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: Introducing the Common Law Tort of Privacy: Sandra Jones v. Winnie Tsige, 2012 ONCA 32

January 18, 2012

On January 18, the Ontario Court of Appeal recognized a new action for "intrusion upon seclusion" that attracts common law liability for invasion of privacy: 

 
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.    

This case is a reminder that employers should review policies with a view to recognizing employee privacy in the workplace (e.g., codes of conduct, ethics) and balancing that privacy right with the regulation of legitimate management reasons for an 'invasion' (e.g., computer use policies).

The Tsige case involved an employee,Tsige, who surreptitiously viewed the bank records of another employee, Jones, approximately 174 times over a period of four years. When Jones discovered Tsige's actions she informed the employer. Tsige was suspended for one week, without pay, for violating corporate policy. Jones also filed a statement of claim against Tsige claiming that her privacy interest in her confidential banking information had been "irreversibly destroyed" and demanded damages of $70,000 for invasion of privacy and breach of fiduciary duty and $20,000 in punitive and exemplary damages. Although a motion judge granted summary judgement and dismissed the claim on the basis that Ontario law did not recognize the tort of breach of privacy, the court concluded that the motion judge was wrong and said:

  In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.    

Although some lower courts had previously hinted that Canadian courts were close to recognizing a common law right of action for breach of privacy, this is the first decision from a Canadian appellate court on the issue.

The Court of Appeal defined the elements of the new tort as follows: 
  • Defendant's conduct must be intentional or reckless;
  • Defendant must have invaded the plaintiff's private affairs or concerns without lawful justification; and,
  • A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. 
The court also found that proof of harm to a recognized economic interest was not an element of the cause of action and that damages would ordinarily be modest. In this case Jones was awarded $10,000.

We anticipate that this decision will be appealed. "Lawful justification" is not an element that has been adopted by legal experts on the topic or in court decisions except decisions that involved a violation of government protected Charter rights. While the Court of Appeal concluded that repeated examination of Jones' private bank records amounted to an unlawful invasion, 'lawful justification' leaves significant room for interpretation by other courts on the facts before them.

Watch for a more comprehensive review of this case in our upcoming Winter 2012 edition of Atlantic Employer's Counsel.

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background of our Labour & Employment practice group, please visit www.stewartmckelvey.com.

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