case, the Court of Appeal squarely confronted the question whether Ontario law recognizes a right to bring a civil action for damages for the invasion of personal privacy.

The parties worked at different branches of the Bank of Montreal, but did not know or work with each other. T became involved in a relationship with J's former partner; she also became involved in a financial dispute with him. As a result, T accessed J's personal Bank of Montreal accounts on at least 174 occasions, hoping to confirm whether he was paying support to J. The information displayed included transaction details, as well as personal information such as date of birth, marital status and address. T did not make any of this information public, but J nevertheless became suspicious and complained to the bank. The bank took action against T. J issued a statement of claim and, proceeding under the Rule 76 Simplified Procedure, moved for summary judgment. T brought a cross-motion for summary judgment to dismiss the action.

The motion judge granted summary judgment in favour of T on two grounds. First, the motion judge considered that Euteneier v. Lee (2005), 77 O.R. (3d) 621 (C.A.) disposed of the question whether the tort of invasion of privacy exists at common law in Ontario, by ruling out an actionable, free-standing right to dignity or privacy at common law. Second, the motion judge held that, given the existence of privacy legislation protecting a limited range of privacy interests, any expansion of those rights ought to be dealt with by legislation rather than by judicial development of the common law.

The Court of Appeal reversed the summary judgment dismissing the action and substituted an order granting summary judgment in favour of J for damages in the amount of $10,000.

Sharpe J.A. reviewed case law from Ontario, cases from other provinces, Charter jurisprudence, federal and provincial legislation and the extent to which a tort of privacy has been recognized in the United States and other commonwealth jurisdictions. He adopted as his analytical structure the four-tort catalogue delineated by William L. Prosser in his seminal article, "Privacy" (1960), 48 Cal. L.R. 383:

Intrusion upon the plaintiff's seclusion or solitude or into his private affairs. Public disclosure of embarrassing private facts about the plaintiff. Publicity which places the plaintiff in a false light in the public eye. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Sharpe J.A. focused primarily on the category of intrusion upon seclusion for two reasons: first, because confusion may result from a failure to maintain appropriate analytic distinctions between the categories; and second, because common law courts should restrict themselves to the particular issues posed by the facts of the case before them and not attempt to decide more than is strictly necessary to decide that case. Development of the common law ought to be incremental.

Reviewing the case law, Sharpe J.A. noted that there has been no definitive statement from a Canadian appellate court on the issue of whether there is a common law right of action corresponding to the intrusion on seclusion category. He disagreed with the motion judge that the Euteneier case foreclosed the development of such a cause of action. In that case, Sharpe J.A. pointed out, the plaintiff's dignity or privacy interests were treated as particulars of other causes of action or as the consequences she alleged flowed from the actions of the defendants. This should not be surprising: it has long been recognized that aspects of Prosser's four-tort catalogue have been protected by other causes of action, legislative provisions and constitutional guarantees.

Sharpe J.A. noted in particular that Charter jurisprudence has recognized three distinct privacy interests, one of which is informational privacy. Informational privacy was described by Binnie J. in R. v. Tessling, [2004] 3 S.C.R. 432 at para. 23, as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others". Sharpe J.A. also noted that, while the Charter does not have direct application in disputes between private litigants, the common law should be developed in a manner consistent with Charter values; thus the recognition of a distinct informational privacy interest by the Supreme Court of Canada supported the recognition of a civil action for damages for intrusion upon the seclusion of the plaintiff.

Sharpe J.A. had to address T's argument that it was not open to the court to develop the common law to incorporate a tort of invasion of privacy because privacy is already the subject of federal and provincial legislation and it should be up to the democratically elected legislators in Queen's Park to decide whether to follow other Canadian provinces in creating a statutory cause of action. Sharpe J.A. was unimpressed with this submission and noted, in particular, that the existing legislation, which would have applied in the present case, has nothing to do with private rights of action between individuals. He also observed that no provincial legislation from other provinces provides a precise definition of what constitutes an invasion of privacy. The more common legislative approach is to give the courts the power to define the contours of the right. In Sharpe J.A.'s view, the responsibility of common law courts is the same, regardless whether such an enabling provision has been enacted.

Against this backdrop, Sharpe J.A. proceeded to confirm the existence of a cause of action for intrusion upon seclusion and to define the scope of the tort. He reiterated that privacy has long been recognized as an important and animating value of various traditional causes of action to protect personal and territorial privacy. However, the pace of recent technological change poses a novel threat:

As the facts of this case indicate, routinely kept electronic databases 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.

Sharpe J.A. also noted that the facts of the present case cried out for a remedy. The actions of T were deliberate, prolonged and shocking. Any person in the position of J would have been...