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Is There a Tort of Invasion of Privacy in Ontario?

Posted in Case Previews, Torts
Byron Shaw

Is there a tort of invasion of privacy in Ontario? The Ontario Court of Appeal may finally settle this stirring question in an appeal scheduled to be heard on September 29, 2011.

In Jones v. Tsige, Jones and Tsige worked at different branches of the Bank of Montreal (BMO). Jones did her personal banking with BMO. Over the course of four years and on 174 occasions, Tsige accessed and reviewed Jones’ banking records using her computer at work. Tsige admitted that she reviewed the records and that she had no legitimate work-related reason for doing so. Jones brought a motion for summary judgment, alleging, among other things, that Tsige had committed the tort of invasion of privacy. Tsige cross-motioned for summary judgment to dismiss the action and argued that there is no such tort in Ontario.

Decision Below

The motion judge agreed with Tsige and dismissed the action.

The motion judge provided the clearest statement to date regarding what was a previously developing tort in Ontario: “I conclude that there is no tort of invasion of privacy in Ontario.”

In the motion judge’s view, the Court of Appeal’s decision in Eutenier v. Lee was binding and dispositive of the issue. In Eutenier, the plaintiff sued police officers following a strip search where she remained bound and unclothed in a cell visible to passersby for twenty minutes. She sought damages for negligence, assault, civil conspiracy and breaches of the Charter of Rights and Freedoms. One of the appellant’s arguments on appeal was that the trial judge did not properly take into account her privacy interests when considering the duty of care owed to her by the police. In delivering the judgment for the Court, Cronk J.A. noted that the appellant had “properly conceded in oral argument before this court that there is no ‘free standing’ right to dignity or privacy under the Charter or at common law.”

The motion judge acknowledged that there were cases that both pre-dated and post-dated Eutenier which refused to strike out claims founded in the tort of invasion of privacy: see e.g. Somwar v. McDonald’s Restaurants of Canada Ltd.; Nitsopolous v. Wong. However, in his view, Cronk J.A’s statement in Eutenier “is binding and dispositive of the question as to whether the tort of invasion of privacy exists at common law.”

Furthermore, the motion judge noted that there are several statutes in Ontario, which structure and enforce privacy obligations, including the Personal Information Protection and Electronic Documents Act, (PIPEDA), the Personal Health Information Protection Act, the Freedom of Information and Protection of Privacy Act, and the Municipal Freedom of Information and Protection of Privacy Act. The motion judge stated that these statutory schemes “govern and regulate privacy issues and disputes” and are “carefully nuanced and designed to balance practical concerns and needs in an industry-specific faction.” For instance, PIPEDA applied to the banking sector and Jones could have launched a complaint to the federal Privacy Commissioner.

It will be interesting to see whether the Ontario Court of Appeal finds the motion judge’s reasoning persuasive. Although the Ontario Court of Appeal gives considerable weight to its prior judgments, as the motion judge recognized, Eutenier did not consider the existence of the tort of invasion of privacy in Ontario. Further, it is not clear that privacy statutes were intended to preclude common law claims for damages for the tort of invasion of privacy.

Potential Significance

The Court of Appeal’s decision in Jones v. Tsige will have important and far-reaching implications for a wide variety of industries. It is true that many privacy statutes contemplate awards for damages for breach of privacy legislation. However, the statutory privacy obligations are codified and arguably provide more certainty when compared with the tort of invasion of privacy, whose very existence has now been called into question.

Case Information

Jones v. Tsige

Hearing Date:  September 29, 2011