Time to Recognize Invasion of Privacy as a Tort, Says Ontario Court

While some Canadian provinces (BC, Saskatchewan, Manitoba, Quebec and Newfoundland) have enacted statutory torts of invasion of privacy, Ontario has not. Nevertheless, a judge of the Ontario Superior Court recently concluded that the time has come to recognize invasion of privacy as a common law tort in that province. The plaintiff, Somwar, employed as a restaurant manager by the defendant, McDonald's Restaurants, sued his employer alleging that it had unlawfully invaded his right to privacy by conducting a credit bureau check on him without his permission. The defendant moved to dismiss the action on the ground that the statement of claim disclosed no reasonable cause of action. Justice Stinson surveyed provincial jurisprudence and concluded that, absent any clear statement by an Ontario appellate court on whether provincial law recognized a tort of invasion of privacy, it cannot be settled that there is no tort of invasion of privacy. The Court also reflected that while the Canadian Charter of Rights and Freedoms (Charter) does not apply to disputes between private individuals, the common law should develop incrementally in accordance with Charter values, which supports finding a common law right to privacy in civil matters.

"With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual's personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual's privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence."

For the full text of the case (Somwar v McDonald's Restaurants of Canada Ltd, 2006 CanLII 202 (ON SC)), visit: http://www.canlii.org/on/cas/onsc/2006/2006onsc10045.html Summary by: Jason Young