There’s a new tort in town.  The Ontario Court of Appeal has now recognized the tort of “intrusion upon seclusion” in the decision of Jones v. Tsige, 2012 ONCA 32.

The court adopted the description set out in the Restatement (Second) of Torts (2010) by Professor William Prosser:

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.

In this case, Tsige and Jones both worked for the same bank.  Tsige was in a common law relationship with Jones’ ex-husband.  She accessed Jones’ bank records at least 174 times over four years without Jones’ permission.

Tsige apologized and was disciplined by the bank.  However, Jones brought an action for damages of $70,000 for breach of privacy, and $20,000 for punitive damages.

Jones’ claim was dismissed on a motion for summary judgment, as there was no such cause of action in Ontario.

The Ontario Court of Appeal allowed Jones’ appeal.  It found that:

…it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion.  Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

With advances in technology, privacy has become a pressing issue.  The law needs to evolve to respond to the exponential increase in data that is being collected about each person.

The Court considered legislation in other provinces, as well as the law in England, Australia, New Zealand and the United States in deciding that the cause of action needed to be recognized in Ontario.

The Court’s view was that this would not open the floodgates for litigation as there were significant limitations to the tort.  Only intrusions that would be found by a reasonable person to be highly offensive would be actionable.  Additionally, the right to privacy is not absolute, and may give way to competing claims, such as the right to freedom of expression.

Proof of financial loss is not required.  Damages for cases where there is no financial loss will be modest but sufficient to mark the wrong that has been done.  The upper end of the range is $20,000, unless the case is exceptional and would call for aggravated or punitive damages.

In this case, Jones was awarded $10,000 because of Tsige’s deliberate and repeated actions.  There were no aggravated or punitive damages.  Relevant to the award were the fact that Tsige had apologized and Jones had not suffered public embarrassment or harm to her health, welfare, social, business or financial position.  However, because this was a novel issue, each party paid for her own legal costs.

The legal costs to bring such a claim to trial on its own would make it unlikely that people would claim for all but the most egregious acts.