The Lawyers Weekly - July 8, 2011

The tort of invasion of privacy

JOSEPH
GRIFFITHS

Between the constant barrage of headlines describing ever more brazen and successful computer attacks, the largest of which compromised the personal account information of 100 million users at once, to reports that fully 56 per cent of the most popular non-social media websites “directly leak pieces of private information,” it is increasingly apparent that the need to protect and enforce privacy rights is escalating.

Unfortunately, while the headlines might make it obvious that privacy has to be safeguarded, the legal mechanism for doing so isn’t. In fact, the clear challenge facing a lawyer who is retained by a client whose privacy has been breached is finding a legal remedy in a system that, in many respects, has yet to mature and bridge the gap created by the mass centralization and corresponding exploitation of personal and private information.

That is particularly true in Ontario where, unlike other provinces that allow an individual to claim the benefit of a statutory tort for the invasion of privacy, often without proof of damages, there is no legislative equivalent. Instead, the courts had been inching ever closer to recognizing an independent common law tort for the invasion of privacy or, at the very least, had seemed prepared to suspend the usual procedural hurdles that might have precluded such causes of action from being advanced, most notably by refusing to strike out such claims at the early stages of pleading.

However, with the release of Jones v. Tsige, [2011] O.J. No. 1273 by the Ontario Superior Court of Justice, the debate over the right to sue for an invasion of privacy seems to be over, at least for now. The facts in Jones are not complicated. The plaintiff and defendant both worked at different branches of the Bank of Montreal (BMO) and the plaintiff did all her banking with BMO. Over the course of four years and on 174 occasions, the defendant accessed and reviewed the plaintiff’s private banking records. She was caught, apologized and was disciplined by BMO. The plaintiff sued the defendant for her conduct, alleging that Tsige had committed the tort of invading her privacy. Each party moved for summary judgment.

After considering the various authorities and the meandering

development of the invasion of pri-
vacy tort, Justice Whitaker concluded
that there is no such tort in Ontario.
His decision was heavily influenced
by what appears to be a passing ref-
erence to individual privacy rights
made in obiter by the Court of Appeal
in Euteneier v. Lee, [2005] O.J. No.
3896. There, the court commented
that “Euteneier 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.”
While this reference to privacy is
certainly provocative, there is no indi-
cation that the court had been asked
to rule on whether there is, in fact, a
common law tort for the invasion of
privacy. Instead, Euteneier sued the
police for negligence, assault, civil
conspiracy and breach of her Charter
rights after she was handcuffed naked
to the bars of her cell.

At trial, the judge dismissed her
claim on the grounds that the police
acted reasonably in carrying out their
duties. The issue raised by the plain-
tiff on appeal was whether the trial
judge neglected to interpret the dut-
ies imposed on the police in view of
the plaintiff’s privacy and dignity
interests. Although the court dis-
missed her appeal, it did not do so on
the grounds that Euteneier was pre-
cluded from advancing a claim for
the protection of her privacy inter-
ests. Rather, the court simply
affirmed that, in the circumstances
of that case, the police had taken rea-
sonable steps to do so.

Effectively, the impact of Justice Whitaker’s decision is to bar a wronged plaintiff from obtaining a meaningful remedy where the conduct complained of is perpetrated by an individual acting alone. And while there may be other causes of action that are available to a plaintiff to address a breach of privacy (i.e. an action in negligence or the like), there will be situations where a plaintiff, like Jones, will be unable to make out the core elements of a negligence action, and in particular, will be unable to prove the requisite damages.

Recognition by the courts of an intentional common law tort for invasion of privacy would relieve the burden of having to prove specific damages. That feature is essential to the survival of a breach of privacy action, where damages are typically difficult to quantify and the harm suffered by a plaintiff is intrinsic to the wrongful conduct in much the same way as a person who suffers a battery.

Unfortunately, until the Court of Appeal renders a decision in Jones, advancing a claim for an invasion of privacy will prove problematic. Until the law is clarified, the practitioner advising a client will have to find a way to fit within the rubric of PIPEDA or similar legislation. n