Privacy, like eating and breathing is one of life’s basic requirements
– Katherine Neville.
From an early age, we are taught by our parents, teachers and role models to respect another person’s right to privacy. We expect, in return, to receive that same respect from others. Unfortunately, it has become obvious that some people have not learned this very important life lesson. This could not be more evident than the case of Jones v. Tsige, 2012 ONCA 32 (Can Lii), a case which reached the Court of Appeal of Ontario.
In July 2009, Sandra Jones, an employee at the Bank of Montreal discovered that Winnie Tsighe, another Bank of Montreal employee, had been secretly looking at Sandra’s personal banking records. Sandra and Winnie both worked for the same bank at different branches. Sandra did not work with Winnie.
Winnie, however, had a more interesting story to tell. Although she did not know Sandra personally, she was involved in a common law relationship with Sandra’s ex-husband. For a period spanning four years, Winnie used her workplace computer to access information about Sandra’s personal bank accounts at least 174 times. The information included transaction details, as well as personal data, such as date of birth, marital status, and address.
Sandra became suspicious of access to her accounts and upon confrontation by the Bank, Winnie admitted she had accessed the information without any legitimate reason for doing so. She claimed that she was in a financial dispute with Sandra’s ex-husband and wanted to confirm whether or not he was paying child support. Winnie apologized for her actions and was suspended for one week without pay and lost her bonus.
Sandra brought a claim against Winnie claiming damages of $70,000.00 for invasion of privacy and breach of fiduciary duty along with punitive and exemplary damages of $20,000.00. At the first level of court, Sandra attempted to bring a motion for summary judgment, essentially asking the court for a damage award without the necessity of a trial on the basis there was no question her rights were breached. Winnie argued the action ought to be dismissed and was successful. Sandra appealed to the Court of Appeal.
The issue the court grappled with was whether or not Ontario law recognized a cause of action for invasion of privacy. Before this case, the law touched on the issue but never gave a concrete right of action for breach of privacy. It appears that Canadian case law has not ruled out a right to privacy but at the same time had not come out with a definitive right of action in any decision before this one. Similarly, Canadian legislators have not passed any independent privacy laws which would govern a situation such as the one in this case.
In rendering its decision, the Court of Appeal recognizes for the first time, an independent right of action for breaches of privacy which the Court coins the tort of intrusion upon seclusion. The elements of an action for intrusion upon seclusion include:
a) the person’s conduct must be intentional and/or reckless;
b) the person must have invaded, without legal justification, the other person’s private affairs or concerns;
c) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish;
As can be seen, it is not every intrusion into a party’s private life that would give rise to an action for the tort of inclusion upon seclusion but intentional offensive breaches which cause pain and suffering to the person whose privacy is being invaded. As the court stated:
recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or usually concerned about their privacy are excluded. It is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence, that viewed objectively on the reasonable person standard can be described as highly offensive .
As far as monetary damages for this newly recognized tort, the court only recognizes entitlement to a modest conventional sum. In this case, the court awarded Sandra $10,000.00.
This decision comes at a perfect time in an age of technological advancement. In a world where millions of people jump at the chance to divulge their deepest darkest secrets and private information to others through Facebook, Twitter, and Myspace, there are still people who want to keep their private information private. This case can protect these people from intentional serious and offensive invasions of their privacy by outsiders and those not entitled to that information.
We are blessed to live in a democracy where the government does not automatically have ownership rights to our private lives. We can pick and choose what we want to keep private from the outside world and what we share. We should embrace this decision as it recognizes and validates the fundamental right we ought to have to privacy.
The tort of intrusion upon seclusion is not without defences including those who will claim that there is freedom of expression and freedom of the press and there are some instances one needs to intrude on a person’s privacy. The court did not have to deal with a challenge or defence to the new tort created in this case but recognized that there can be no right to privacy that is absolute or unqualified.
It will be interesting to see what case law will follow and apply the decision in this case and to which type of situations it will apply. While the floodgates may not open as a result of this case, one can hope statutory reform will follow.
By: Shana Dale