Court of Appeal for Ontario Recognizes Tort of Invasion of Privacy

Patrick J. Cotter and Nathan Fan
Published January 20th, 2012

For over 120 years, the question of whether the common law should recognize a cause of action in tort for the invasion of privacy has been an open debate.  The recent trend in Ontario case law was to neither confirm nor deny the cause of action, but to leave open the possibility for such a cause of action.  In Jones v. Tsige, 2012 ONCA 32, the Court of Appeal for Ontario closed the debate and recognized a common law tort for invasion of privacy – a right of action for “intrusion upon seclusion”.  

Underpinning the Court’s decision was the Charter jurisprudence’s recognition of privacy, including informational privacy, as a fundamental value in Canadian law. In light of the changes technology has brought to the way information can be accessed and collected, the Court noted that the common law must evolve to respond to new threats to the right of privacy.  The current lack of sufficient legislative remedies necessitates a common law tort of invasion of privacy.

The Court adopted the following formulation of the elements of the tort:

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.

The three elements of the tort are, therefore: (i) an intentional or reckless intrusion, (ii) the intrusion must have been without lawful justification, and (iii) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, the protection of privacy must ultimately be reconciled with any competing claims of public interest, such as freedom of expression and freedom of the press.

The Court also set out the approach for assessing damages where the plaintiff has suffered no pecuniary loss, stating that damages should be “modest but sufficient to mark the wrong that has been done” with a cap of $20,000.

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