New personal privacy tort in Ontario – what are the implications?

Anyone with even a passing interest in privacy law in Canada would now know that the Ontario Court Appeal recently recognized a a tort of “intrusion upon seclusion” in its recent decision of Jones v. Tsige.

In this case, Sandra Jones sued Winnie Tsige for surreptitiously looking at Jones’ banking records. Both women happened to be employees of the Bank of Montreal (BMO) and Tsige had formed a common-law relationship with Jones’ former husband. As a bank employee, Tsige had full access to Jones’ banking information and, contrary to the bank’s policy, looked into Jones’ banking records at least 174 times over a period of four years.

The technology and privacy blogs have all been dissecting the decision since its release last week. Here is a sample of some of the discussion:

Banking your secrets just got safer – invasion of privacy tort recognized: Canadian Technology & IP Law

Ontario recognizes privacy tort of intrusion upon seclusion: Barry Sookman

Ontario Court of Appeal awards damages for invasion of personal privacy: James Gannon

Suing for Snooping – Privacy Intrusion Actionable in Ontario: Barry Sookman again (on the “siIP/ITs” blog this time)

Lexpert contacted one of Canada’s top privacy experts – Barbara McIsaac of Borden Ladner Gervais – to get her views on the implications of the decision.

One of the interesting issues for McIsaac is the relationship between this new tort and Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). In Jones v. Tsige, the court said that the existence of PIPEDA did not preclude damages because:

While BMO is subject to PIPEDA, there are at least three reasons why, in my view, Jones should not be restricted to the remedy of a PIPEDA complaint against BMO. First, Jones would be forced to lodge a complaint against her own employer rather than against Tsige, the wrongdoer. Second, Tsige acted as a rogue employee contrary to BMO’s policy and that may provide BMO with a complete answer to the complaint. Third, the remedies available under PIPEDA do not include damages and it is difficult to see what Jones would gain from such a complaint.

In this case, McIsaac, points out,

The violator was an employee of the bank acting in violation of bank procedures and policies and the Court recognized that PIPEDA likely did not apply to her personally and the bank itself was likely not in violation of its obligations under PIPEDA.

McIsaac wonders how the court would react in another case where there is a violation by an organization:

Would one be able to sue the organization, or would the court say no – you must follow the PIPEDA remedy and complain to the Commissioner, then sue in Federal Court.

And to take it even further, will this mean a flood of privacy class actions against organizations? As Sookman points out in his blog:

The decision could result in an increase in privacy litigation and, in particular, privacy class actions (as proof of pecuniary damages is not a requirement of the tort).

Privacy law is starting off to a roaring start in 2012!

Tim Wilbur

One comment on “New personal privacy tort in Ontario – what are the implications?

Trackbacks/Pingbacks

  1. Case Law: Jones v Tsige – the Ontario Courts recognise a privacy tort – Hugh Tomlinson QC « Inforrm's Blog - February 11, 2012

    […] “New personal privacy tort in Ontario – what are the implications?“, Lexpert Magazine blog […]

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