February 2012

Earlier this year, the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 confirmed the existence of a new tort of privacy, a cause of “action for intrusion upon seclusion”:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are:

• the defendant’s conduct must be intentional, within includes reckless conduct;
• the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns;
• a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

Proof of harm to a recognized economic interest is not required. However, given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be modest.

The court also emphasized that the types of intrusions covered are to be decided objectively:

Claims from individuals who are sensitive or unusually 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.

This new development in tort law is welcome as previous cases were unclear whether a tort of privacy actually exists in Ontario. Businesses which keep financial or health records should make their employees aware that such a tort of privacy exists and should take steps to further protect their customers’ information.