SCC - Careless Garage Not Liable For Injury to Teenager

Rankin (Rankin’s Garage & Sales) v. J.J. 2018 SCC 19 (Rankin)

The Supreme Court of Canada recently held (7-2) that the owners of a commercial garage did not owe a duty of care to a boy who was seriously injured after he and a friend stole a car from the garage even though the garage was negligent in allowing the car to be stolen.

In the summer of 2006, in the village of Paisley, Ontario, the plaintiff J (who was then 15 years old) and his friend C (then 16 years old) were at C’s mother’s house.  The boys drank alcohol, some of which was provided by C’s mother, and smoked marijuana.

After midnight, the boys left the house intending to steal valuables from unlocked cars.  Eventually, they made their way to Rankin’s Garage & Sales, a business located near Paisley’s main intersection.  The garage property was not secured and the boys began checking for unlocked cars.  C found an unlocked Toyota Camry parked behind the garage.  The keys were in the car’s ashtray.  Although he did not have a driver’s license and had never driven on the road before, C decided to steal the car so he could go and pick up a friend in nearby Walkerton, Ontario.  C told J to get in, which he did. C drove the car out of the garage and headed towards Walkerton.  On the highway, the car crashed and J suffered a catastrophic brain injury.

Through his litigation guardian, J sued Rankin’s Garage, his friend, C and C’s mother for negligence.  The issue on appeal to the Supreme Court was whether Rankin’s Garage owed J a duty of care. 

Justice Karakatsanis wrote a majority decision for seven justices of the court.  Justice Brown wrote a dissenting decision (with Justice Gascon concurring). 

The majority held that the case could be resolved based on a straightforward application of existing tort law principles.  It held that J did not provide sufficient evidence to support that Rankin’s Garage owed him a duty of care.

Because there is no clear guidance in Canadian case law on whether a business like the garage owes a duty of care to someone who was injured following the theft of a vehicle, the Supreme Court conducted an Anns/Cooper analysis.  That analysis provides that to establish a duty of care, there must be a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff.  Once foreseeability and proximity are established, a prima facie duty of care is made out.  The question is an objective one, and properly focused, is whether foreseeability was present prior to the accident and not with the aid of 20/20 hindsight.

The court held that although the results of this case were tragic, physical injury to J was only foreseeable when there is something in the facts to suggest that there is not only a risk of theft of the car, but also a risk that the stolen car might be operated in a dangerous manner.  The risk of theft in general does not automatically include the risk of theft by minors.  The court found that in this case there was insufficient evidence to suggest that minors would frequent the premises at night or be involved in joyriding or theft.  Rankin’s Garage, as a commercial garage, did not have a positive duty to guard against the risk of theft by minors.  The fact that J was a minor does not automatically create an obligation for the company to act. 

The court held that J had not met the burden of establishing a prima facie duty of care because reasonable foreseeability could not be established on the factual record of the case.  A business will only owe a duty to someone who is injured following the theft of a vehicle when in addition to theft the unsafe operation of the stolen vehicle was reasonably foreseeable. 

The dissenting judges held a view that many may believe was more logical.  They held that the concept of “reasonable foreseeability” represents a low threshold and is usually quite easy to overcome.   A plaintiff must merely provide evidence to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of the plaintiff that was damaged.  In this case, both the trial judge and the Ontario Court of Appeal held that it was reasonably foreseeable that an individual such as J could suffer physical injury as a consequence of Rankin’s Garage’s negligence in failing to properly lock, secure and store vehicles.  Justices Brown and Gascon concluded that the majority of the court had conceded that the risk of theft was reasonably foreseeable but, in order to hold the garage owner responsible, would have required additional evidence that theft would have occurred at the hands of a minor in order to find that physical injury to J was foreseeable.  The dissenting judges held that minors are no less likely to steal cars than any other individual.  In order to establish a duty of care, J was not required to show that the characteristics of the particular thief or the way in which the injury occurred were foreseeable.  Imposition of a duty of care was conditioned only upon J showing that physical injury to him was reasonably foreseeable under any circumstances flowing from Rankin’s Garage’s negligence.    

Regards,

Blair

UK Court Says Dishonesty Not An Essential Element of Cheating

 

In a judgment given on October 25, 2017, five justices of the Supreme Court of the United Kingdom held unanimously that dishonesty was not an essential element of the civil tort of cheating. 

 

In Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2016] UKSC 67, the Supreme Court upheld the decision of Mr. Justice Mitting of the Queen’s Bench Division of the High Court of Justice.  Lord Hughes wrote the decision for the court (Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas all agreed). 

 

The facts giving rise to this case are unique.  The claimant is Phillip Ivey, an American professional gambler.  Mr. Ivey widely acknowledged to be one of the world’s best poker players.  He also plays blackjack, craps, roulette and baccarat.  At issue in this case is a variant of baccarat known as Punto Banco.

 

How to Play Punto Banco

 

The facts of this case are not in dispute.  Punto Banco is not a game of skill.  It is played with eight decks of cards, 416 cards in total, which are dealt from a shoe - face down by a croupier.  The croupier deals cards in a sequence from which no deviation is permitted to two positions on the table in front of her marked “player” (the Punto) and “banker” (the Banco), hence the name of the game.  The croupier deals one card to player, one to banker; a second card to player and a second to banker.  In some circumstances, she must deal one further card either to player or to banker or to both.  The basic object of the game is to achieve, on one of the two positions, a combination of two or three cards which when added together is nearer to nine in total than the combination on the other position.  Aces to nine count at face value, ten to king inclusive count as zero.  Any pair or trio of cards adding up to more than ten, requires ten to be deducted before the total count, thus four plus five equals nine but six plus five (which equals eleven) equals only one in the game. 

 

The gambler (or "punter" as they are known in the UK) bets before any card is dealt and can bet on player or banker.  It is possible to bet on a tie.  The house edge in Punto Banco is 1.24% if player wins and 1.06% if banker wins.

 

Before play begins, the cards are cut to eliminate a proportion of the shoe from those to be played.  Traditionally, seven cards out of the 416 in the shoe were cut, but some casinos routinely eliminate more.

 

Edge-Sorting

 

On August 20 and 21, 2012, Mr. Ivey played fifteen shoes of Punto Banco at Crockfords Club in London.  He was aided by another professional gambler, Cheung Yin Sun (“Ms. Sun”).  Mr. Ivey won just over ₤7.7 million.  There is no dispute that he used a technique known as edge-sorting to achieve that win.

 

A deck of playing cards is manufactured in order to present a uniform appearance on the back of the card.  The backs of some cards are, however, not exactly uniform.  In casino games in which the orientation of the back of the card may matter, the casino attempts to use cards in which the backs and the edges are indistinguishable.  Edge-sorting is possible when the manufacturing process causes tiny differences to appear on the edges of the cards so that for example the edge of one long side is marginally different from the edge of another long side.  In some cases the machine which cuts the card leaves very slight differences or patterns which are visible on long edges of the cards.  Manufacturers assert that this is not a defect but is within a contractually specified tolerance of 0.3 millimetres.  Before a card is dealt from the shoe, it sits face down at the bottom of the shoe displaying one of its two long edges.  It is possible for a sharp-eyed person sitting close to the shoe (like Mr. Ivey), to see which long edge it is.  The information thus gained is only useful to the gambler if he knows or has a good idea of what card it is. 

 

Cards with a face value of seven, eight and nine are high value cards.  If the gambler knows that when the first card is dealt whether it is a seven, eight or nine, always to player, is a seven, eight or nine, he will know it is more likely than not, that the player will win.  If it is not one of those three cards, he will know that it is more likely than not that the banker will win.  Such knowledge will give the gambler a long-term edge of about 6.5% over the house.  Three conditions must occur before the gambler can gain that knowledge:  (1)  the same shoe of cards must be used more than once; (2) cards with a face value of seven, eight or nine must be turned through 180 degrees by comparison with all other cards; and (3) when reshuffled no part of the shoe must be rotated.  Step two is the process known as edge-sorting. 

 

If the casino realizes that the seven, eight and nine cards are being turned, it will take simple steps to avoid giving the gambler an advantage.  It is therefore essential for edge-sorting to work that the croupier does not realize that the seven, eight or nine cards have been deferentially sorted.  Two people can rotate the cards – the gambler or the croupier.  If the gambler touches the cards, most casinos, including Crockfords, will not permit that shoe to be reused.  Therefore, for edge-sorting to work at Crockfords, it is essential that the croupier is persuaded to rotate the relevant cards without her realizing why she is being asked to do so.  Casinos routinely play on quirky and superstitious behaviour by gamblers.  It is in the casinos’ interest that gamblers should believe that a lucky charm or practice will improve their chance of winning.  Consequently, a wide variety of requests by gamblers, particularly those willing to wager large sums, like Mr. Ivey, are accommodated by casinos.

 

Ivey’s Gambit

 

All of the games of Punto Banco that Mr. Ivey and Ms. Sun played were captured on CCTV, contemporaneously with audio recording.  The moment they persuaded the croupier, Kathy Yau, to rotate the cards was as 9:00 p.m. on August 20, 2012. 

 

Mr. Ivey began the Punto Banco game by betting modestly by his standards – between ₤4,000 to ₤75,000 per bet.  He was losing.  At 8:56 p.m. he requested a new shoe of cards.  At 8:57 p.m., Mr. Ivey asked the senior croupier overseeing the game, “If I win, can I say I want the same cards again?”, to which the senior croupier replied yes “because he was not bending them”.   Mr. Ivey had avoided touching the cards from either the first or second shoe onwards.  At that point, Justice Mitting describes in detail the video proceedings at the Punto Banco table captured by the CCTV.  Mr. Ivey and Ms. Sun persuaded the croupier to cut only seven cards from the end of the shoe.  Ms. Sun persuaded the croupier to turn the cards in a particular way in order to “change her luck”.  They then persuaded the croupier to keep the same shoe because they had won with that shoe.  The cards were reshuffled by a machine but the croupier did not rotate them before they were shuffled.  Mr. Ivey increased his betting so that the average stake was never less than ₤149,000.  By the end of the game he had won just over ₤7.7 million.  He was provided with a receipt for that amount and told it would be wired to him.

 

Crockfords’ Investigation

 

Crockfords’ practice when any large win by a gambler occurs is to conduct an investigation to determine how it happened.  Its investigation determined that Mr. Ivey had been edge-sorting, which he later freely admitted.  Accordingly, Crockfords did not pay Mr. Ivey his winnings but refunded him his stake of ₤1 million.  Mr. Ivey sued Crockfords for his winnings.

 

Trial Decision

 

The casino denied liability on, among other grounds, that there was in implied term that Mr. Ivey would not cheat and that term had been broken. 

 

Justice Mitting held that if Mr. Ivey had cheated then he would not be entitled to recover his winnings.  He also found that in the UK there was a “complete dearth of authority on cheating at common law, at least in the civil context".  In addition, there was a dispute among gaming experts as to whether edge-sorting does or does not amount to cheating.  Experts were called by both parties. 

 

Mr. Ivey described what he and Ms. Sun did as “legitimate gamesmanship”.  While the trial judge was not satisfied that the edge-sorting amounted to deception of such a kind as to vitiate the gaming contract, he held that it was deception nonetheless.  Mr. Ivey and Ms. Sun succeeded in persuading the casino staff not to depart from their usual practice of humouring high stakes gamblers by acceding to a request which in their view did not affect the outcome of the game.  But it did. 

 

The fact that Mr. Ivey did not see himself as cheating was not determinative of the issue.  The trial judge held that what he did amounted to cheating because:  (1)  he gave himself an advantage throughout the play of the sixth and subsequent shoes by knowing or having a good idea whether the first card was or was not a seven, eight or nine; (2)  he did so by using the croupier as his innocent agent by turning the seven, eight and nine cards differentially; and (3) he did so in circumstances in which he knew that she and her superiors did not realize the consequence of what she had done at his instigation. 

 

Accordingly, the judge found that Mr. Ivey had converted a game of essentially pure chance into a game in which his knowledge was greater than that of the croupier and greater than that which he would reasonably have expected it to be. 

 

Accordingly, the judge found that conduct that amounted to cheating for the purposes of civil law and it was immaterial that the casino could have protected itself against the cheating by simple measures.

 

The Appeal

 

Mr. Ivey appealed this decision to the Supreme Court.  The court dismissed his appeal and agreed with the trial judge.  In doing so, it held that it was necessary to determine whether cheating necessarily involves dishonesty.  It held that the answer was no.  Mr. Ivey had argued that he had not been dishonest, he had just simply engaged in “advantage play”. 

 

The court rejected that argument.   It held that cheating's essentials normally involve a deliberate act designed to gain an advantage in the play which is objectively improper given the nature, parameters and rules of the game.  The Court of Appeal agreed with the trial judge’s conclusions that Mr. Ivey’s action amounted to cheating.  It held that it is an essential element of Punto Banco that the game is one of pure chance, with the cards delivered entirely at random and unknowable by the gamblers or the house.  The court held that what Mr. Ivey did was "to stage a carefully planned and executed sting".  The key factor was arranging of the several packs of cards in the shoe differentially sorted so that Mr. Ivey would not know whether the next card was a high or low value one.  However, he had gained the knowledge through the unwitting but directed actions of the croupier, tricking her into thinking that what she did was irrelevant.  The court found that what Mr. Ivey did was much more than observe the cards.  He took positive steps to fix the deck.  That conduct, in a game which depends on random delivery of unknown cards constituted cheating.  While it was cleaver and skillful and must have involved what the court referred to as “remarkably sharp eyes”, it cannot alter that truth.     

 

After a detailed review of the law, the court held that the facts of the case did not arise to the legal element of dishonesty.  However, it was incorrect to suggest that the trial judge’s findings that Mr. Ivey was truthful when he said that he did not regard what he did as cheating amounted to a finding that his behaviour was honest.  It was not.  It was a finding that he was, in that respect, truthful.  A dishonest person may sometimes be truthful about his dishonest opinions.  The court held that the better conclusion was that Mr. Ivey’s conduct was, contrary to his own opinion, cheating and was, contrary to his own opinion also dishonest. 

However, the court also held that dishonesty was not an essential element of the civil tort of cheating in the sense that there was no requirement that a defendant must appreciate that his conduct was dishonest.

Regards,

Blair

 

County Held Liable To Farmer For Excessive Use of Road Salt

In the case indexed as Steadman v. Lambton (County) 2015 ONSC 101, the plaintiff, (“Steadman”) and his wife, lived on a farm bordering Nauvoo Road in Lambton County, Ontario (“County”).  Mr. Steadman had been a full-time farmer for all of his adult life.  His wife was a retired nurse.  

 

Mr. Steadman farmed wheat and soybeans on his land and had been doing so for more than 40 years.  In the mid to late 1990s he observed crop damage due to the County spraying salt on Nauvoo Road.  He sued the County for nuisance, claiming crop losses, diminution of the value of his farm.  Mr. Steadman also claimed that the farm was now burdened with a "stigma' of having been damaged by the salt.   

 

The County defended the action claiming that the real culprit was the poor drainage on Mr. Steadman’s property; he had taken no steps to fence the property and restrict the wind's distribution of salt or use gypsum to mediate the effects of salt on his land.

 

The matter proceeded to trial before Justice Carey of the Ontario Superior Court of Justice.

 

Justice Carey reviewed extensive factual and expert evidence with respect to both liability and damages.  He concluded on all of the evidence, that the pattern of salt dispersal on Mr. Steadman’s farm was consistent with his engineering expert's opinion that higher levels of salt contamination were found closest to the road.  The only reasonable logical inference was that the salt was coming from road spray and off the road itself.  Justice Carey found on the balance of probabilities that the dispersion of the road salt along the portion of the land that bordered the road was the cause of the damage to Mr. Steadman's wheat and soya crops from about 1999 to the date of trial.

 

Justice Carey relied on the leading case in Ontario in considering whether road salt constitutes a nuisance – Schenck v. The Queen; Rokeby v. The Queen.  In that 1981 case, (which was upheld on appeal to the Ontario Court of Appeal and Supreme Court of Canada), Justice Robins balanced the interests between the plaintiffs' private property rights with the importance of proper highway maintenance to the public at large.  He found that on a balancing of the conflicting interests it would be unreasonable to compel the plaintiffs to continue to suffer interference for an indeterminate time without compensation from the government.  The injury was a cost of highway maintenance and the harm suffered by the plaintiffs was greater than they should be required to bear in the circumstances, at least without compensation.   Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the plaintiff farmers alone. 

 

As for damages, Justice Carey assessed damages at approximately $107,000 for crop losses, the cost of soil and plant tissue analysis, and diminution in the value of Mr. Steadman’s property.   

He concluded that on the evidence, Mr. Steadman had not satisfied him that there should be separate damage award for stigma (the seminal case in Ontario on stigma is Tridan Developments Limited v. Shell Canada Products Limited).  In that case, the Ontario Court of Appeal considered whether there would be a residual reduction in the value of land, even after it had been restored to a pristine condition caused by the knowledge that it had once been polluted.

Justice Carey reviewed the cases following Tridan as well as the evidence presented by Mr. Steadman.  He concluded that the salt contamination posed no human safety concern.  Additionally, he did not accept that the highest and best use of the land was cash crop farming.  Portions of the farm were unaffected by the salt and there was the ability to sever and/or consolidate the farm and its buildings for other uses.

Regards,

Blair

Guatemalan Plaintiffs sue HudBay and Subsidiaries in "Novel" Negligence Actions

Justice C.J. Brown of the Ontario Superior Court of Justice dismissed a motion brought by HudBay Minerals Inc. ("HudBay") and two of its subsidiary corporations, including one Guatemalan corporation) to dismiss novel actions for negligence.  In the this case, the plaintiffs sued HudBay for its failure to prevent the harm allegedly caused by its security personnel at mining projects owned by HudBay's subsidiary corporations in Guatemala. (Choc v. Hudbay Minerals Inc. 2013 ONSC 1414)

 

The plaintiffs are indigenous Mayan Q'Eqchi' from the El Estor region of Guatemala.  They started three separate actions: Margarita Caal Caal v. HudBay;  Angelica Choc v. HudBay; and German Chub Choc v. HudBay.

In the Caal action, the plaintiffs were 11 women, who alleged that they were gang raped by mining company security personnel, police and military during their forced removal from their village as requested by a HudBay subsidiary.     

 

In the Choc action, the plaintiff alleged that her husband, a respected indigenous leader and outspoken critic of mining practices, was beaten and shot in the head by security personnel of a HudBay subsidiary in the context of a land dispute.

 

In the Chub action, the plaintiff alleged that a gunshot wound left him paralyzed from the chest down and that he was shot in an unprovoked attack by security personnel employed at HudBay's subsidiary's mining project in the context of a land dispute.  

 

The actions arose out of a dispute as to ownership of land in Guatemala.  At all material times, the HudBay defendants maintained that they had a valid legal right to the land while the Mayan communities claimed that the Mayan Q'Eqchi' were the rightful owners of the lands which they considered to by their ancestral homeland.  The plaintiffs alleged that the defendants' claim to ownership was illegitimate because the rights of the defendants were derived from a dictatorial, military government which granted those rights during the Guatemalan civil war at a time when the Mayan Q'Eqchi' were being massacred and driven off their lands. 

 

In 2011, the Constitutional Court of Guatemala, the highest court in the country, ruled that the Mayan Q'Eqchi' communities had valid legal rights to the contested land and ordered the Guatemalan government to formally recognize those rights.  When the Mayan Q'Eqchi' had originally attempted to reclaim their ancestral homelands, there were allegedly numerous forced evictions, burning of hundreds of homes, murders and alleged human rights atrocities, including those giving rise to the three actions. 

 

The defendants brought three motions:  (i)  a motion to strike the statements of claim on the basis that they disclosed no reasonable cause of action against HudBay; (ii)  a motion to dismiss the Caal action as being statute-barred pursuant to the provisions of the Limitations Act, 2002; and, (iii)  a motion disputing the court's jurisdiction over the Guatemalan subsidiary.  

 

The court ordered that the three actions be consolidated and the motions were heard together before Justice Brown.  She dismissed all three motions.   

 

The Rule 21 Motion To Strike

 

On this motion the defendants argued that there was no recognized duty of care owed by a parent company to ensure that the commercial activities carried on by its subsidiaries were conducted in a manner designed to protect people in foreign countries.  In addition, they pleaded that HudBay was not responsible at law for the actions of its subsidiaries. 

 

Amnesty International Canada intervened in the motions to support the position of the plaintiffs. 

 

With respect to the vicarious liability claim, Justice Brown held that the plaintiffs pleaded in the Choc action that the Guatemalan subsidiary was an agent of HudBay.  In doing so, the plaintiffs had pleaded an exception to the rule of separate legal personality, i.e. where the corporation has acted as the authorized agent of its controllers, corporate or human, the allegation is not patently ridiculous or incapable of proof and must be taken to be true for the purposes of the pleadings motion.  Accordingly, the claim against HudBay on the basis of actions by its foreign subsidiary was allowed to proceed.  

 

In respect of the claim for direct negligence against HudBay, the judge held that the plaintiffs had pleaded all material facts required to establish the constitute elements of their claim.  However, the duty of care that the plaintiffs pleaded was not an "established" duty of care.  Accordingly, it was necessary for Justice Brown to apply the test for establishing a novel duty of care (the Anns test), i.e. that the harm complained of was reasonably foreseeable; that there was sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care; and, that there was no policy reasons to negate or otherwise restrict that duty.  Justice Brown held that the plaintiffs had met all three parts of the test.  With respect to policy considerations, she held that they were competing policy considerations and that it was not plain and obvious that they should be fatal to the case at the pleadings stage. 

 

The Limitations Act Motion

 

The defendants sought to have the Caal action dismissed on the basis that it was statute-barred because it was commenced after the basic limitation period of two years after the day on which the claim was discovered. 

 

However, section 10 of the Limitations Act provides an exception to the two year limitation period for claims based on an assault or sexual assault.  The provision reads as follows:

 

10 (1)    The limitation period established by section 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.  

 

10 (3)   Unless the contrary is proven, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced.  

 

The plaintiffs argued, and Justice Brown accepted, that the language used in the Limitations Act of "claims based on sexual assault" is not intended to be limited to claims against the actual perpetrator, but is broad enough to include claims of vicarious liability and negligence against all persons whose acts or omissions contributed to the damage suffered as a result of the misconduct.  The Limitations Act specifically defines "claim" to mean "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission".  Therefore, a "claim based on sexual assault" must include a claim to remedy injuries from a sexual assault caused by negligent acts or omissions.  In addition, the plaintiffs relied on the principle of interpretation that legislative provisions were to be given a large and liberal interpretation and are to be interpreted in line with their objectives.  They submitted that the purpose of section 10 of the Act was to make it easier for victims of sexual assault to bring their claims.  

 

Justice Brown accepted the submission and dismissed the Limitations Act motion.

 

As a result, there was no need to hear the jurisdiction motion because HudBay's foreign subsidiary conceded that if the first two motions were dismissed it would be a necessary and proper party to the Choc action.  

 

Regards,

 

Blair

 

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