Privacy rights getting clearer - Tort recognized for first time

For the London Free Press - March 5, 2012 - Read this on Canoe The Ontario Court of Appeal just released its decision in Jones v Tsige, recognizing for the first time there is a tort of invasion of privacy in Ontario.

The gist of the facts in Jones was a bank employee looked up banking information about another bank employee who was in a common-law relationship with the defendant's former husband. She looked at the information at least 170 times over four years, but didn't publish, distribute or record it.

That was clearly contrary to bank policy and privacy legislation, and she was disciplined for it by the bank when it came to light.

The issue in this case was whether the victim could sue for damages. The Court of Appeal decided she could, awarding $10,000 in damages.

Until this decision, it was generally felt one couldn't sue or collect damages for breach of privacy in Ontario.

Previous Ontario trial-level decisions concerning the existence of a tort of invasion of privacy were at best conflicting with the historic, if not conventional, view the tort of invasion of privacy did not exist.

The Jones decision stated that:

It is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

"Intrusion upon seclusion" happens when one intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, in a situation where the invasion would be highly offensive to a reasonable person.

Leading up to this decision, a number of judges at the trial level had refused to strike out claims made under the tort of invasion of privacy at the pleadings stage, as they were unsure if the tort existed.