The Ontario Court of Appeal in 2012 in the case of Jones v Tsige, has created a new cause of action or a basis for suing someone. The exotic title of this is called intrusion upon seclusion. The technical components of this new basis for suing someone civilly is:
- An intentional or reckless conduct on the part of the Defendant.
- An invasion of the Plaintiffs private affairs without lawful justification, and
- An invasion that a reasonable person would regard as highly offensive and that causes the Plaintiff distress, humiliation or anguish.
While this case is of great interest to experts in privacy law, it potentially has large ramifications for family law.The facts in Jones v. Tsige are based in a family law environment. Jones, was a customer at the Bank of Montreal. Ms. Tsige, worked at the Bank of Montreal and had a dispute with her common law spouse who had earlier been married to the Plaintiff, Ms. Jones. Tsige, rather than learning from her common law spouse how much support he was paying, without authorization, accessed Ms. Jones banking records. The bank became involved, and disciplined Ms. Tsige who apologized.
This fact situation has lead to the birth of a new basis upon which to sue someone, namely an intrusion upon seclusion, also known as the new tort for invasion of privacy.It is extremely common in family law circumstances, for a spouse to go rooting around in the private papers of the other, when a marriage comes crashing to an end. A relationship based upon absolute trust, quickly changes into one of absolute distrust and disbelief. Emails are intercepted, private records and letters are opened, all in an effort to discover evidence or to gain a factual upper hand. Lawyers must be careful in what they advise their clients as to what they can do and whether or not their advice may leave their clients or relatives open to an additional law suit for damages arising from an intrusion upon the other spouses seclusion. It will be interesting to see how this area of law evolves.
The Court of Appeal set some limits to ensure we realize that we are not in Kansas or the wild west of the other 49 United States. The court set an upper range of damages at $20,000.00 and in the Jones v Tsige case, it awarded damages of $10,000.00 and no costs. It would be prudent for lawyers, in the appropriate circumstances to add additional grounds of damages of intrusion upon seclusion. Another example of that is for intentional infliction of mental distress or assaults at the hands of the other spouse. For more information, please fee free to contact the family law group at Dale, Streiman Law LLP.