Jones v. Tsige - Ontario's New Common Law of Invasion Privacy
In the age of electronic information it is easier than ever, for those so inclined, to snoop into our private lives and access some of our most personal information. This year, in Jones v. Tsige, 2012 ONCA 32, the Court of Appeal held that, in addition to provincial privacy legislation, there is now a common law against invasion of privacy (a.k.a. “intrusion upon seclusion”).
In that case, Jones and Tsige were employees at different branches of the same bank. Tsige secretly accessed Jones’s personal financial information at least 174 times over four years. Tsige was ordered to pay Jones $10,000 in damages, even though Tsige did not distribute the information and Jones did not suffer any monetary loss or tangible harm.
Unlike Ontario’s privacy legislation, the new tort of “intrusion upon seclusion” provides a direct remedy against those who deliberately access another’s private information. While it is not necessary to prove damages, the tort is limited to significant invasions of privacy, such as intrusions into financial information, health records, sexual practices and orientation, employment, diaries or private correspondence. In order to be successful, a plaintiff must prove:
that the defendant intentionally or recklessly;
invaded, without legal justification, the plaintiff’s private affairs or concerns; and
a reasonable person would consider the invasion highly offensive, causing distress, humiliation or anguish.
However, as with the right to privacy guaranteed by the Charter, invasions of privacy may be justified where there are competing rights, such as freedom of expression and freedom of the press.
Whether this new common law right to privacy will gain traction remains to be seen. A significant limitation is that the Court of Appeal fixed the range for damages for non-monetary loss at up to $20,000. Aggravated and punitive damages will only be awarded in exceptional cases. As a result, many claims will likely fall under the jurisdiction of the Small Claims Court. This means many plaintiffs looking to enforce their new privacy rights are likely to be self-represented.
In the end, the lesson from Jones v. Tsige is simple: no snooping allowed.