Serving Canada's Legal Community Since 1983  
RSS Feed RSS Feed
This Week's Issue:

Want to learn more about this week's issue?

Legal Update Services

Click on the links above to view recent decisions from the Supreme Court of Canada and summaries for noteworthy cases from across the country.

The tort of invasion of privacy
By Joseph Griffiths

July 08 2011 issue

[Devonyu /]
Click here to see full sized version.

Please contact us at
Please include your name, your law firm or company name and address.

Between the constant barrage of headlines describing ever more brazen and successful computer attacks, the largest of which compromised the personal account information of 100 million users at once, to reports that fully 56 per cent of the most popular non-social media websites “directly leak pieces of private information,” it is increasingly apparent that the need to protect and enforce privacy rights is escalating.

Unfortunately, while the headlines might make it obvious that privacy has to be safeguarded, the legal mechanism for doing so isn’t. In fact, the clear challenge facing a lawyer who is retained by a client whose privacy has been breached is finding a legal remedy in a system that, in many respects, has yet to mature and bridge the gap created by the mass centralization and corresponding exploitation of personal and private information.

That is particularly true in Ontario where, unlike other provinces that allow an individual to claim the benefit of a statutory tort for the invasion of privacy, often without proof of damages, there is no legislative equivalent. Instead, the courts had been inching ever closer to recognizing an independent common law tort for the invasion of privacy or, at the very least, had seemed prepared to suspend the usual procedural hurdles that might have precluded such causes of action from being advanced, most notably by refusing to strike out such claims at the early stages of pleading.

However, with the release of Jones v. Tsige, [2011] O.J. No. 1273 by the Ontario Superior Court of Justice, the debate over the right to sue for an invasion of privacy seems to be over, at least for now. The facts in Jones are not complicated. The plaintiff and defendant both worked at different branches of the Bank of Montreal (BMO) and the plaintiff did all her banking with BMO. Over the course of four years and on 174 occasions, the defendant accessed and reviewed the plaintiff’s private banking records. She was caught, apologized and was disciplined by BMO. The plaintiff sued the defendant for her conduct, alleging that Tsige had committed the tort of invading her privacy. Each party moved for summary judgment.

After considering the various authorities and the meandering development of the invasion of privacy tort, Justice Whitaker concluded that there is no such tort in Ontario. His decision was heavily influenced by what appears to be a passing reference to individual privacy rights made in obiter by the Court of Appeal in Euteneier v. Lee, [2005] O.J. No. 3896. There, the court commented that “Euteneier 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.”

While this reference to privacy is certainly provocative, there is no indication that the court had been asked to rule on whether there is, in fact, a common law tort for the invasion of privacy. Instead, Euteneier sued the police for negligence, assault, civil conspiracy and breach of her Charter rights after she was handcuffed naked to the bars of her cell.

At trial, the judge dismissed her claim on the grounds that the police acted reasonably in carrying out their duties. The issue raised by the plaintiff on appeal was whether the trial judge neglected to interpret the duties imposed on the police in view of the plaintiff’s privacy and dignity interests. Although the court dismissed her appeal, it did not do so on the grounds that Euteneier was precluded from advancing a claim for the protection of her privacy interests. Rather, the court simply affirmed that, in the circumstances of that case, the police had taken reasonable steps to do so.

But even if the reference by the court to a concession made by legal counsel in the course of argument could be viewed as “binding,” as held by Justice Whitaker, it is doubtful that the reference is dispositive of the invasion of privacy issue. On the contrary, in Euteneier, the court went on to find that the “common law must be interpreted in light of Charter values when a constitutional challenge is brought to government action.” This seems to suggest that the court did not intend to close the door on breach of privacy claims.

The more troubling problem for lawyers resulting from Justice Whitaker’s decision is the gap it has created for those clients who find their privacy violated by individuals who are not otherwise covered by existing privacy legislation. Although Justice Whitaker appears to have been satisfied that Jones could seek relief for the breach of her privacy under the federal Personal Information Protection and Electronic Documents Act (PIPEDA), that finding seems tenuous given the limitations of PIPEDA and similar legislation. In that regard, even if BMO could have been sanctioned for the conduct of a rogue employee, the application of PIPEDA would not have resulted in any sanction to the defendant herself.

Effectively, the impact of Justice Whitaker’s decision is to bar a wronged plaintiff from obtaining a meaningful remedy where the conduct complained of is perpetrated by an individual acting alone. And while there may be other causes of action that are available to a plaintiff to address a breach of privacy (i.e. an action in negligence or the like), there will be situations where a plaintiff, like Jones, will be unable to make out the core elements of a negligence action, and in particular, will be unable to prove the requisite damages.

Recognition by the courts of an intentional common law tort for invasion of privacy would relieve the burden of having to prove specific damages. That feature is essential to the survival of a breach of privacy action, where damages are typically difficult to quantify and the harm suffered by a plaintiff is intrinsic to the wrongful conduct in much the same way as a person who suffers a battery.

Unfortunately, until the Court of Appeal renders a decision in Jones, advancing a claim for an invasion of privacy will prove problematic. Until the law is clarified, the practitioner advising a client will have to find a way to fit within the rubric of PIPEDA or similar legislation.

Joseph Griffiths is a litigator with the Ottawa office of Flaherty Dow Elliott & McCarthy.

Click here to see this article in our digital edition (available to subscribers).

Back      Print This Article