The Court of Appeal for Ontario in Jones v Tsige has by unanimous decision found there is a cause of action for the invasion of personal privacy .

 

FACTS

Jones and Tsige worked at different branches of the Bank of Montreal (“BMO”). Jones maintained her primary bank account there.  While Jones and Tsige did not know or work with each other Tsige was involved in a relationship with Jones’ former husband. For about four years, Tsige used her workplace computer to access Jones’ personal BMO bank accounts at least 174 times. The information displayed included transactions details, as well as personal information such as date of birth, marital status and address.        Jones became suspicious that Tsige was accessing her account and complained to BMO. When confronted by BMO, Tsige admitted that she had looked at Jones’ banking information, that she had no legitimate reason for viewing the information and that she understood it was contrary to BMO’s Code of Business Conduct and Ethics and her professional responsibility. Tsige explained then and maintained that she was involved in a financial dispute with Jone ’s former husband and accessed the accounts to confirm whether he was paying child support. Jones does not accept that explanation, saying it is inconsistent with the timing and frequency of Tsige’s enquiries ([4] – [5]).

Jones alleged  that her privacy interest in her confidential banking information has been “irreversibly destroyed” and claims damages of $70,000 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000.

Jones moved for summary judgment and Tsige brought a cross-motion for summary judgment to dismiss the action [8]. On application the judge found that Tsige did not owe Jones a fiduciary obligation and dismissed that claim [9] and, inter alia, that given the existence of privacy legislation protecting certain rights, any expansion of those rights should be dealt with by statute rather than common law  (see [12] – [13]).

DECISION

At [15] – [18]  the Court considered the genesis of the tort of privacy, in particular the articles of S.D. Warren & L.D. Brandeis, “The Right to Privacy” (1890) 4 Harv. L. R. 193 and William L. Prosser, “Privacy” (1960), 48 Cal. L. R. 383. The four-tort catalogue set out by Prosser was:

1.      Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2.      Public disclosure of embarrassing private facts about the plaintiff.

3.      Publicity which places the plaintiff in a false light in the public eye.

4.      Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

This classification has been adopted by the Restatement (Second) of Torts (2010) [19] and the court said that the tort that is most relevant to this case, the tort of “intrusion upon seclusion”, is described by the Restatement, at § 652B as:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

A [20] the court stated:

Of particular relevance to this appeal, is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, “even though there is no publication or other use of any kind” of the information obtained.

The court undertook an analysis of Ontario case law at [25] – [32], provincial case law [33] – [38], Charter jurisprudence [39] – [46] (which recognises privacy rights), Canadian legislation [47] – [54], none of which explicitly recognises an invasion of privacy.

The court reviewed US jurisprudence at [55] – [60] with the elements for intrusion upon seclusion being:

1.   an unauthorized intrusion;

2.   that the intrusion was highly offensive to the reasonable person;

3.   the matter intruded upon was private; and,

4.   the intrusion caused anguish and suffering.

• The first element focuses on the act of intrusion, as opposed to dissemination or publication of information and  “the type of interest involved and not the place where the invasion occurs”: Evans v. Detlefsen, 857 F(2d) 330 at 338 (6th Cir. 1988).

• the second element, factors to be considered in determining whether a particular action is highly offensive include the degree of intrusion, the context, conduct and circumstances of the intrusion, the tortfeasor’s motives and objectives and the expectations of those whose privacy is invaded: see J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation, 2d ed., looseleaf (Thomson West, 2002) at § 48:6.

• the third element, the plaintiff must establish that the expectation of seclusion or solitude was objectively reasonable. The courts have adopted the two-prong test used in the application of the Fourth Amendment of the United States Constitution. The first step is demonstrating an actual subjective expectation of privacy, and the second step asks if that expectation is objectively reasonable: Katz v. United States, 389 U.S. 347 at 361 (1967).

• The fourth element is generally presumed once the first three elements have been established.

At [61] – [62]  the court reviewed the UK decisions, most recently Mosely v. News Group Newspapers Ltd. [2008] EWHC 1777 (Q.B.) which found at para. 7:

“[t]he law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”

At [63] the court reviewed the limited developments in privacy jurisprudence in Australia with Lenah Game Meats Pty Ltd v. Australian Broadcasting Corp., [2001] H.C.A. 63, where the High Court of Australia expressly left the door open to the recognition of a common law right to privacy despite earlier authority to the contrary. The court also considered the Queensland District Court decision in  Grosse v. Purvis, [2003] Q.D.C. 151, Aust. Torts Reports 81-706,  where the elements for the tort were found to be:

1.      a willed act by the defendant;

2.      which intrudes upon the privacy or seclusion of the plaintiff;

3.      in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities; and

4.      which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do.

At [64] the court considered the New Zealand decision of Hosking v. Runting, [2004] NZCA 34 where the New Zealand Court of Appeal recognized a common law tort of breach of privacy that is separate and distinct from the tort of breach of confidence where the elements of the tort are:

1. the existence of facts in respect of which there is a reasonable expectation of privacy; and

2. the publicity given to those private facts must be considered highly offensive to an objective reasonable person.

At [65] the court found there was a privacy action saying:

“In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amountto an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”

At [66] – [69] the court underwent a detailed discussion supporting such a tort in Canada.

The court adopted as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) [70] and at [71] stated:

The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

At [72] the court stressed that recognizing this cause of action would not open the floodgates because:

A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s 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.

At [73] the court stressed that claims for the protection of privacy may give rise to competing claims, especially the protection of freedom of expression and freedom of the press and that no right to privacy is absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.

On the question of damages the court stated that proof of actual loss is not an element of the cause of action for intrusion upon seclusion [74].  At [77] – [86] the court reviewed the principals of damages, including aggravated and exemplary damages.

In this case the court found that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. In this case in the range at up to $20,000. The factors which provide a useful guide to assist in determining where in the range the case are [87]:

1.   the nature, incidence and occasion of the defendant’s wrongful act;

2.   the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

3.   any relationship, whether domestic or otherwise, between the parties;

4.   any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5.   the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

In reviewing the behaviour of Tsige in the context of damages the court stated at [89]:

It is my view that in this case, Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones. These acts satisfy the elements laid out above: the intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it would be viewed as highly offensive to the reasonable person and caused distress, humiliation or anguish.

and, at [90]:

In determining damages, there are a number of factors to consider.  Favouring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000. Tsige’s intrusion upon Jones’ seclusion, this case does not, in my view, exhibit any exceptional quality calling for an award of aggravated or punitive damages.

ISSUES

This is a particularly useful decision handed down in the shadow of the government response to a discussion paper on whether to legislate a tort of invasion of privacy.  The ultimate rationale for recognising a common law right is grounded on a broad consideration of the developments in other jurisdictions as well as the need to deal with the changing circumstances.  It is a very thoughtful decision and will no doubt be considered in future jurisprudential discussions.