Intrusion Upon Seclusion

The Ontario Court of appeal in Jones v Tsigie[1] (Jones) shook up the common law landscape with adoption of the American common law tort of intrusion upon seclusion. However, no other appellate court has adopted intrusion upon seclusion.[2] Lower courts in other provinces have been pushed to accept the new tort, but no action has been concluded on the tort, however, pleadings containing the tort have continued to be accepted.[3] [4] [5] [6] [7]

In Jones, the defendant, a bank employee, had perused the plaintiff’s bank records 174 times over a four year period.[8] The defendant’s ex-husband was in a relationship with the plaintiff during the four-year span. The defendant did not disclose any of the information, but simply accessed it.[9] The court adopted the common law tort of intrusion upon seclusion noting “[these] facts…cry out for a remedy”.[10]

The Ontario Court of Appeal in crafting the common law tort of intrusion upon seclusion set out to ensure at every stage of the tort (the elements, the assessment of damages, and the damages cap) was narrowed so it “w[ould] not open the floodgates”.[11]  As will be discussed below this narrowing may have been too rigid, bringing forth a tort that is only an economically rational cause of action in a few situations.

The Ontario Court of appeal, drawing on the American context, set out the elements of intrusion upon seclusion as:

1. The conduct must be intentional or reckless
2. The invasion was of the plaintiff’s private affairs or concerns and without lawful justification
3. The reasonable person would see the invasion as highly offensive causing distress, humiliation, or anguish[12][13]

In limiting the tort, the court set a minimum threshold noting a “claim will only arise for deliberate and significant invasions of personal privacy”.[14] Further, the court demarcated categories where intrusion upon seclusion can be found highly offensive “such as”: financial or health records, sexual practices or orientation, employment, diary, or private correspondence.[15] Notably, these categories do not include a general seclusion category to preclude peeping toms or video recording of physical personal spaces such as a home, as was actionable in the statutory tort context.[16]

It is more than likely the use of “such as” is meant to signal that use of analogous or additional categories are not closed, which could cover other scenarios. This is bolstered by the fact that the court in examining the American context took note that the tort applied to physical intrusions by human sight, sound, or mechanical means.[17] Hypothetically, the category of diary or private correspondence could be stretched to protection of spying on physical spaces such as a home, based on the fact the category is meant to protect personal interactions and thoughts, thus whether they are recorded or merely observable is immaterial. [18]

Interestingly, the Nova Scotia Supreme Court recently refused to strike a pleading of intrusion upon seclusion based on forced strip search of psychiatric patients.[19] This suggest a broader reading of the categories, regardless of the rational, is already underway.

The court when setting out how damages should be approached canvassed the common law and the case law deriving from the statutory tort context. The court in sum paraphrased the damage criteria set out in the MB’s Privacy Act to assess damages:

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.[20]

As in the statutory tort context, these factors allows judges to lower or increase damages.  However, the court went on to restrict the quantum of damages of intrusion upon seclusion to $20,000 where there has been no pecuniary loss.[21] The court also held that aggravated and punitive damages are possible, but there use should only occur in exceptional cases.[22] On this assessment, the court set the damages at $10,000 for this case.[23]

Intrusion Upon Seclusion: A Hollow Tort?

The real question that must be asked is what client will be willing to follow a claim of intrusion upon seclusion based solely on general damages with a maximum damage cap of $20,000. The stress of carrying forward the action, lawyer fees, and the chance of loss (and thus payment of the plaintiff and part of the defendant’s costs) is not likely to encourage many to proceed on this tort with no pecuniary claim.

For intrusion upon seclusion to be economical it will likely will have to be tied with a pecuniary claim, a class action suit, or a small court claims action. Class actions would allow for savings by potentially decreasing overall payment for a lawyer. Notably, out of the handful of intrusion upon seclusion pleadings that have gone forward a majority are class actions suits.[24] Tamara Hunter has suggested small claims court may be a route for intrusion upon seclusion to take root, especially in the statutory tort provinces where the tort is excluded from small claims courts.[25] However, this may be a limited route as some jurisdictions may have limits on general damages in small claims courts. For example, in Nova Scotia tort claims are actionable but general damages in small claims are restricted to $100, however, Ontario’s overall damages limit is $25,000.[26] Therefore, the common law action of intrusion upon seclusion without a pecuniary loss aspect is likely, in many jurisdictions, to only be widely applicable in class action suits or as a backup cause of action.

[1] Jones v Tsige, 2012 ONCA 32, 108 OR (3d).

[2] Halsbury’s Laws of Canada (online), Access to Information and Privacy (2011) Reissue, “The Tort of Invasion of Privacy” (VII.4.(1)) at HAP-268 “Tort Not Recognized”.

[3] Manitoba: Grant v Winnipeg Regional Health Authority, 2015 MBCA 44, [2015] M.J. No. 116.

[4] Nova Scotia: Doucette v Nova Scotia, 2016 NSSC 25, [2016] NSJ No. 28; Hemeon v South West Nova District Health Authority, 2015 NSSC 287, [2015] NSJ No. 436; Murray v Capital District Health Authority, 2015 NSSC 61, [2015] NSJ No. 77;  Trout Point Lodge Ltd. v Handshoe, 2012 NSSC 245, [2012] NSJ No. 427.

[5] Newfoundland and Labrador: Hynes v Western Regional Integrated Health Authority, 2014 NLTD(G) 137, [2014] N.J. No. 336.

[6] New Brunswick: Avery v Canada (Attorney General), 2013 NBQB 152, [2013] NBJ No. 149.

[7] Federal: Pinder v Canada (Minister of the Environment), 2015 FC 1376, [2015] F.C.J. No. 1458; John Doe v Canada, 2015 FC 916, [2015] FCJ No. 1376; Sauve v Canada, 2015 FC 739, [2015] FCJ No. 882; Condon v Canada, 2014 FC 250,  [2014] FCJ No. 297.

[8] Jones v Tsige, 2012 ONCA 32 at para 2, 108 OR (3d).

[9] Jones v Tsige, 2012 ONCA 32 at para 4, 108 OR (3d).

[10] Jones v Tsige, 2012 ONCA 32 at para 69, 108 OR (3d).

[11] Jones v Tsige, 2012 ONCA 32 at para 18, 108 OR (3d).

[12] Jones v Tsige, 2012 ONCA 32 at para 71, 108 OR (3d).

[13] Although in the statutory torts there are built in defences to the privacy tort, oddly, none were outright espoused here nor was reference made to the statutory defences, see: The Privacy Act, CCSM c P125 s 5; However, the court noted that the defence to defamation may be drawn on in the future to balance this tort with freedom of expression values. For an articulation of how a defences to defamation could be transplanted into this context, see: Jared A Mackey, “Privacy and the Canadian Media: Developing the New Tort of ‘Intrusion Upon Seclusion’ with Charter Values” (2012) 2:1 Western Journal of Legal Studies 1; Stephan Aylward, “The Idea of Privacy Law: Jones v Tsige and the Limits of the Common Law” (2013) 71:1 University of Toronto Faculty of Law Review 1 at 16.

[14] Jones v Tsige, 2012 ONCA 32 at para 72, 108 OR (3d).

[15] Jones v Tsige, 2012 ONCA 32 at para 72, 108 OR (3d).

[16] Stephan Aylward, “The Idea of Privacy Law: Jones v Tsige and the Limits of the Common Law” (2013) 71:1 University of Toronto Faculty of Law Review 1 at 9.

[17] Jones v Tsige, 2012 ONCA 32 at para 20, 108 OR (3d).

[18] The argument here is based on the linguistic use of “such as”; Alternatively, Stephen Alyward argues that because the court focused on privacy based on “interference with personal information” and did not include “control over experiential access to one’s person” the court excluded the latter with its hard categories. Alwyward notes that the tort will likely be expanded in the future to solve this issue. Notably, Alyward points to the court’s reliance on the statutory tort context on a peeping tom case to suggest that this likely to occur, see: Stephan Aylward, “The Idea of Privacy Law: Jones v Tsige and the Limits of the Common Law” (2013) 71:1 University of Toronto Faculty of Law Review 1 at 9.

[19] Murray v Capital District Health Authority,  2015 NSSC 61, [2015] NSJ No. 77

[20] Jones v Tsige, 2012 ONCA 32 at para 87, 108 OR (3d); The Privacy Act, CCSM c P125, s 4(2).

[21] Jones v Tsige, 2012 ONCA 32 at para 86, 108 OR (3d).

[22] Jones v Tsige, 2012 ONCA 32 at para 88, 108 OR (3d).

[23] Jones v Tsige, 2012 ONCA 32 at para 92, 108 OR (3d).

[24] Hopkins v Kay 2015 ONCA 112 73, 2015 CarswellOnt 2232; Murray v Capital District Health Authority, 2015 NSSC 61, [2015] NSJ No. 77; Hynes v Western Regional Integrated Health Authority, 2014 NLTD(G) 137, [2014] N.J. No. 336; Murray v Capital District Health Authority, 2015 NSSC 61, [2015] NSJ No. 77; Hemeon v South West Nova District Health Authority, 2015 NSSC 287, [2015] NSJ No. 436; Grant v Winnipeg Regional Health Authority, 2015 MBCA 44, [2015] M.J. No. 116; John Doe v Canada, 2015 FC 916, [2015] FCJ No. 1376.

[25]  Tamara Hunter, “The Court of Appeal for Ontario’s Decision in Jones v Tsige: A cause célèbre?” (2012) 31:1 The Advocates’ Society Journal 1 at para 17.

[26] Small Claims Court Act, RSNS 1989, c 430, s 9(a), 11; Small Claims Court Jurisdiction, O Reg 626/00 s 1(1).