Ontario’s New Privacy Tort: A Mere Breach Triggers Damages

  
By Justin McNeil, Senior Editor

Ontario acknowledges a new cause of action under its tort law: invasion of privacy.  The new tort does not require the plaintiff to show that the private information was published or that any actual monetary damages resulted from the breach of privacy before it can be brought.  This surprising development reflects the untidy nature of common law privacy torts in Canada, a feature shared by many common law jurisdictions.  Agree or disagree, the decision shows the major role courts will play in defining and enforcing privacy rights in today’s technology-saturated age not only in Canada, but throughout the globe. 

An American Bar Association article from earlier this year summarizes the findings of the Ontario Court of Appeal in a judgment that may have far reaching implications.  The case, Jones v. Tsige, sets a groundbreaking new precedent for tort law in which a civil cause of action for an invasion of privacy, standing alone, is specifically recognized in Canada.   

In Jones v. Tsige, the defendant repeatedly accessed the plaintiff’s banking records and personal information (both the plaintiff and defendant worked at the same bank, but in different branches), though she did not publish anything.  Nevertheless, the plaintiff brought a tort action that sought remuneration for the loss of her privacy in confidential bank records in addition to punitive damages. 

The Canadian court looked to principles of common law in England, the U.S., New Zealand, and Australia in addition to existing Canadian laws in reaching its holding.  The Canadian Charter of Rights and Freedoms was also underscored as a primary influence in crafting a distinct recognition of the legal right to privacy that expands the previous conceptions to include “informational privacy.”  Ultimately, the court used the same elements that form the legal action of intrusion upon seclusion, as expressed in the American Restatement (Second) of Torts, to reach its recognition of the new invasion of privacy tort.  Specifically, that cause of action requires:

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.    

The elements of the new invasion of privacy tort laid out by the court track the intrusion upon seclusion language very closely, requiring: 1) intentional or reckless conduct by the defendant; 2) an invasion of the plaintiff’s private affairs by the defendant without legal justification for doing so; and 3) a reasonable person would find such an invasion highly offensive “causing distress, humiliation, or anguish.”  Jones v. Tsige.

The court did express concern over the possible flood of litigation this result may engender.  However, there was no actual monetary loss for which to compensate the plaintiff here.  Considering this, the actual damages awarded in the case were only C$10,000.  The court went on to set a limit on damages where no pecuniary loss has been shown at a maximum of C$20,000, somewhat dampening fears of excessive litigation and helping disincentivize frivolous suits.

This article also points to specific implications the decision will have for the media, including defending against more tort claims than ever before under the new invasion of privacy cause of action.  Another issue it acknowledges is how this new right to privacy will fare when balanced directly against the rights of the press in Canada, which are also enshrined in the Charter, and a possible journalistic exception to the tort for matters pertaining to the public interest.

By way of comparison, it’s important to note that Australian common law does not recognize a privacy tort, and some like it that way.  In England, privacy law—besides the truly historic breach of confidence tort—is still relatively new (building off principles in the 1998 UK Human Rights Act).  By this measure, the United States looks like a privacy tort leader, but even there the common law is building largely from a law review article written in 1890.  Critically though, America has been called “a worldwide leader in private-sector privacy information.”  Id.  So, the real question is: will other countries’ common law privacy torts catch up to the standard set by this new Ontario law, or will statutory attempts be made to protect privacy?  And it remains to be seen which avenue will ultimately prove more helpful to individuals and consumers who, in this technology-saturated age, likely have considerable information they wish to keep private.

Regardless of the relative hurdles yet to overcome and limitations placed upon the exercise of this new tort, the mere recognition of it as a substantial right by a single jurisdiction may pave the way for others in common law countries to do the same.  The law must continue to progress in a manner that recognizes the extent to which technology has fundamentally altered the ways we conceive of some of our most basic rights.  Technological prevalence in our society is only set to increase in the future, and questions over its reach and the further protection of privacy will only grow.  Decisions such as this set a bold precedent and help to ensure the relevancy the law will have in the ongoing debate.