Ontario Court of Appeal Recognizes Tort Arising from Invasion of Privacy
In Jones v. Tsige, the Ontario Court of Appeal confirmed the existence of the tort of “intrusion upon seclusion” based on invasion of an individual’s personal privacy. In its decision, the Court ordered a bank employee, Winnie Tsige, to pay $10,000 in damages to her colleague, Sandra Jones, for repeatedly accessing Jones’ private bank records. Damages were awarded despite the fact that Tsige did not publish, distribute or record Jones’ information and Jones did not suffer any public embarrassment or harm to her health, welfare or financial position as a result of Tsige’s breach. The decision is summarized in more detail on our technology and IP colleagues’ blog.
In short, the tort of intrusion upon seclusion is defined by the Court of Appeal as an intentional or reckless invasion of the private affairs or concerns of a person which would be viewed by a reasonable person as highly offensive, resulting in distress, humiliation or anguish. The Court explicitly stated that individuals can have recourse under this tort in cases where their privacy is invaded, even if they experience no economic loss.
The Court specifically listed “employment” as a private matter that would qualify as highly offensive. Accordingly, employers may be particularly vulnerable to claims of this nature since employers routinely collect and store employment information for extended periods. Employers would be well-advised to take appropriate steps to ensure that employees’ records are kept secure and are not accessible to unauthorized persons. While in this particular case the employer was not a defendant, now that there is a recognized tort arising from invasion of privacy, it is not difficult to see how this cause of action could be used as the basis of a claim for damages against an employer.