Cause of Action for Invasion of Privacy Recognized in Ontario

In Jones v. Tsige, the Ontario Court of Appeal recognized the right to bring a civil action for damages for invasion of personal privacy.

Two employees of the Bank of Montreal, Sandra Jones and Winnie Tsige, worked at different branches of the bank and did not know each other. However, Tsige had formed a common-law relationship with Jones’ former husband.

In 2009, Jones discovered that, despite the bank’s policy against doing so, Tsige had surreptitiously looked at her banking records on numerous occasions, with no legitimate reason for doing so. Tsige had thereby gained access to a variety of information contained in Jones’ banking records, including transaction details and personal information including her date of birth, marital status and address. Although Tsige did not record, publish or distribute any of the information, she nevertheless accessed the account information more than 174 times over the course of four years.

When Jones raised her suspicions that her account was being accessed, the bank confronted Tsige, who explained that she was involved in a financial dispute with Jones’ former husband and simply wished to confirm that he was paying child support to Jones. Tsige recognized that what she had done was contrary to the bank’s Code of Business Conduct and Ethics, as well as her professional responsibility. She apologized for her actions and ceased looking at the account information. The bank responded by disciplining Tsige, suspending her from work for one week and denying her bonus.

However, Jones brought a claim against Tsige, alleging that her privacy interest in her confidential banking information had been “irreversibly destroyed”. She claimed damages in the amount of $70,000 for invasion of privacy and breach of fiduciary duty, as well as punitive and exemplary damages in the amount of $20,000.

Jones sought to have the case dealt with by way of summary judgment, and Tsige brought a cross-motion for summary judgment to have the action dismissed.

The motion judge determined that Tsige did not owe Jones a fiduciary obligation and dismissed that claim. With respect to invasion of privacy, the motion judge concluded that there is no “free-standing” right to privacy under the Canadian Charter of Rights and Freedoms or at common law, and Jones’ case was dismissed.

Jones appealed to the Ontario Court of Appeal, which allowed her appeal and awarded her $10,000 in damages.

In its decision, the Court first addressed the notion of “informational privacy” or, the claim of an individual, group or institution to determine for themselves when, how, and to what extent information about them is communicated to others. The Court determined that such a characterization would include Jones’ claim to privacy in respect of her banking records.

The Court then addressed the Charter argument, explaining that the right to privacy has been accorded constitutional protection, and that an attempt has been made by the courts to ensure that the common law develops in a way that is consistent with the Charter. The Court found that this supported the recognition of a civil action for damages for intrusion upon Jones’ privacy.

On the basis of the jurisprudence and legislation, the Court of Appeal chose to recognize the tort of “intrusion upon seclusion” and adopted the following criteria:

The plaintiff must show:

1. an unauthorized intrusion;

2. that would be highly offensive to a reasonable person;

3. upon a private matter; and,

4. that caused anguish and suffering.

This decision will likely have major implications across Canada, given that it has recognized a new common law tort: intrusion upon seclusion. Further, despite the fact that this case involved an action between two employees, the decision will have important implications for employers, particularly in Ontario. Employers may wish to exercise increased caution in respect of activities such as video surveillance of employees and computer monitoring, as these actions may give rise to a claim for damages on the basis of an intrusion upon employees’ seclusion.