First presented at MB's Privacy and Investigations Seminar on December 17, 2013
a. Overview of case
The facts of Jones v Tsige are fairly straightforward: the plaintiff and the defendant both worked for the Bank of Montreal, albeit at different branches. They also were, at one time or another, involved with the same man; the plaintiff had been married to him previously, while the defendant was common law married to him at the time of the incident. Despite these intersecting facts, the plaintiff and the defendant did not know each other personally.
The defendant, making use of her access as an employee of the bank, accessed the plaintiff's banking information some 174 times. The defendant claimed that it was to monitor whether or not her common law husband was making child support payments to the plaintiff as he should have been; however, the timing of her various activities, snooping into the plaintiff's banking information, did not align with this defence.
The plaintiff brought suit for invasion of personal privacy.
In responding to the contention that a complaint through PIPEDA's mechanisms, the ONCA replied that "PIPEDA is federal legislation dealing with "organizations" subject to federal jurisdiction and does not speak to the existence of a civil cause of action in the province."1
Furthermore, the plaintiff would have had to bring suit against the bank, and not the defendant, in order to be compliant with the PIPEDA guidelines, and as the defendant acted contrary to the bank's employee guidelines, this could have acted as a complete defence for the bank against the plaintiff's allegations.
The ONCA looked at the history of the case law in Canada, as well as in other jurisdictions such as the United States and the United Kingdom, and determined that, especially considering the growing privacy concerns in the electronic age, the common law had been moving for some time towards a tort remedy for those whose privacy has been breached.
Citing to William L Prosser's article, "Privacy," the court outlined the four privacy torts he had envisioned:
- Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.2
The case at hand was one wherein the defendant had intruded upon the plaintiff's seclusion, solitude, or private affairs. Three elements were identified as the constituent elements of the tort:
- The conduct of the defendant was intentional, or reckless;
- The defendant invaded, without lawful justification, the plaintiff's private affairs or concerns; and,
- A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.3
The court was at pains to point out that economic loss was not a requirement of the tort, and that given this; damages for the tort ought to be modest. The quantum for any damages available under the tort of ‘invasion upon seclusion' was capped at $20,000.
In the present case, the court awarded the plaintiff with damages in the amount of $10,000 as the defendant "committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of [the plaintiff]. These acts satisfy the elements laid out above: the intrusion was intentional, it amounted to an unlawful invasion of [the plaintiff's] private affairs, it would be viewed as highly offensive to the reasonable person, and caused distress, humiliation or anguish."4
b. Cases applying tort of intrusion upon seclusion
Since Jones v Tsige, the courts have applied its principles, or at least referred to the ratio, in various circumstances some nineteen times.
In Action Auto Leasing & Gallery Inc v Gray, [2013] OJ No 898, involving a dispute regarding a vehicle lease, the court interpreted Jones v Tsige as approving of all four of Prosser's proposed privacy torts and awarded $100.00 as a set-off for information provided by the plaintiff to the defendant's mother that the car lease was in default.
Outside of Ontario, in the Nova Scotia case of Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245 for example, the principles enumerated in Jones v Tsige have been applied. In that case, primarily a defamation case regarding blog posts and doctored photos posted online, the court opened up the possibility that an award could be made for invasion of privacy in Nova Scotia. No damages were awarded as there were no arguments made by the parties regarding freedom of expression and any potential restrictions a damage award would place on it.
As the case already has an established and growing body of cases referring to the principles it enumerated, it is clear that the common law has embraced the ratio of Jones v Tsige and the coming years will see the jurisprudence in the area of the right to privacy expand.
1 Jones v Tsige at para 50
2 Jones v Tsige at para 18
3 Jones v Tsige at para 71
4 Jones v Tsige at para 89
Topic 1 - Ontario Privacy Laws for Lawyers
Topic 2 -
Overview of PIPEDA
Topic 3 - Tort of intrusion upon seclusion (Jones v Tsige)
Topic 4 - New CASL legislation
Topic 5 - Key privacy cases for consideration |
