Case Law: Jones v Tsige, The Ontario Courts recognise a privacy tort – Hugh Tomlinson QC

In a judgment handed down on 18 January 2012, the Court of Appeal in Ontario recognised, for the first time, that the common law of Ontario included a free-standing tort of intrusion on seclusion.  In Jones v. Tsige (2012 ONCA 32) the Court overturned the decision of the first instance judge striking out the claim on the basis that there was no tort of invasion of privacy in Ontario.  The Court of Appeal allowed the appeal and entered judgment for the plaintiff with damages of Can$10,000. 

Facts

The defendant, Winnie Tsige, was a bank employee, who involved a dispute with her former partner, who was the plaintiff’s former husband.  Over a four year period she accessed the plaintiff’s banking records more than 174 times.  The accessed information included not only transaction details, but also address, date of birth, and marital status.  No information had been published, distributed, or recorded by the defendant in any way.  However, access to the banking records allowed the defendant to determine whether—and how much—child support was being paid between the former spouses.

The plaintiff brought a claim for invasion of privacy, seeking general and exemplary damages and an injunction.  The first instance judge decided that no tort of invasion of privacy existed at common law in Ontario (2011 ONSC 1475).  The plaintiff appealed.

Judgment

The judgment of the Court of Appeal was given by Sharpe JA (with whom Winkler CJO and Cunningham ACJ agreed).   He began by considering the Dean Prosser’s classic division of privacy torts into four torts

1.      Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

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, for the defendant’s advantage, of the plaintiff’s name or likeness.

See William Prosser, Law of Torts, 4^th ed. (West Publishing Company, 1971) at p. 808-12.

Any right of action in the present case fell under the first category [21].

He then proceeded consider the case law from Ontario and other Canadian jurisdictions, as well as the United States, England and Wales, Australia and New Zealand.

The Judge noted that Ontario had accepted the existence of a tort claim for appropriation of personality and that the possibility of a tport of intrusion on seclusion had not been ruled out.  The matter had not been definitively ruled on in other provincial jurisdictions.

However, value of privacy was clear a “Charter value”.  The Supreme Court of Canada has held that s.8 affords constitutional protection of a person’s reasonable expectation of privacy (see: Hunter v. Southam, [1984] 2 SCR 145).  While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasions to develop the common law in a manner consistent with Charter values [45].

Sharpe J noted in passing the that English tort of misuse of private information protected privacy interests that “would easily fall within the intrusion upon seclusion category” [62]

The conclusion of this review of the case law and legislation was that it was appropriate for the Court of Appeal to confirm the existence of a right of action for intrusion upon seclusion [65] noting that

“For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of “the pressing need to preserve ‘privacy’ which is being threatened by science and technology to the point of surrender” … The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message” [67]

It was also noted that the court was presented with “facts that cry out for a remedy” [69].

The elemnets of the tort were adopted from the US Restatement of Torts and were summarised as follows

” The key features of this cause of action are, first, 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”. [71]

The Judge siad that, given the intangible nature of the interest protected damages would ordinarily be measured by a modest conventional sum and it was “only 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” [72].

Finally, the Court considered the Canadian case law on damages for invasion of privacy and breach of confidence, identifying five factors which provided a “useful guide” in to assist in determining the level of damages

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. [87]

The judgment contains useful Appendices setting out Ontario damages awards and those made under privacy legislation.

On the facts of the case, the tort was made out – the intrusion was intention and it would be highly offensive to the reasonable person.  In determining the level of damages the Judge said

“Favouring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000″

No award of aggravated or punitive damages was made.

Comment

The recognition of a common law privacy tort in Canada’s largest province is another significant milestone in the development of this area of the common law.  In the absence of legislative intervention, common law judges have again felt it necessary to provide a remedy for a manifest wrong.

The common law has been slow to develop in this area.  The US version of the tort, mentioned in this judgment, has taken only very slowly influenced jurisdictions.   Before this judgment, the position was that the tort was clearly recognised only by the Courts of New Zealand have recognised such a tort (see, in particular, Hosking v Runting [2005] 1 NZLR 1).

The contrast with the position in England is interesting.  The English common law only developed a privacy tort under the impetus of Article 8 of the European Convention on Human Rights.  The “elements” of the US tort of intrusion on seclusion were not adopted.  Consistently with European jurisprudence, the English courts have favoured a threshold requirement of a “reasonable expectation of privacy” rather than of being “highly offensive”.   This is because:

“First, the ‘highly offensive’ phrase is suggestive of a stricter test of private information than a reasonable expectation of privacy. Second, the ‘highly offensive’ formulation can all too easily bring into account, when deciding whether the disclosed information was private, considerations which go more properly to issues of proportionality; for instance, the degree of intrusion into private life, and the extent to which publication was a matter of proper public concern. This could be a recipe for confusion” (Campbell v MGN [2004] 2 AC 457 [22], Lord Nicholls).

This approach remains controversial – with some commentators suggesting that it places the bar too low – but it does helpfully separate the “stages” of the assessment as to whether there is an actionable invasion of privacy.

Despite the differences in approach, the Jones v Tsige case is of considerable interest to English lawyers.  It seems likely that other Canadian provinces will follow the lead of the Ontario Court of Appeal and that gradually a valuable corpus of case law will be built up.

Other comments on the case include:

“Ontario recognises tort of invasion of privacy” – Canadian Privacy Law Blog.

“Intrusion on Seclusion in Jones v Tsige: the value of privacy and the difficulty of erecting fences” The Court Blog

“New personal privacy tort in Ontario – what are the implications?“, Lexpert Magazine blog

“Banking your secrets just got safer – invasion of privacy tort recognized” Canadian Technology & IP Law

“Ontario recognizes privacy tort of intrusion upon seclusion” Barry Sookman

“Ontario Court of Appeal awards damages for invasion of personal privacy” James Gannon

“Suing for Snooping – Privacy Intrusion Actionable in Ontario” sniIP/ITs blog