As of Jan. 18, 2012, the Ontario Court of Appeal has concluded that Ontario law permits civil actions for damages for the invasion of personal privacy.
According to the court:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his or her private affairs or concerns, is subject to liability to the other for invasion of his or her privacy, if the invasion would be highly offensive to a reasonable person. (Restatement (Second) of Torts 2010))
Jones v. Tsige
The appeal court has just released its highly anticipated decision in Jones v Tsige, which held that an individual can now file a civil claim based on the tort of "intrusion upon seclusion."
In this case, one bank employee named Tsige was repeatedly looking into the bank records of another employee named Jones (Tsige had became involved with Jones' ex-husband). Jones sued, lost at trial and appealed. The Ontario Court of Appeal awarded her $10,000 for the tort of "intrusion upon seclusion."
Important development in the law
Previously, Ontario courts had held that there was no right to an independent claim based on invasion of privacy and that any privacy claims must be part of another claim, such as abreach of an employment contract that contained a privacy provision. Plaintiffs therefore required another underlying action in order to also address any privacy claims.
Furthermore, given that no privacy legislation applies to non-health related personal information in most private sector workplaces in Ontario, there has been a gap in the legislation as there was no legislative remedy available for employees.
Take-away for employers
Employees can now take claims of invasion of privacy directly to court. While Jones v. Tsige involves a claim between two employees, the decision has broad applications. Individuals can now sue other persons or their employers in cases involving invasion of privacy.
Despite the broad application of the new tort, the court also concluded that the cause of action "will not open the floodgates" and that the tort will only arise for deliberate and significant invasions of personal privacy. In cases where the plaintiff has suffered no pecuniary loss, the damages are fixed in the range up to $20,000, with aggravated and punitive damages available in only exceptional cases.
In light of this important development in the law, we recommend that employers consider whether their workplace policies, procedures and processes sufficiently address protection of privacy, now that individuals have direct recourse through the courts.
Jonathan Cocker is a partner with Baker & McKenzie in Toronto, leading the Environment and Environmental Markets Practice Group. He can be reached at (416) 865-6908 or firstname.lastname@example.org.
Lisa Stam is an associate with Baker & McKenzie in Toronto, practising in employment and administrative law litigation. She can be reached at (416) 865-6924 or email@example.com.