Northern Exposure

Canadians Can Now Sue for Invasion of Privacy, But It’s Not Worth Much

By Brian P. Smeenk

Does Canadian law recognize a right to sue somebody for invasion of privacy? In a landmark ruling in Jones v. Tsige, Ontario’s highest court recently said essentially: Yes. In limited circumstances you can sue for “intrusion upon seclusion.” But you won’t have a big payday.

This decision is a very significant development in Canadian law. It has potentially wide-ranging ramifications across many sectors, including in the labor and employment context.

In July 2009, Sandra Jones discovered that a fellow employee at the bank where she worked, Winnie Tsige, had secretly looked at Jones’ banking records. Tsige had formed a common law relationship with Jones’ former husband. Contrary to bank policy, Tsige looked at Jones’ banking records 174 times over four years.

Tsige didn’t publish or distribute the information about Jones in any way. When later confronted by the bank, Tsige admitted her actions. She admitted it was contrary to bank policy and her ethical obligations. She explained that she was in a financial dispute with Jones’ former husband and was trying to find out if he was paying child support. Tsige apologized for her conduct. She made genuine attempts to make amends. She was also disciplined by the bank.

Despite Tsige’s efforts to make amends, Jones sued for $70,000 for invasion of privacy and breach of her position of trust. She also sought a further $20,000 in punitive damages.

Court decisions
Tsige initially moved to strike out Jones’ lawsuit. Represented by Fasken Martineau, she argued that the courts don’t provide a right to sue for invasion of privacy. Rather, privacy laws in Canada are a matter of statute. Any remedy for Jones had to be found within those statutes or within the bank’s policies.

Justice Kevin M.V. Whitaker initially ruled in favor of Tsige. He dismissed Jones’ lawsuit, saying that the law didn’t recognize any such right to sue. He also ordered that Jones pay Tsige $35,000 for her legal costs. He felt that Jones had pursued the litigation aggressively and failed to accept reasonable settlement offers. However a three-judge panel of Ontario’s appeal court, in a ruling released January 18, unanimously overturned that decision.

The appeal court essentially changed the law. It ruled that there would now be, in Ontario at least, a right to sue for “intrusion upon seclusion” where the following elements exist:

  • a party intentionally or recklessly intrudes upon the private affairs or concerns of another;
  • the intrusion is significant;
  • there is no lawful justification; and
  • a reasonable person would find the intrusion to be highly offensive causing distress, humiliation, or anguish.

The court said that economic harm need not be shown. On the other hand, claims will be recognized only for deliberate and significant invasions of personal privacy. Examples given were financial or health records, sexual practices and orientation, employment, diary, or private correspondence.

There also will be competing claims, like freedom of the press and freedom of expression, that need to be reconciled. These competing claims might trump the new intrusion upon seclusion claims.

Damages for these claims will ordinarily be modest, said the court. The range of damages for any one such claim will not normally be more than $20,000. Nor will punitive damages normally be granted above that.

In this case, the court awarded damages of $10,000. It took into account Tsige’s apology and efforts to make amends. It also considered that Jones had suffered no public embarrassment or harm to her health, welfare, or financial affairs.  Although a winning party in litigation in Canada is normally entitled to their legal costs in the action, the court awarded no costs here.

Bottom line
There is now a right, in Ontario at least, to sue for invasion of privacy or “intrusion upon seclusion.” It seems likely that courts in at least some other provinces will follow suit. But the right is limited to deliberate or perhaps reckless, significant intrusions. The situation must be highly offensive. The law won’t respond to those who are unduly sensitive. Further, the damages in any individual case will be modest.

This does not, however, rule out significant damages awards where a deliberate or reckless invasion of privacy involves large numbers of victims.

In addition, it should be noted that there are currently four Canadian common law provinces (B.C., Saskatchewan, Manitoba and Newfoundland) which already have statutes that recognize the right to sue for invasion of privacy. Furthermore, Quebec also has a similar statutory right.