Legal Blog

Privacy

We all know that existing legislation is in place to govern when personal information may or may not be divulged. This legislation has various enforcement avenues. However, is there a civil cause of action for breach of the legislation or breach of privacy? This question was answered in Jones v. Tsige, a 2012 Ontario Court of Appeal decision.

 Breach

 Jones and Tsige worked at different branches of the same bank, but had never met each other. Unbeknownst to Jones, Tsige was the common law spouse of Jones’ ex-husband. As a bank employee, Tsige had full access to the banking information of all bank customers, including Jones. Contrary to bank policy, Tsige decided to peek at Jones’ banking records. It was so much fun that Tsige peeked at least 173 more times over four years. Somehow, Jones discovered this breach of privacy and was a touch peeved. Actually, she was more than peeved; she was downright outraged.

 After she was caught, Tsige was contrite and embarrassed; the bank suspended her for a week without pay and denied her a bonus. However, that was not enough for Jones. She sued Tsige for $70,000 and punitive damages of $20,000.

 The question was not whether Tsige breached Jones’ privacy; she certainly did. The question was whether the law recognised breach of privacy as a cause of action.

 Categories

 The Court noted that, in the United States, there were four categories of tort regarding privacy:

 – Intrusion upon a plaintiff’s seclusion or solitude or into his private affairs.

– Public disclosure of embarrassing private facts about a plaintiff.

– Publicity that places the plaintiff in a false light in the public eye.

– Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

 The Court stated that, on the facts as presented, if Jones had a cause of action in Ontario, then it would have to be under the 1^st category.

 Statute

 Tsige argued that privacy was dealt with by PIPEDA (Personal Information Protection and Documents Act) and that the Court ought not allow a private cause of action for breach of privacy. The Court disagreed. PIPEDA gives no remedy to an aggrieved party. Further, the Charter recognises privacy as a fundamental value.

 After reviewing many relevant authorities in Canada, the Commonwealth, and the United States, the Court decided to confirm the existence of a right of action for intrusion upon seclusion and adopted, with some variation, the formulation of it as set out in the United States.

 The key features of the tort follow: first, the conduct must be intentional, which includes reckless; second, the person must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. Note that proof of harm to an economic interest is not an element of the cause of action (i.e. the plaintiff does not have to demonstrate a monetary loss arising out of the breach).

 The Court was clear that the right of action is limited; individuals who are overly sensitive about their privacy need not apply. Actionable intrusions are those “into matters, such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that viewed objectively, on the reasonable person standard, can be described as offensive.”

 Damages

 The Court was not about to let this cause of action garner United States-style damages. It referred to the damages, for which there are no provable pecuniary losses, as symbolic or moral and held that the damages should be awarded based on the following considerations:

 “1. the nature, incidence and occasion of the defendant’s wrongful act;

 2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;

 3. any relationship, whether domestic or otherwise, between the parties;

 4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

 5 the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.”

 The Court decided that Tsige committed the tort of intrusion upon seclusion; her acts were intentional, caused distress, and would be viewed as highly offensive to a reasonable person.

 Tsige’s actions were deliberate, repeated, arose out of domestic matters, and caused Jones to be very upset. Conversely, Tsige had apologised and Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial situation. The Court placed the facts at the mid-point of the damages range and awarded damages of $10,000. The Court held that the facts did not warrant aggravated or punitive damages.

 Costs

 Because the facts were so unusual and the issue was so novel, the Court declined to award costs for any of the proceedings. This may have caused a bit of consternation to Jones and her lawyer. The action made it through a summary judgment motion and a difficult appeal. Either Jones or her lawyer or both took a financial bath on this action.

 ***

 GARNISH

 We often note that, at times, we cannot understand how a case got as far as a hearing because it seems so obvious, after reading the decision, what the result would be. One such case is Royal Bank v. Sadia Security International Inc., a 2011 decision of the Ontario Divisional Court.

 Claim

 The bank had a judgment against an individual for $111,000. It garnished a corporation and the corporation failed to pay anything. The bank then brought a motion against the corporation for failure to pay.

 The information is sketchy, but it seems that the motions judge found as a fact that the corporation had paid the individual money in the face of the garnishment and was therefore liable to the Bank for breach of its garnishment obligations.

The motions judge decided that the corporation should pay the Bank $4,000 immediately and $2,000 per month until the judgment was fully paid. The individual appealed.

 Appeal

 The Divisional Court stated that the bank had adduced no evidence to demonstrate that the corporation had owed specific amounts to the individual and that, implicitly, the motions judge believed that the amounts the corporation paid were compensatory.

 Since the monies paid and being paid were to compensate the individual for services rendered, the Wages Act applied and only 20% of the monies could be attached. Accordingly, the Divisional Court set aside the order and held that the corporation should pay only 20% of the amounts that it actually pays to the employee for compensation.