Friday, January 20, 2012

Invasion of Privacy now a tort

The Ontario Court of Appeal recognized a tort of invasion of privacy called "intrusion on seclusion".

The Facts

Jones and Tsige worked at different branches of the Bank of Montreal (“BMO”). Jones maintained her primary bank account there. Jones and Tsige did not know or work with each other. However, Tsige became involved in a relationship with Jones’ former husband. For four years, Tsige used her workplace computer to access Jones’ personal BMO bank accounts at least 174 times. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address. Tsige did not publish, distribute or record the information in any way.Jones became suspicious that Tsige was accessing her account and complained to BMO. When confronted by BMO, Tsige admitted that she had looked at the account.

Tsige alleged that she was involved in a financial dispute with Jone’s former husband and accessed the accounts to confirm whether he was paying child support to the appellant. Jones said this explanation was inconsistent with the timing and frequency of Tsige’s snooping. BMO disciplined Tsige by suspending her for one week without pay and denying her a bonus.

Jones commenced an action asserting that her privacy interest in her confidential banking information was “irreversibly destroyed” and claimed damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000. The Superior Court denied her claim on the basis that Ontario has not recognized a tort of invasion of privacy. The Ontario Court of Appeal held that a right of action for "intrusion upon seclusion" exists in Ontario and awarded Jones $10,000 in damages.
The New Tort

The court adopted the definition of the tort of “intrusion upon seclusion”, from the American Restatement:

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.

Key Features of the Cause of Action

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, which includes recklessness; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action.

Limitations on the Cause of Action
A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. 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.

Claims for the protection of privacy may give rise to competing claims like claims for the protection of freedom of expression and freedom of the press.

Damages will be Modest

Damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum. The Court held that "damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done." The Court fixed the range at up to $20,000 but did not preclude the availability of aggravated or punitive damages.

Regards,

Blair