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What is “Intrusion upon seclusion,” and how is it used as a tort claim?
Learn why this once-uncommon term comes up more often, the necessary elements, how to seek damages, and how to defend against this trespass-related tort.
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:
- The defendant’s conduct was intentional (which includes reckless conduct);
- The defendant invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
- 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.
New SCOPE Contributor Shawn Gallimore is a lawyer in New Brunswick. He is interested in Ontario’s paralegal licensing scheme and small claims practice. Gallimore takes a look at a sometimes confusing and seemingly unfair element of small claims matters.
So, the judge in your client’s case made an award based on reasons other than the issues argued at trial. How can that be?
Let us imagine that you are preparing a case for a hearing before a Small Claims court. You have diligently ascertained the facts of the case from your client. You have carefully drafted a statement of claim and related pleadings. In court, you advance the interests of your client with correct arguments, evidence and witness examination.
Now let us imagine that you receive the final decision of the judge, and there is a twist — the judge has made a finding of liability and assigned damages on a basis utterly different than the issues framed in the pleadings and narrowed at trial.
Legal Word of the Day — “Reasonable Apprehension of Bias” — A reasonable apprehension of bias is the standard by which a judge or decision maker can be removed.
Bias is a predisposition to rule in favour of one side to the detriment of the other. The bias can be real or perceived.
Justice de Grandpré explained the test for reasonable apprehension of bias in his dissenting reasons in Liberty v. National Energy Board,  1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the judge], whether consciously or unconsciously, would not decide fairly.”
Baker v. Canada (Ministry of Citizenship and Immigration),  2 S.C.R. 817
Wewaykum Indian Band v. Canada,  2 S.C.R. 259
Contributed by Paralegal Patrick Kelly. He is a Southern Ontario paralegal whose practice includes tribunal work and small claims matters. Reach Patrick at: 416-938-0137
News From Practice Areas
Three former employees of a Toronto hair salon have been awarded a total of more than $150,000 compensation for the sexual harassment they endured, and wages they lost when they quit or were fired.
A Human Rights Tribunal of Ontario (HRTO) hearing determined that The Ultimate Cut Unisex, Rocco Valentini and Paul Portelli were jointly and severally responsible for the harassment. It included an uncomfortably sexually charged, poisoned work environment.
In J.D. v. The Ultimate Cut Unisex, 2014 HRTO 956 (CanLII), an adjudicator found: “Mr. Valentini’s conduct clearly indicated that he viewed the applicants as sex objects, a reason which is obviously related to the fact the applicants are women” and that Portelli failed to investigate.
Who needs a licence to provide legal services that fall within the paralegal practice? This case summary was the most-popular content recently, from among all CanLII Connects articles.
Crown employees who provide legal services to the public must be licensed paralegals, an Ontario Superior Court has found.
In April, the Law Society of Upper Canada (LSUC) got a declaration from the court that Ontario Public Service Employees Union (OPSEU) employees cannot advise employees or employers without a paralegal licence.
The case, LSUC v. OPSEU et al., 2014 ONSC 270 (CanLII), essentially narrows the licensing exemptions available for Crown employees who provide legal services to clients other than the Crown. They must be licensed unless they have a specific exemption.