A decision of the Ontario Court of Appeal, released on January 18, 2012, deals with a novel claim, one for damages for invasion of personal privacy. This decision has garnered a great deal of comment in the popular press in the time since its release. Is the decision as radical as some writers have suggested? What are the implications for privacy rights in Ontario, and, in particular, the conduct of employers and employees?
The case, Jones v. Tsige, involved a claim for damages brought by Jones, an employee of the Bank of Montreal, against Tsige, a co‑worker, for surreptitiously reviewing the former’s banking information. Tsige had been in a relationship with Jones’s former husband. This prompted Tsige to use her status as an employee to access Jones’s bank account on at least 174 different occasions over a period of four years, in order to determine where Jones and her former husband were going, or how they were spending money. When this came to Jones’s attention, she commenced an action against Tsige and the bank for damages for invasion of personal privacy. Tsige brought a motion to have the action dismissed on the ground that the law of Ontario does not recognize the tort of breach of privacy. The judge on the initial motion agreed and dismissed the claim. He also awarded costs against Jones of $35,000. Jones appealed both the finding of liability and the costs award.
The Court of Appeal allowed the appeal, set aside the initial order dismissing the action and granting costs, and substituted a judgment of $10,000 in Jones’s favour. In its reasons, the Court of Appeal focused on whether the law of Ontario recognizes a cause of action for invasion of privacy. The Court referred to United States case law and commentary to conclude that in the US, courts have recognized liability for the tort of “intrusion upon seclusion.” The US Second Restatement of Torts requires the plaintiff in such an action to prove three elements:
- That defendant’s conduct was intentional;
- That the defendant invaded the plaintiff’s private affairs without justification; and
- That a reasonable person would consider this invasion to be highly offensive, causing humiliation, anguish or distress.
The Court of Appeal relied on a 2006 decision of Ontario’s Superior Court, which recognized the need for a common-law remedy for the increasing ease with which an individual’s personal information can be accessed without that individual’s consent.
The Court of Appeal also reviewed cases decided under the Canadian Charter of Human Rights and Freedoms, which have recognized three distinct privacy interests: personal, territorial and informational. The Court concluded that informational privacy was the interest at stake in this appeal, and that Jones’s claim was protected by this right. It quoted previous Supreme Court of Canada case law for the definition of “informational Privacy” as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”
Although the Charter of Rights and Freedoms does not apply to disputes between individuals, the Court of Appeal pointed out that the Supreme Court of Canada has frequently referred to the Charter’s provisions in the development of common law. This, the Court of Appeal concluded, supports the recognition of the right to damages for intrusion upon seclusion based on the provisions of the Charter.
As the facts of this case indicate, routinely kept electronic databases render our most personal information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e‑mail, or text message.
The Court was cognizant of the intrusion of information gathering in every facet of our lives. Finally, the Court of Appeal recognized that the facts of this case “cry out for a remedy,” which was not available under the law as it stood. As the judge writing the decision stated, “the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.”
In providing this remedy, the Court set three requirements for the existence of the cause of action:
- The defendant’s conduct must be intentional;
- The defendant must have invaded the plaintiff’s private space without permission or lawful justification;
- A reasonable person would regard the defendant’s actions as “highly offensive, causing stress, humiliation, or anguish.”
Having accepted the existence of the tort, the Court of Appeal then considered what would be an appropriate measure of damages flowing from committing such a tort. The Court first observed that, “given the intangible nature of the interest protected, damages … will ordinarily be measured by a modest sum.” Where the plaintiff has not suffered any actual monetary loss, the plaintiff is only entitled to “symbolic or moral damages.” The Court then reviewed a number of decisions of the Ontario courts on the quantum of such damages, and concluded that the damages should not exceed $20,000 in any case. On the facts of the case before it, the Court of Appeal set damages at $10,000. As pyrrhic a victory as this was for Jones, it was made worse by the decision of the Court of Appeal that each party bear its own costs, due to the novel nature of the legal issues involved. Jones clearly suffered a significant loss in the pursuit of this lawsuit, as her costs would likely have been many times the amount of the judgment.
The Court of Appeal did impose some limits on the ability to sue for invasion of personal privacy. Most significantly, the restriction on damages to $20,000 would, in the absence of any other damage claim, make a lawsuit uneconomical.
The Court also specifically noted that the cause of action only arises where the invasion of personal privacy is both deliberate and significant. While it will be up to courts to determine what is significant, no doubt intrusions relating to private health records, financial information or religious practices will fall within this preclusion. Finally, the Court noted that the claim for invasion of personal privacy might be circumscribed by the author for freedom of expression or freedom of the press.
What then are the implications of this decision for the actions of employers in managing their workforce?
Firstly, employers face a potential claim if information they collect in the course of employment is not directly related to the needs of that employment. Should an employer disclose any of this information, even inadvertently, the employer could face a claim for damages. Of greater concern is the potential for a class action by all employees of an employer should private information of that type be disclosed by the employer.
Similarly, should employees bring such a claim for the improper disclosure of confidential information, the potential harm to the reputation of the employer could be significant. The evidence of disclosure of confidential information by the company could conceivably tarnish its reputation both among its employees and among its customers. It may create reluctance in customers to disclose the necessary information to the company, fearing that it could be improperly disseminated to its competitors.
Will employers be precluded from doing independent background checks of perspective employees? Will employees add a claim for intrusion on seclusion to their wrongful dismissal actions where the employer has been either monitoring email or has had video monitoring in the workplace? While the scope of potential claims may have broadened, employers can take some consolation in the strict limit placed by the Court of Appeal on the potential damages. Given the Court’s statement on damages, it will be the rare case where instituting a claim such as this will be cost-justified.
Obviously, employers should reassess their policies with respect to the collection and retention of information, and the protection of access to that information. At the very least, this action could give the employer a defence of due diligence which could reduce the potential damages in any such lawsuit.
At the time of writing, the parties have not given any indication as to whether they will seek leave to appeal this decision to the Supreme Court of Canada. We will, of course, follow its progress and advise you of any changes.
Earl Altman
Garfinkle Biderman LLP
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