The idea of privacy law: Jones v. Tsige and the limits of the common law.

• Author: Aylward, Stephen

ABSTRACT I INTRODUCTION II JONES V TSIGE Rationale for the Recognition of a New Tort The Scope of the New Tort of Intrusion Upon Seclusion III THE SEARCH FOR A COHERENT CONCEPT OF PRIVACY IV INVASION OF PRIVACY AND RECOVERY FOR MENTAL DISTRESS V PRACTICAL IMPLICATIONS AND LINGERING UNCERTAINTY IN THE BALANCING OF PRIVACY WITH OTHER VALUES VI CONCLUSION I INTRODUCTION

In Jones v Tsige, (1) the Ontario Court of Appeal recognized a new cause of action for intrusion upon seclusion. In recent years, debate over the existence of a common law privacy tort has been reignited among academics and the courts of commonwealth jurisdictions. With one important exception concerning the civil law of Quebec, (2) the absence of appellate authority on the law of privacy in Canada has been conspicuous. The decision in Jones has now filled this void with a sophisticated and thought-provoking discussion of the protection of privacy at common law. But the decision also raises important concerns about consistency in the development of the common law, as well as practical concerns regarding its potentially far-reaching effects on other values, such as freedom of expression.

This article is divided into six sections. Section II examines the decision itself. Section III shows how the rationales underlying the law of privacy provide an inadequate basis for judicial development of the common law. Section IV goes on to contrast the development of the law of privacy with the Supreme Court's reluctance to protect victims of intentionally inflicted mental suffering. Section V then examines the challenge of balancing the right to privacy against other values, with special reference to the case of journalists engaging in intrusive newsgathering activities. Section VI concludes.

II JONES V TSIGE

Winnie Tsige, the defendant bank employee, repeatedly accessed the personal financial records of Sandra Jones, the plaintiff, who was a fellow employee at a different bank branch. The parties did not know each other, but Ms. Jones happened to be the ex-wife of Ms. Tsige's boyfriend. (3) Ms. Tsige accessed Ms. Jones' financial records 174 times over a period of four years. (4) She did not reproduce or publish this information in any way. (5) After discovering what had happened, Ms. Jones brought an action alleging that Ms. Tsige's conduct breached her right to privacy.

The difficulty facing Ms. Jones was that although Canadian law protects privacy interests in a variety of ways, there was no clear basis in existing case law for a tortious action based on invasion of privacy. Privacy has repeatedly been recognized as an interest underlying various rights under the Charter, (6) in particular the section 7 right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice, (7) and the section 8 right to freedom from unreasonable search and seizure. (8) An eclectic combination of other causes of action--such as trespass, (9) nuisance, (10) and defamation (11)--have been employed in cases where they functionally served to protect privacy interests. (12) Yet none of these causes of action were a clear doctrinal fit to the facts in Jones. Ms. Jones had no proprietary interest on which to found a claim in trespass or nuisance. An action in defamation requires that information harmful to the plaintiff's reputation be published, (13) but Ms. Tsige did not publish Ms. Jones' financial records. Similarly, a claim in breach of confidence requires that the confidential information be disseminated to a third party, (14) and further requires a pre-existing relationship of confidence between the parties, (15) which was not the case between Ms. Jones and Ms. Tsige. Privacy is also protected by federal and provincial legislation in Canada; (16) however, the legislation applicable in Ontario does not create a right of action between private parties. To succeed in her claim, Ms. Jones needed to demonstrate that an autonomous invasion of privacy tort existed at common law in Ontario.

On a motion for summary judgment brought by Ms. Tsige, Whitaker J ruled that there was no cause of action for breach of privacy in Ontario. (17) Justice Whitaker considered himself bound by dicta in Euteneier v Lee, (18) an earlier Ontario Court of Appeal decision in which Cronk JA noted that counsel "properly conceded in oral argument before this court that there is no 'free-standing' right to dignity or privacy under the Charter or at common law". (19) Ms. Jones appealed.

At the Ontario Court of Appeal, Sharpe JA, writing for a unanimous court, reversed the motion judge's finding and held for Ms. Jones on a summary basis, awarding $10,000 in damages for breach of her privacy. In doing so, Sharpe JA recognized a new cause of action for intrusion upon seclusion. This recognition marked a significant departure from the traditional reluctance of the Anglo-Canadian common law to protect privacy as such, (20) in favour of the US approach that has long afforded a cause of action to plaintiffs whose privacy is invaded. (21)

RATIONALE FOR THE RECOGNITION OF A NEW TORT

Justice Sharpe wrote that Ms. Tsige's egregious conduct presented "facts that cry out for a remedy". (22) To fashion such a remedy, he considered privacy legislation, case law on privacy, values underlying the Charter, trends in foreign jurisdictions, and academic support for the recognition of a new tort.

There were two main arguments raised by the respondent against the recognition of a privacy tort. The first was that case law provided no support for such an innovation. The second was that the absence of a statutory cause of action in the privacy legislation represented a choice by the Ontario legislature that would be undermined by the judicial adoption of a new tort.

With respect to the first argument, Sharpe JA surveyed the patchwork case law in Ontario and other provinces on the issue of privacy. While there was no clear articulation of a common law tort of invasion of privacy, there were strands of jurisprudence that supported the view that such a tort was part of the common law. As discussed above, privacy interests had been protected in some cases through existing causes of action. There have also been judgments at first instance that awarded damages for violations of privacy, though the doctrine underlying these judgments was sometimes unclear. The most notable of these judgments is Saccone v Orr, (23) in which the defendant had surreptitiously recorded a private telephone conversation between himself and the plaintiff, and then played the recorded conversation at a council meeting. The defendant brought a motion to dismiss the action on the basis that it disclosed no cause of action. In finding for the plaintiff and awarding damages of $500, Jacob Co Ct J stated the following:

Certainly, for want of a better description as to what happened, this is an invasion of privacy and, despite the very able argument of defendant's counsel that no such action exists, I have come to the conclusion that the plaintiff must be given some right of recovery for what the defendant has in this case done. (24) In addition, other rulings refused to strike out claims for invasion of privacy, thus acknowledging the possibility that such a tort might exist. (25)

The most problematic case for Ms. Jones was Euteneier, the Court of Appeal case that the motion judge had taken to be dispositive of whether a tort of invasion of privacy existed at common law. (26) Justice Sharpe noted that the plaintiff in Euteneier had pleaded her case on the basis of negligence, assault, civil conspiracy, and breach of Charter rights. (27) As mentioned above, in Euteneier, Cronk JA noted in passing that the plaintiff had properly conceded in argument that there was no free-standing right to privacy. (28) Justice Sharpe interpreted this statement as referring in context to the plaintiff's case as pleaded rather than as a general statement on the law. On this interpretation, Cronk JA was remarking that it was proper for counsel to concede that there was no free-standing privacy tort because no such cause of action had been pleaded. (29) While this is a possible interpretation of Cronk JA's remark, it is a somewhat strained reading, especially when the passage is considered in its context:

But Euteneier properly conceded in oral argument before this court that there is no "free-standing" right to dignity or privacy under the Charter or at common law. For example, although respect for human dignity underlies many of the rights and freedoms in the Charter, it is not a principle of fundamental justice under s. 7 of the Charter. That said, it is well-established that the common law must be interpreted in light of Charter values when a constitutional challenge is brought to government action.... This extends to the interpretation of duties owed by the police to persons in custody following lawful arrest. (30) The passage taken as a whole seems to make a general observation about the law, rather than a technical point about pleadings. If the Court had merely been making a point about pleadings, there would have been no need for it to elaborate on the fact that dignity is not a principle of fundamental justice.

In any event, Euteneier was not binding on the Court of Appeal. While the Ontario Court of Appeal is generally bound by its own precedents, (31) the critical passage in Euteneier was a single sentence referring to a point conceded by counsel and was thus clearly obiter dicta. Such a brief remark on a point that had not been argued is clearly of limited persuasive force. (32) Euteneier was therefore not a serious obstacle to the recognition of a new privacy tort.

The second main argument on behalf of the defendant was that in enacting various privacy statutes, including PIPEDA (33) and FIPPA, (34) the federal and provincial governments had come to a considered opinion regarding the balance to be...