Ontario Court of Appeal Confirms Existence of Common Law Tort for Invasion of Privacy

In this case, Jones v. Tsige, 2012 ONCA 32, the plaintiff claimed that the defendant, her co-worker at a bank, had committed the tort of invasion of privacy by accessing and reviewing her personal banking records without authorization.  The Ontario Superior Court previously rejected this argument noting that, in light of the statutory scheme governing privacy, "this is not an area of law that requires 'judge-made' rights and obligations." 

The Ontario Court of Appeal overturned the decision of the Superior Court.  Following a comprehensive review of the state of the law in Canada and other foreign jurisdictions, the Court of Appeal opined that, "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."

Writing for the Court, Justice Sharpe described the key features of this cause of action to be as follows:

"[F]irst, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action."

With respect to damages, the Court of Appeal fixed the range at up to $20,000 and noted that "damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done."