While British Columbia, Saskatchewan, Manitoba and Newfoundland all have general privacy legislation creating a statutory tort or civil right of action for invasion of privacy (see Business Law Blog publication at http://www.businesslawblog.ca/tag/tort/), most other Canadian jurisdictions do not have comparable legislation although they may have some statutory administrative schemes that govern and regulate privacy issues and disputes in more specific contexts. Having said this, in these other jurisdictions, absent a specific applicable statutory scheme to protect one’s privacy rights, a claimant may be without a remedy for invasion of her privacy unless she can successfully establish the existence of a common law right to bring a civil action for invasion of privacy. This is precisely what the Plaintiff, Sandra Jones, did in the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 (http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm), an appeal of the decision of the Ontario Superior Court of Justice.
While courts in British Columbia are not bound by decisions of courts in other provinces, the decision of the appellate court of another province, the Ontario Court of Appeal in this case, may be relied upon as persuasive in appropriate cases in British Columbia and other provinces. It is, in my view, a very useful decision which lends to the definition of the scope of privacy protection that may be afforded in provinces including those provinces with general privacy legislations such as British Columbia, since privacy is not defined in the legislations.
Further, the decision of the Ontario Court of Appeal, in this case, is a very well reasoned and thoughtful decision that comprehensively considers jurisprudence and legislation in other jurisdictions including some very authoritative academic literature on the subject which only adds to its persuasiveness. I note, in particular, the Court takes judicial notice of the technological change in society and the growing threat this change poses to individual privacy with the introduction of new methods of collecting and storing personal data and information that is highly accessible in electronic form. In this environment, I think, the court makes a persuasive case for “develop(ing) the common law in a manner consistent with changing society” by recognizing a common law cause of action for intrusion upon seclusion.
Firefox recommends the PDF Plugin for Mac OS X for viewing PDF documents in your browser.
We can also show you Legal Updates using the Google Viewer; however, you will need to be logged into Google Docs to view them.
Please choose one of the above to proceed!
LOADING PDF: If there are any problems, click here to download the file.