March 6, 2012

By Brad Smith

On January 18, 2012 the Ontario Court of Appeal broke new legal ground in the case of Jones v. Tsige: it created the tort of invasion of seclusion. It is a common law right to damages for invasion of privacy.

There are three elements that must be proven. First, there has to be an intentional intrusion. Intention could be proven by recklessness. Second, the intruder must also invade, without lawful justification, the victims private affairs and concerns. Third, a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The requirement that the invasion was highly offensive will exclude those who are unduly sensitive. Examples that are highly offensive are 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.

The tort of invasion of seclusion is not paramount. There may be competing claims, such as free expression, that also serve limit the responsibility for the invasion. The Court of Appeal also limited the financial damages to $20,000.

The invasion of seclusion could have widespread application, including for employers. It is significant to consider that Jones v. Tsige arose in the workplace. Both Ms. Jones and Ms. Tsige worked at a bank and Ms. Tsige accessed Ms. Jones financial accounts at the bank. Ms. Jones did not join her employer in the court action. It would appear the bank had exercised diligence. The bank did not have actual knowledge of the invasions by Ms. Tsige, had policy prohibiting the access and disciplined Ms. Tsige when it learned of the transgressions.

It is possible the tort of invasion will impose limits on an employer’s access and use of employee’s information. It may also impose a duty on the employer to protect an employee from intrusions from others. Prudent employers should review their privacy policies and practices and educate and train their employees.