December 19, 2024
The tort of intrusion upon seclusion has been recognized in Ontario since 2012. The three-step test introduced then:
- The defendant’s conduct must be intentional, including recklessness;
- 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.
remains intact.
However, many of the cases since 2012 have focused only on the first two elements of the test.
The third element, the objective standard, was the focus in D.S. v. H. Police Services Board, This case is a useful and important reminder that not every invasion of privacy will lead to a claim for damages.
In the case, a police officer, A.A., had improperly used the police computer to conduct a background check on their ex-spouse’s new lover. The reason later given for this breach of privacy was concern for the safety of the officer’s children. A.A. was disciplined by the Police Service for breaching regulations governing use of police computers for personal reasons. That satisfies the “without lawful justification” requirement.
The information was not circulated beyond A. A. , nor was it used for any other more harmful purpose. However, this closely parallels Jones v. Tsige, the 2012 decision. The judge in the 2024 case felt that because much of the information was available on social media, and there was apparently only one breach, rather than the 174 in Jones, that the objective test was not met.
We can speculate that the judge was influenced also by the fact that A. A. had suffered the Police Services Act discipline, and therefore the actions had not gone unpunished. What the judge said was:
Here, I find the defendant’s use of police resources in this manner to be an abuse of her police powers but a de minimus one. The information learned was in the realm of neutral, biographical information that could be found in a number of public sources. The privacy breach was minimal, such that a reasonable person would not consider it “highly offensive”.
The judge does not refer to Jane Doe 72511 v. N.M., the 2018 case which recognizes a second invasion of privacy tort, the public disclosure of private facts. Given the existence of that tort to punish more serious breaches, should the D.S. case have taken this breach more seriously under the less major intrusion upon seclusion tort?
After all, Jones suggests that the modest “conventional sums” awarded for intrusion upon seclusion should stand as a moral victory. This arguably means that the threshold to recover should be equally modest.
Whether or not we agree with the result, this decision stands as a useful reminder that not every invasion of privacy will give rise to a claim for damages, that “highly offensive” is a significant hurdle to recovery.
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