The cost of privacy: invasion of personal privacy can attract damages in Ontario
By Christian Paquette
What began as a love story turned into a legal battle with a surprising outcome: the Ontario Court of Appeal has now recognized the tort of invasion of personal privacy. After 120 years of academic debate, it is now possible to sue for damages in connection with a breach of privacy. Employers may want to review their privacy policies to avoid any potential liability following this decision.
The case opposing Sandra Jones to Winnie Tsige garnered much attention last year. Both Ms. Jones and Ms. Tsige were employed by the same bank, although they neither knew nor worked with each other. Ms. Tsige developed a romantic relationship with Ms. Jones’ ex-husband. However, Ms. Tsige claimed she was involved in a dispute with him over child support payments he was making to Ms. Jones, his former wife.
Unknown to Ms. Jones, Ms. Tsige used her position at the bank to access Ms. Jones’ personal financial information at least 174 times over the course of four years. Ms. Tsige was eventually caught and disciplined by the bank, leaving Ms. Jones upset and her confidential banking information destroyed. Even though Ms. Jones had suffered no quantifiable loss, she was awarded $10,000 as “symbolic” or “moral” damages by the Court of Appeal, though the Court made it clear that such damages could go as high as $20,000, depending on the circumstances of the case.
To establish a breach of privacy, the victim must prove that the tortfeasor’s conduct was (i) intentional (or reckless), (ii) amounted to an unlawful invasion of the victim’s private affairs, and (iii) would be viewed as highly offensive to a reasonable person, causing distress, humiliation or anguish.
The good news for employers is that they are unlikely to be vicariously liable for their employees’ conduct if they have a clear policy on privacy and the use of confidential information, have enforced their policy, and have not otherwise participated in or acquiesced to their employees’ conduct.
The Court has also obviously tried to reduce the potential for floods of frivolous claims of invasion of privacy by limiting the tort to “deliberate and significant invasions of personal privacy”. In other words, individuals who are overly sensitive or concerned about their privacy will not be able to rely on this tort. According to the Court, the only invasions of personal privacy which could potentially qualify would include matters such as “financial or health records, sexual practices and orientation, employment, diary or private correspondence”.