In Jones v Tsige, 2012 ONCA 32 reversing 2011 ONSC 1475, Justice Robert Sharpe of the Ontario Court of Appeal, writing for a unanimous three-judge panel, confirmed the existence of a right of action for intrusion upon seclusion. As E-TIPS® previously reported, the defendant (Tsige) worked at the Bank of Montreal and over a period of four years accessed and reviewed the banking records of the plaintiff (Jones) on 174 occasions for her own personal reasons. Tsige was involved in a dispute with Jones’ former husband and wanted to confirm whether he was paying child support to Jones. Jones sued Tsige for damages, based on invasion of privacy and breach of fiduciary duty. The trial court rejected the existence of a tort of invasion of privacy, and Jones appealed. After a thorough review of the relevant case law, Justice Sharpe confirmed that a right of action for intrusion upon seclusion exists in Ontario. The tort has the following elements, which are taken from the US Restatement (Second) of Torts (2010):
  • the defendant’s conduct must be intentional, within which is included reckless conduct;
  • the defendant must have 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.
Proof of harm to a recognized economic interest is not an element of the cause of action. Where there is no pecuniary loss, the damages are of a “symbolic” or “moral” nature which required the court to set a conventional range of damages. Justice Sharpe set the upper limit of the range to be $20,000, with the amount varying based on several factors that are listed in subsection 4(2) of The Privacy Act (Manitoba). He did not exclude, but did not encourage, awards of aggravated and punitive damages. In this specific case, damages were set at $10,000, although no costs were awarded because of the novel issues raised. The release of the decision has triggered a torrent of comment and analysis in the legal blogosphere, indicating that the common law can be both adaptable and controversial. Summary by: Tom Feather

E-TIPS® ISSUE

12 01 25

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