Ontario Court Finds There is No Tort of Invasion of Privacy

On a motion for summary judgment, in Jones v Tsige 2011 ONSC 1475, Justice Whitaker of the Ontario Superior Court of Justice has held that there is no tort of invasion of privacy in Ontario. The defendant, Tsige, worked at the Bank of Montreal and over a period of four years allegedly accessed and reviewed the banking records of the plaintiff bank customer, 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. Justice Whitaker reviewed decisions supporting the existence of a tort of invasion of privacy, but concluded that the decision of the Ontario Court of Appeal (Court of Appeal) in Euteneier v Lee (2005), 77 OR (3d) 621, was binding and dispositive of the issue. Athough the Euteneier case did not involve an intentional tort, in it the Court of Appeal considered the extent to which privacy rights are enforceable at law in the context of the duty of care owed by the police to people held in custody. In particular, the Court of Appeal found “there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law”. In an interesting aside, Justice Whitaker went on to note that this is not an area of law that requires “judge-made” rights and obligations because there already exists a range of legislation governing privacy issues, citing four such statutes enacted in Ontario and at the federal level in Canada. The Court went on to find that Tsige owed Jones no fiduciary duty, and so dismissed Jones’ action in its entirety. The finding in Jones v Tsige differs from that of Somwar v McDonald’s Restaurants of Canada Ltd (see E-TIPS® Vol 4, No 16, February 16, 2006), in which Justice Stinson of the same Court held that “in light of the trial decisions listed in this brief survey of Ontario jurisprudence, and the absence of any clear statement on the point by an Ontario appellate court, I conclude that it is not settled law in Ontario that there is no tort of invasion of privacy.” However, it should be noted that in the Somwar case, the Court apparently did not consider Euteneier v Lee. For the full reasons for judgment in Jones v Tsige, visit: http://tinyurl.com/5wyq4nn Summary by: Tom Feather