Ontario Court Of Appeal Recognizes New Privacy Tort

Author:Ms Cathy Beagan Flood, Nicole Henderson, Iris Fischer and Pei Li
Profession:Blake, Cassels & Graydon LLP

Copyright 2012, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Privacy, Litigation & Dispute Resolution, February 2012

In a landmark decision, the Ontario Court of Appeal has recognized the existence of a tort of invasion of privacy in a decision released January 18, 2012. In Jones v. Tsige, the court confirmed that a type of invasion of privacy known technically as "intrusion upon seclusion" is a valid cause of action in Ontario, and granted summary judgment in favour of the plaintiff, whose privacy had been invaded by the actions of the defendant.

The implications of the development of a privacy tort on class actions will also be an important issue as the law develops. Previously, the fact that federal Canadian privacy law requires a complaint to the Privacy Commissioner before any application for damages, and requires that such an application be brought in Federal Court (as opposed to provincial courts) had limited the availability of class actions. With the court's decision, plaintiffs' counsel are likely to bring more privacy class actions.

Facts and judicial history

Both parties in this case were employees at a Canadian bank. Although they had never met, the defendant (Tsige) was involved in a relationship with the plaintiff's (Jones) former spouse. It was not disputed that the defendant had improperly accessed the plaintiff's personal banking records at least 174 times over a period of four years, contrary to bank policy. The defendant claimed that she was involved in a financial dispute with the plaintiff's former husband and accessed the accounts to confirm whether he was paying child support to the plaintiff, but she did not publish, distribute or record the plaintiff's banking information. The plaintiff commenced an action against the defendant, alleging (among other things) invasion of privacy.

The parties each brought competing motions seeking summary judgment. The motion judge dismissed the plaintiff's claim on the basis that Ontario law did not recognize a tort of breach of privacy. The plaintiff appealed to the Court of Appeal.

New tort

Justice Sharpe, writing for a unanimous Court of Appeal, reviewed case law in Ontario and concluded that the courts have remained open to the possibility of there being a common law tort of invasion of privacy, although it had never previously been recognized by an appellate court.

The court also noted that causes of action relating to privacy have been recognized in...

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