Jones and Tsige worked at different branches of the Bank of Montreal (BMO). Jones maintains her primary

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Jones and Tsige worked at different branches of the Bank of Montreal ("BMO"). Jones maintains her primary bank account there. Jones and Tsige did not know or work with each other. However, Tsige became 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. Tsige did not publish, distribute or record the information in any way.

[5] 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 maintains in this action, that she was [page246] involved in a financial dispute with the appellant's former husband and accessed the accounts to confirm whether he was paying child support to the appellant. Jones does not accept that explanation as she says it is inconsistent with the timing and frequency of Tsige's snooping.

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[10] The motion judge then reviewed the jurisprudence concerning the existence of a tort of invasion of privacy. He observed that recent Superior Court decisions have refused to strike out such claims at the pleading stage and that some academic writing indicates that the tort may exist.

[11] The motion judge concluded, however, that the statement of Cronk J.A. in Euteneier v. Lee (2005),2005 CanLII 33024 (ON CA),77 O.R. (3d) 621,[2005] O.J. No. 3896 (C.A.), at para.63, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 516 is, in his words, "binding and dispositive of the question" of whether the tort of invasion of privacy exists at common law in Ontario. [...] Cronk J.A. observed, at para. 63, "[the plaintiff] properly conceded in oral argument before this court that there is no 'free-standing' right to dignity or privacy under theCharter or at common law". [page247]

[12] The motion judge added 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.

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Issue 1. Does Ontario law recognize a cause of action for invasion of privacy? (a) Introduction

[15] The question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past 120 years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights. Although the individual's privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain. As Adams J. stated in Ontario (Attorney General) v. Dieleman (1994),1994 CanLII 10546 (ON SC),20 O.R. (3d) 229,[1994] O.J. No. 1864,117 D.L.R. (4th) 449 (Gen. Div.), at p. 688D.L.R., after a comprehensive review of the case law, "invasion of privacy in Canadian common law continues to be an inceptive, if not ephemeral, legal concept, primarily operating to extend the margins of existing tort doctrine".

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[18] Professor Prosser's article picked up the threads of the American jurisprudence that had developed in the 70 years following the influential Warren and Brandeis article. Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

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.

[19] Most American jurisdictions now accept Prosser's classification and it has also been adopted by the Restatement (Second) of Torts (2010). 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.

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[22] The following discussion will examine whether the common law recognizes a cause of action for invasion of privacy. I will canvass case law from Ontario and other provinces and examine federal and provincial legislation relating to privacy. For completeness, I will also discuss the state of the law in foreign jurisdictions.

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(b) Case law

[24] [...]Ontario has already accepted the existence of a tort claim for appropriation of personality and, at the very least, remains open to the proposition that a tort action will lie for an intrusion upon seclusion.

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[41] [...] personal privacy and territorial privacy, are deeply rooted in the common law. Personal privacy, grounded in the right to bodily integrity, protects "the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal". Territorial privacy protects the home and other spaces where the individual enjoys a reasonable expectation of privacy. The third category, informational privacy, is the interest at stake in this appeal.

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[48] Tsige argues that it is not open to this court to adapt the common law to deal with the invasion of privacy on the ground that privacy is already the subject of legislation in Ontario and Canada that reflects carefully considered economic and policy choices. It is submitted that expanding the reach of the common law in this area would interfere with these carefully crafted regimes and that any expansion of the law relating to the protection of privacy should be left to Parliament and the legislature.

[49] I am not persuaded that the existing legislation provides a sound basis for this court to refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy. In my view, it would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt the development of the common law in this area: see Robyn Bell, "Tort of Invasion of Privacy -- Has its Time Finally Come?" in Archibald and Cochrane, eds., Annual Review of Civil Litigation (Toronto: Carswell, 2005), at p. 225.

[50]PIPEDA is federal legislation dealing with "organizations" subject to federal jurisdiction and does not speak to the existence of a civil cause of action in the province. While BMO is subject toPIPEDA, there are at least three reasons why, in my view, Jones should not be restricted to the remedy of aPIPEDA complaint against BMO. First, Jones would be forced to lodge a complaint against her own employer rather than against Tsige, the wrongdoer. Second, Tsige acted as a rogue employee contrary to BMO's policy and that may provide BMO with a complete answer to the complaint. Third, the remedies available underPIPEDA do not include damages, and it is difficult to see what Jones would gain from such a complaint.

[52] Four common law provinces currently have a statutorily created tort of invasion of privacy: British Columbia, [page257]Privacy Act,R.S.B.C. 1996, c. 373; Manitoba, Privacy Act, R.S.M. 1987, c. P125; Saskatchewan,Privacy Act,R.S.S. 1978, c. P-24; and Newfoundland,Privacy Act,R.S.N.L., 1990, c. P-22. All four Privacy Acts are similar. They establish a limited right of action, whereby liability will only be found if the defendant acts wilfully (not a requirement in Manitoba) and without a claim of right. Moreover, the nature and degree of the plaintiff's privacy entitlement is circumscribed by what is "reasonable in the circumstances".

[53] Under Quebec law, the right to privacy is explicitly protected both by arts. 3 and 35-37 of the Civil Code of Qubec,S.Q. 1991, c. 64 and by s. 5 of the Charter of Human Rights and Freedoms,R.S.Q. c. C-12. See Robbins v. Canadian Broadcasting Corp. (1957),1957 CanLII 430 (QC CS), 12 D.L.R. (2d) 35(Que. S.C.); Aubry v. ditions Vice-Versa,1998 CanLII 817 (SCC), [1998] 1 S.C.R. 591, [1998] S.C.J. No. 30; H. Patrick Glenn, "The Right to Privacy in Quebec Law" in Dale Gibson, ed., Aspects of Privacy Law: Essays in Honour of John M. Sharp (Toronto: Butterworths, 1980), at ch. 3.

[54] Significantly, however, no provincial legislation provides a precise definition of what constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes. The nature of these acts does not indicate that we are faced with a situation where sensitive policy choices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.

[55] As already indicated, most American states have recognized a right of action for invasion of privacy rights as defined by the four categories identified by Prosser. ( JBB Note: Courts in New Zealand and the UK also recognize rights to privacy see paras. 61-64 )

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[66] The case law, while certainly far from conclusive, supports the existence of such a cause of action. Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy [...]

[67] For over 100 years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. [...] The Internet and digital technology have brought an enormous change in the way we communicate and, in our capacity, to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought the movies we have rented or downloaded, where we have shopped, where we have travelled and the nature of our communications by cellphone, e-mail or text message.

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and theCharter, has been recognized as a right that is integral to our social and political order.

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones' position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige's employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

[71] The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would [page262] 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. (d) Limitations

[72] These elements make it clear that recognizing this cause of action will not open the floodgates. 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 practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

[73] Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada's elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that "[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public's interest to know."

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[90] [...] 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.

Employment and Human Rights Law

HRM4011

Questions

The decision of the Ontario Court of Appeal relies upon a variety of sources of law. Identify two sources of law relied upon by the court and identify their weight in decision making. Are they binding or persuasive? (25%)

In the Court of Appeal's decision, at para. 4 Sharpe J.A. noted that Tsige "did not publish, distribute or record the information in any way." In your opinion, should this matter when it comes to liability and damages? What might the implications be for an employer either way? (25%)

Explain how this case helps us understand how the common law evolves. In supporting your argument identify one case that we have discussed in relation to another employment and human rights law topic that we have covered in class which illustrates how the common law develops. See Sharpe J.A.'s comments at paragraphs 66 and 67. (25%)