snIP/ITs Insights on Canadian Technology and Intellectual Property Law

Suing for Snooping – Privacy Intrusion Actionable in Ontario

Posted in Privacy
Barry Sookman

In Jones v. Tsige, the Court of Appeal for Ontario recently ruled that there is a tort of “intrusion upon seclusion” in this province and awarded $10,000 in damages to a woman whose banking records were surreptitiously accessed by a fellow employee.

Is there is a Tort of Inclusion upon Seclusion in Ontario? Adapting the Law to the Digital Age

In its reasons, the Court of Appeal reflected on technological change and its impact on privacy. In particular, it noted that Internet and digital technology have changed the way we capture, store and retrieve information – we are storing more sensitive information in readily accessible electronic form, which poses a threat to privacy. The court reasoned that recognition of a tort of intrusion upon seclusion “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.”

What is the Test for 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.

According to the court, the key features of this cause of action are:

  1. the defendant’s conduct must be intentional (or reckless)
  2. the defendant must have invaded the plaintiff’s private affairs or concerns, without lawful justification
  3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish

The court also ruled that, to succeed in a claim for damages for intrusion upon seclusion, the plaintiff need not establish any pecuniary loss. Also noteworthy is the fact that the cause of action:

  • is limited to claims for “deliberate and significant invasions of personal privacy”
  • only applies to “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”
  • will be balanced against any competing protections (e.g., freedom of the press and freedom of expression)

How Should Damages be Calculated?

The court stated that, where there is no proof of economic harm, damages should range up to $20,000. The court did not exclude the possibility of an award for aggravated or punitive damages.

The court then set out the following factors to consider in determining the size of the award:

  1. the nature, incidence and occasion of the defendant’s wrongful act
  2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position
  3. any relationship between the parties
  4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong
  5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant

Applying those factors to the facts in this case, the court awarded the plaintiff damages in the amount of $10,000, based on the fact that the intrusion was deliberate and repeated which upset the plaintiff but which did not result in any public embarrassment.

(The decision includes two very helpful appendices setting out damage awards in previous privacy cases.)

What are the Implications of this Decision?

This decision will be of particular concern for companies in the banking, collections, credit reporting, and health care sectors, which deal in sensitive personal information.

The decision could result in an increase in privacy litigation and, in particular, privacy class actions (as proof of pecuniary damages is not a requirement of the tort).

Further Reading

For more detailed analysis from our lawyers on this significant privacy decision, read: