• Ontario Court Of Appeal Recognizes Tort of Invasion of Privacy
  • January 25, 2012 | Authors: Pamela Horton; Michael Kotrly
  • Law Firm: Norton Rose Canada LLP - Toronto Office
  • After over a century of uncertainty in Canadian common law, the Ontario Court of Appeal has recognized a civil cause of action for the invasion of privacy.  This is the first time a Canadian appeal court outside of Quebec has recognized this type of action, which the court described as a claim for “intrusion upon seclusion.”

     


    The tort of “intrusion upon seclusion”

    According to the court, a plaintiff seeking damages for the tort of intrusion upon seclusion must prove that:

    • the defendant’s conduct was intentional or reckless;
    • the defendant 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.

    The court emphasized that it is not necessary for the victim to prove actual material damage.  However, in the absence of any monetary loss, only a “modest conventional sum” will be awarded.  The court indicated that as a rule, where the plaintiff has suffered no pecuniary loss, damages for intrusion upon seclusion cases should not exceed $20,000.  The court also left the door open for more significant claims in the event of especially reprehensible conduct or where there was actual pecuniary loss.

    Application to the facts of the case

    The plaintiff and defendant worked at two branches of the same bank, but had not met each other. For about four years, the defendant used her workplace computer to repeatedly access the plaintiff’s personal bank accounts.  The defendant did not publish, distribute or record the plaintiff’s financial information; she was only “snooping.”  The Court of Appeal concluded that the plaintiff had a valid claim and awarded her $10,000.

    Conclusion

    In anticipation of any potential “floodgates” argument, the court stressed that a claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy and that “no right to privacy can be absolute.”

    On a final note, the court noted that an employer’s internal privacy policies might constitute a “complete answer” to an action against the employer for the conduct of a “rogue employee.”  This underscores the importance of having the appropriate privacy policies in place.