In the 2012 case Jones v. Tsige, the Ontario Court of Appeal unanimously confirmed the existence of a new tort for the invasion of personal privacy named “intrusion upon seclusion.” In doing so, Ontario became the only province in Canada that has expressly accepted a civil cause of action for invasion of privacy under the common law.
The tort holds any individual who “intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns... subject to liability to the other… if the invasion would be highly offensive to a reasonable person.” The Court stated that “non-physical forms of investigation or examination into private concerns may be actionable,” and that the scope of the tort encompasses actions such as the examination of a private bank account, or the opening of personal mail, regardless of whether there has been publication or other use of the information obtained. The Court also noted that the rights to privacy protected by this tort would need to be balanced against competing claims for protection of freedom of expression and freedom of the press.
It is significant that the new tort is actionable without actual pecuniary harm. Where no provable financial loss has been suffered, damages will be categorized as “symbolic” or “moral”. In these cases, and in view of the intangible nature of the interest protected by this cause of action, damages should be modest, but also sufficient to recognize the wrong that has been done. The Court in Jones fixed the upper limit for such damages at $20,000. The court listed the following factors, derived from the Manitoba Privacy Act, as being particularly relevant to the assessment of damages:
The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
Any relationship, whether domestic or otherwise, between the parties;
Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant
Aggravated and punitive damages might be awarded in egregious circumstances calling for exceptional remedies, but are not encouraged. An especially intimate location of invasion, substantial premeditation, or a relationship that gives rise to a high expectation of privacy, are possible circumstances that could engender these types of damages.
In Jones, both Jones and Tsige worked at separate branches of the Bank of Montreal (BMO). Tsige was in a common-law relationship with the ex-husband of Jones. For approximately four years Tsige accessed Jones’ personal bank accounts a minimum of 174 times using her workplace computer. This activity was conducted without permission and for purely personal reasons. Tsige did not publish, distribute or record any of the information she viewed, which included transaction details and other personal information. Tsige apologized once caught.
In setting the damages for this intrusion of Jones’ privacy, Sharpe J balanced Tsige’s conduct, both before and after the wrong, with the effect of the breach on Jones. Although Tsige’s actions were deliberate, repetitive, and caused understandable emotional distress, she was contrite and offered to make amends. Furthermore, Jones suffered no harm to her health or financial interests, nor any public embarrassment. Accordingly, Sharpe J placed the case at the mid-point of the damages and severity range identified above, and awarded Jones $10,000.
The decision to create this cause of action represents an evolution of the common law in response to contemporary privacy concerns posed by our unprecedented ability to capture and store personal information using modern technology. Today, routinely collected personal information in electronic form is more vulnerable than ever to access and dissemination. Deliberate intrusions of an individual’s private affairs, via this sensitive information or otherwise, demands recourse. This novel tort addresses gaps in the existing statutory framework, and provides monetary compensation for those aggrieved when the applicable legislation fails to provide a sufficient remedy. As this fledgling tort continues to be reviewed and applied in future Canadian cases, the principles and considerations delineated in Jones will likely continue to be persuasive.
 Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241 [Jones].
 Ibid at para 70.
 Ibid at para 20.
 Jones, supra note 1 at para 71.
 Ibid at para 75.
 Ibid at para 87.
 Ibid at para 87.
 Ibid at para 88.
 Ibid at para 85.
About the Author
Bronte Fudge is a second year student at Western Law and a Staff Editor for the Western Journal of Legal Studies. She graduated from Western University with an Honors Bachelor of Health Sciences. She will be working this summer as a research assistant in the fields of healthcare law, impaired driving, and torts.
Bronte Fudge, "Jones v. Tsige: Case Commentary" (2016) eDiscoveries, online: <http://www.ediscoveries.org/#!Jones-v-Tsige-Case-Commentary/cjds/572b87b50cf2094051e5dc78>.