OCA Recognizes Privacy Tort of Intrusion Upon Seclusion
Those of you patiently awaiting the answer to the question posed in my previous post: "Is There a Tort of Invasion of Privacy in Ontario?", shall wait no longer. The Ontario Court of Appeal has now answered the question with a resounding, albeit slightly qualified "Yes", in an extremely thorough judgment authored by Sharpe J.A.
Jones and Tsige worked at different branches of the Bank of Montreal (BMO). Jones did her personal banking with BMO. Over the course of four years and on 174 occasions, Tsige accessed and reviewed Jones’ banking records using her computer at work. Tsige admitted that she reviewed the records and that she had no legitimate work-related reason for doing so. Jones brought a motion for summary judgment, alleging, among other things, that Tsige had committed the tort of invasion of privacy. Tsige cross-motioned for summary judgment to dismiss the action and argued that there is no such tort in Ontario.
The motion judge noted that there were Superior Court decisions refusing to strike out claims at the pleading stage and academic writings supporting the existence of the tort. However, in his view, the tort of invasion of privacy did not exist in Ontario. The motion judge found Cronk J.A.'s statement in Euteneier v. Lee "binding and dispositive of the question". Euteneier concerned a lawsuit by a woman whose clothes were forcibly removed by police following a suicide attempt while she was detained in a holding cell. In considering whether the trial judge had accurately described the plaintiff’s privacy and dignity interests, Cronk J.A. observed, “[the plaintiff] properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law.” Furthermore, the motion judge found it significant that there were already several federal and provincial privacy statutes.
In my previous post, I queried whether the motion judge's reasoning would be followed by the Court of Appeal. First, I noted that Euteneier did not actually consider the existence of the tort of invasion of privacy. Second, I pointed out that the federal and provincial privacy statutes did not necessarily exclude the tort of invasion of privacy at common law.
Recognition of the Tort of Intrusion Upon Seclusion
At the Court of Appeal, Sharpe J.A. held that the statement in Euteneier was clearly not
"intended to express any dispositive or definitive opinion as to the existence of a tort claim for breach of a privacy interest. No such claim had been advanced by the plaintiff, no argument on that point was addressed by counsel, and in my view, no opinion on that point was expressed by this court."
Furthermore, Sharpe J.A. was "not persuaded that the existing legislation provides a sound basis for this court to refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy." For instance, while BMO was subject to the federal Personal Information Protection and Electronic Documents Act, Jones' remedies should not be restricted to a complaint under that statute.
Sharpe J.A. carefully reviewed the academic literature and the case law from multiple jurisdictions on the tort of invasion of privacy, which was a mixed bag:
- Most of the academic literature supported the existence of the tort of invasion of privacy.
The Canadian case law was inconclusive but certainly did not rule it out.
- Most American states had recognized a right of action for invasion of privacy and the Restatement on Torts had adopted Prosser's four categories of invasion of privacy: (1) intrusion upon the plaintiff's seclusion or solitude; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness.
- In the U.K., the House of Lords held that privacy is not a principle of law in itself capable of supporting a private law right for damages. However, a recent House of Lords decision defined the tort of breach of confidence so as to effectively embrace claims that would fall within intrusion upon seclusion.
- The High Court of Australia has left the door open to recognition of a common law right to privacy despite earlier authority to the contrary.
- The New Zealand Court of Appeal has recognized a common law tort of breach of privacy.
Sharpe J.A. held that recognition of invasion of privacy in tort was justified based on the literature the case law and other factors, including the fact that:
- Several provinces had created a tort of invasion of privacy, including British Columbia, Manitoba, Saskatchewan and Newfoundland. The statutes do not define "invasion of privacy" and the "existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right."
- The Charter jurisprudence has recognized distinct privacy interests, including personal privacy, territorial privacy and informational privacy. Jones' claim to privacy over her banking records fell within the informational privacy interest category, which recognizes "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others."
- The pace of technological change has accelerated exponentially and it was important for the common law to respond to the problem posed by "the routine collection and aggregation of highly personal information that is readily accessible in electronic form."
In the end, Sharpe J.A. found it appropriate for the Court to confirm the existence of the tort of intrusion upon seclusion. He did not expressly recognize the other three categories of the tort. However, he did "accept Prosser's insight that the general right to privacy embraces four distinct torts", suggesting that judicial recognition of the other three categories is not far in the making.
The Elements of the Tort of Intrusion Upon Seclusion
The Court adopted the elements of the tort of intrusion upon seclusion from the Restatement (Second) of Torts:
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 key features of the tort are as follows:
the defendant's conduct must be intentional, which includes recklessness;
the defendant must have 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.
Proof of harm to a recognized economic interest is not an element of the cause of action. Furthermore, the tort is limited to claims for "deliberate and significant invasions of personal privacy" and "it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive."
The Measurement of Damages
Damages for intrusion upon seclusion fall into the category of "symbolic" or "moral" damages. Absent proof of pecuniary loss, most awards will be modest, unless there is egregious conduct which may attract an award of aggravated damages, or conduct that would justify an award of exemplary or punitive damages. Otherwise, the upper range is "up to $20,000". Factors that assist in determining where in the range the case falls include the following:
- the nature, incidence and occasion of the defendant’s wrongful act;
- the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
- any relationship, whether domestic or otherwise, between the parties;
- any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
- the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
For instance, Tsige's actions of accessing Jones' banking information gave rise to a claim at the mid-point of the range of $10,000.
This case has potential significance for nearly everyone that deals with personal information. Companies and individuals in industries such as banking, collections, credit reporting, health care and technology should be especially wary of this decision. While there is already extensive regulation of personal information in the form of federal and provincial statutes, claimants meeting the elements of the test set out above now have (modest) claims for damages for the tort of intrusion of seclusion in Ontario.
The decision in Jones is especially significant because the Ontario Court of Appeal recognized that intrusion upon seclusion is actionable without proof of pecuniary loss. This makes the tort especially amenable to a common issue for class proceedings.
Jones v. Tsige, 2012 ONCA 32
Court of Appeal Docket: C53577
Date of Decision: January 18, 2012
highly offensive invasion information communicated to others informational privacy interest intentional conduct Ontario Court of Appeal personal information Personal Information Protection and Electronic Documents Act private affairs tort of intrusion upon seclusion tort of invasion of privacy