“Intrusion Upon Seclusion” – Why It’s All the Rage in Tort Law

Photo: Dfrg.msc

Photo: Dfrg.msc

What is “Intrusion upon seclusion,” and how is it used as a tort claim?

Since its release in January 2012, an Ontario Superior Court decision has begun to re-shape the notion of privacy, not only in Ontario, but before courts, boards and tribunals across the country.

In Jones v. Tsige, 2012 ONCA 32 (CanLII), the Court of Appeal held that to succeed in a claim for intrusion upon seclusion, a plaintiff must prove the following elements:

  1. The defendant’s conduct was intentional (which includes reckless conduct);
  2. The defendant invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The Court found that the “intrusion upon seclusion” tort is a necessary and “incremental step” in the development of common law that evolves to the changing needs of society. The Court noted the importance of privacy interests in traditional causes of action, such as trespass, and under the Charter of Rights and Freedoms.

From the decision:

    “While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasions to develop the common law in a manner consistent with Charter values: see R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2.S.C.R. 573 at 603; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at pp. 666 and 675; Hill v. Scientology at p. 1169; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII), 2002 SCC 8, [2002] 1 S.C.R. 156; Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 61, [2009] 3 S.C.R. 640.

    “The explicit recognition of a right to privacy as underlying specific Charter rights and freedoms, and the principle that the common law should be developed in a manner consistent with Charter values, supports the recognition of a civil action for damages for intrusion upon the plaintiff’s seclusion: see John D.R. Craig, “Invasion of Privacy and Charter Values: The Common Law Tort Awakens” (1997), 42 McGill L.J. 355.”

The Court specified that proof of actual loss is not an element of the cause of action; a plaintiff does not have to show an actual economic loss to succeed, and “symbolic” or “moral” damages for the tort should rarely be more than $20,000.

Jones v. Tsige has potentially far-reaching implications. Organizations that collect or use personal, financial and other information — such as legal services providers — must be alert to the risks of unauthorized use of personal information.

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