The Ontario Appeals Court last Wednesday recognized—for the first time in Canada—the intrusion upon seclusion privacy tort. In Jones v. Tsige, 2012 ONCA 32, the plaintiff sued a coworker for looking through her financial records. The motion judge granted summary judgment for the defendant on the ground that Ontario law does not recognize plaintiff’s claim. The Court of Appeal for Ontario reversed, resolving a question that “has been debated for the past one hundred and two years”—namely, whether to recognize a tort for the invasion of privacy.
The court concluded that the time had come to recognize the cause of action. Acknowledging “the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form,” the court stated that “technology change has motivated the legal protection of the individual’s right to privacy.”
Ontario’s new cause of action adopts the elements of the intrusion upon seclusion tort in the Restatement (Second) of Torts, which requires that a defendant intentionally act to invade, without lawful justification, a person’s private affairs or concerns, and that a reasonable person would find the invasion highly offensive. The court declined to impose an economic harm requirement, noting that “given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.”
The new privacy right is not absolute. Competing claims—such as “claims for the protection of freedom of expression and freedom of the press”—may in some circumstances override individual privacy rights.