In many ways, last week’s
Jones v. Tsige ruling on the tort of invasion of privacy was long overdue.
With so much of our financial information stored online, the advent of cloud computing, and the privacy implications of social media, Canadians are more vulnerable than ever before, particularly in light of the legislative void given that, as the Ontario Court of Appeal noted in its ruling in Jones, “existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.”
So while the appeal court may have been flexing its legal muscle in pronouncing on the tort of intrusion upon seclusion, it was high time for some authoritative body to provide clarity on the issue.
In Jones, Winnie Tsige, a colleague of Sandra Jones at the Bank of Montreal, accessed her banking records on 174 occasions over four years. Tsige had been in a relationship with Jones’ former husband and become involved in a financial dispute with him.
In setting aside the summary judgment dismissing Jones’ action, Justice Robert Sharpe, writing for a unanimous appeal court panel, noted the conflicting and sometimes vague direction on the existence of a privacy tort in everything from Ontario case law to jurisprudence on the issue under the Charter of Rights and Freedoms.
Despite the lack of clarity, he declared: “In my view, 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.”
They were wise words, indeed. Now the task is for the courts and, ideally, the legislatures, to define the scope of that tort more precisely.
While Ontarians need added protections for their privacy, it would be a mistake to broaden them so much such that people with axes to grind against their adversaries start taking them to court with frivolous claims.
Warring spouses who snoop on each other are an example of a scenario where there should be protections, but it’s important to ensure reasonable application of the tort. In an age of social media, unfortunately, people will snoop on each other to some degree.
Plaintiffs, then, should have to show grievous conduct and significant and measurable harm.
The appeal court, of course, noted those issues in its ruling in Jones. It also emphasized that damages for the tort of inclusion upon seclusion should be modest. The ruling, then, is a wise and balanced one.
— Glenn Kauth
