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All eyes on invasion of privacy tort

New cause of action will likely lead to claims against media

By Iris Fischer

March 23 2012 issue

[Kheng Guan Toh /]
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In a watershed decision, the Ontario Court of Appeal recently recognized the existence of a common law tort of invasion of privacy. The new cause of action — ​dubbed “intrusion upon seclusion” — ​is likely to lead to claims against the media. However, if developed in the way suggested by the Court of Appeal, its impact on how the media investigates and publishes stories that are in the public interest may be limited.

Facts and judicial history

In Jones v. Tsige, 2012 ONCA 32, both parties were employees at a Canadian bank. Although they had never met, the defendant was involved in a relationship with the plaintiff’s ex-husband. The defendant had accessed the plaintiff’s personal banking records at least 174 times over a period of four years, contrary to bank policy. The plaintiff commenced an action against the defendant alleging, among other things, invasion of privacy.

The parties both brought motions seeking summary judgment. The motion judge granted the defendant’s motion and dismissed the plaintiff’s claim, on the basis that Ontario law did not recognize a tort of breach of privacy. The plaintiff appealed to the Court of Appeal.

The Court of Appeal decision

Justice Robert Sharpe, writing for a unanimous appeal court, observed that for many years the existence of a common law tort of invasion of privacy in Canada has been uncertain. However, he concluded that Ontario case law suggested that courts have remained open to the possibility of the tort.

Justice Sharpe noted that causes of action relating to privacy have been recognized in the United States, Britain, Australia, and New Zealand, and that four Canadian provinces have already enacted legislation creating statutory causes of action for invasion of privacy. The Court also recognized that a right to privacy underlies certain rights under the Charter of Rights and Freedoms, and that the common law should be developed in a manner consistent with the Charter.

The Court went on to confirm the existence of a cause of action for intrusion upon seclusion, having three elements:

  • that the defendant’s conduct be intentional or reckless;
  • that the defendant have invaded the plaintiff’s private affairs or concerns without lawful justification;
  • that a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

It is not necessary for the plaintiff to prove any harm to his or her economic interests. It is also not necessary that the plaintiff’s personal information have been published or disseminated by the defendant, as the tort focuses on the act of intrusion upon the plaintiff’s private affairs, not on any subsequent use of the information.

The Court was careful to emphasize, however, that only “deliberate and significant invasions of personal privacy,” which would be viewed as offensive on an objective standard, will ground a cause of action. Accordingly, the Court suggested that only intrusion into highly personal matters, such as a person’s financial or health records, sexual practices and orientation, employment, diary, or private correspondence, will meet this standard.

The Court of Appeal imposed a cap of $20,000 on damages where the plaintiff has suffered no pecuniary loss. While not precluding punitive or aggravated damages awards on top of this amount in “truly exceptional” cases, the Court did not encourage them.

It found that the defendant had committed the tort of intrusion upon seclusion, and granted summary judgment in favour of the plaintiff. Damages were fixed at $10,000.

Implications for the media

In obiter comments, the Court of Appeal recognized that, in future cases, it may be necessary to reconcile the new common law right to privacy with other competing rights, including the Charter rights of freedom of expression and freedom of the press. In particular, the Court noted that no right to privacy is absolute, and that “many claims for the protection of privacy will have to be reconciled with, and even yield to, competing claims.” The Court suggested that the balance may tip in favour of the press where it is reporting on matters that are in the public interest.

Despite this, and despite the modest damages available, it can be expected that media outlets will see an increased incidence of plaintiffs relying on this new cause of action, likely in conjunction with defamation claims. The media will have to be careful that it only intrudes upon the kinds of personal matters identified in this decision when there is a clear public interest in doing so.

Further, the Court signalled that other torts relating to breach of privacy may be recognized in the future, and these may also have relevance to the media. Justice Sharpe observed that most U.S. jurisdictions have accepted the following classification of torts relating to invasion of privacy:

(1) intrusion upon seclusion;

(2) public disclosure of embarrassing private facts about the plaintiff;

(3) publicity which places the plaintiff in a false light in the public eye;

(4) appropriation of the plaintiff’s name or likeness.

In this case, the Court was clear that it was recognizing only “intrusion upon seclusion” as a new cause of action, although it found that the fourth, appropriation of personality, already exists in Ontario.

However, in accepting that the general right to privacy “embraces four distinct torts,” the Court has opened the door to litigation to establish the second and third torts in Ontario. These two torts appear to encompass public disclosure of private information, and could likely also be used in litigation against the media.

Iris Fischer is a member of the Media group in the Litigation and Dispute Resolution department at Blake, Cassels & Graydon LLP in Toronto.

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