Banking your secrets just got safer - invasion of privacy tort recognized

January 20, 2012

On January 18, for the first time, the Ontario Court of Appeal in Jones v. Tsige explicitly recognized the tort of invasion of personal privacy. In July 2009, Sandra Jones discovered that her co-worker, Winnie Tsige, had been surreptitiously viewing her bank records for four years. Although Jones did not know or directly work with Tsige, Tsige and Jones’ ex-husband were in a common-law relationship. As an employee of the Bank of Montreal (where Jones maintained her primary bank account), Tsige had full access to Jones’ banking information. Contrary to the bank’s policy, Tsige accessed Jones’ banking records at least 174 times. Sharpe J.A. allowed the appeal, ruled that Tsige committed the tort of “intrusion upon seclusion” and granted Jones $10,000 in damages.

The Court of Appeal defined the tort “intrusion upon seclusion”:

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 Court noted that proof of actual loss is not required and gave examples of private matters that can objectively be described as highly offensive: one’s financial or health records, sexual practices and orientation, employment or private correspondence. Tsige was able to access Jones’ banking transaction details, as well as personal information such as date of birth, marital status and address.

Despite the absence of any statutory private right of action between individuals in Ontario (unlike in a number of other Canadian, American and Commonwealth jurisdictions), privacy has long been recognized as an important underlying and animating value of various traditional common law causes of action to protect personal and territorial privacy. The Court pointed to the explicit recognition of a right to privacy underlying certain Charter rights and freedoms, and to the principle that the common law should be developed in a manner consistent with Charter values in choosing to expand the common law.

According to the Court,

[i]t is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

Sharpe J.A. ruled that damages for intrusion upon seclusion in cases where the plaintiff has suffered no monetary loss should be modest but sufficient to mark the wrong that has been done. He fixed the range at up to $20,000 on a sliding scale loosely based on factors including the nature of the wrongful act, the effect on the plaintiff’s health, social, business or financial position, any relationship between the parties, any distress, annoyance or embarrassment suffered, and the conduct of the parties including any apology made by the defendant. In the present case, since Tsige’s actions were deliberate and arose from a complex web of domestic arrangements likely to provoke animosity and did, but Jones suffered no public embarrassment or harm to her health, social, business or financial position and Tsige apologized for her conduct, the mid-point of the range was chosen.

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