The Right to Privacy: Intrusion upon Seclusion

William Brennan, Articling Student

Last week, the Ontario Court of Appeal put to rest the debate over whether individuals had the right to sue over an invasion of their privacy in Ontario.  In Jones v. Tsige,2012 ONCA 32, the Court of Appeal clearly confirmed that the common law of Ontario now includes the tort of “Intrusion upon Seclusion”.  The Court noted the dramatic impact that technological changes have had on privacy in recent years and the necessity of protecting an individual’s privacy.  This new tort provides a remedy to individuals who have had their privacy intentionally violated.

The tort of Intrusion upon Seclusion protects individuals from an invasion of their privacy from any unlawful source. This has significantly expanded the scope of protection from that granted under the existing provincial legislation which only provided protection in specific circumstances.  Under the tort of Intrusion upon Seclusion damages can be awarded even though an individual has suffered no economic loss.

The Court of Appeal set out a three part test for proving the tort of Intrusion upon Seclusion.  Each element of the test must be satisfied in order for a court to award damages. The three elements of the tort of Intrusion upon Seclusion are:

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

It is noteworthy that a claim for Intrusion upon Seclusion can succeed where there has been no disclosure of the private information to third parties.  The intrusion itself is what satisfies the test.

The Court of Appeal made it clear that only deliberate and significant invasions of personal privacy would fulfill the test for Intrusion upon Seclusion. The Court of Appeal identified that an intrusion into one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence would be considered highly offensive.

The Court of Appeal reaffirmed the “reasonable person” test by stating that claims from individuals who are sensitive or unusually concerned about their privacy are excluded.  It will be interesting to see how this interacts with the Supreme Court of Canada’s ruling in Mustapha v. Culligan of Canada Ltd. 2008 SCC 27 where the Court held that in cases where the defendant had actual knowledge of the particular sensibilities of the plaintiff, then the “ordinary fortitude” requirement need not be applied.

In addition, the Court of Appeal established that in situations where the intrusion resulted in no economic loss there should be an upper limit of $20,000 for damages.  Although not stated in the case, it is implied that where there has been an economic loss the entire loss would be recoverable.  The Court set out five factors to be considered when determining the size of an award under the new tort. The factors apply to both situations where there has been economic loss and where there has been no economic loss. The five factors are:

  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, whether domestic or otherwise between the parties;
  4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
  5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

It will take some time for the full impact of the tort of Intrusion upon Seclusion to be understood. For example, while it is clear that the violator of an individual’s privacy can now be held responsible for their actions, it is not clear if an employer could be held vicariously liable for unauthorized intrusions by their employees.

We will be watching the courts for further developments.

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