Intrusion Upon Seclusion

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-01
CLNP Page ID:	272
Page Categories:	[Tort Law], [Privacy], [Interference of Reasonable Enjoyment (LTB)]
Citation:	Intrusion Upon Seclusion, CLNP 272, <6d>, retrieved on 2024-11-01
Editor:	Sharvey
Last Updated:	2023/12/22

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Larizza v. The Royal Bank of Canada, 2017 ONSC 6140 (CanLII)

[51] The elements of intrusion upon seclusion are:

a. The defendant’s conduct must be intentional or reckless;

b. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

c. A reasonable person would regard invasion as highly offensive, causing humiliation, or anguish.

(See Jones v. Tsige, 2012 ONCA 32 at paras. 70-71.)

[52] Proof of damages is not required, but the Court of Appeal has emphasized that “given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum”: Jones v. Tsige, supra, at para. 71. Therefore, if the plaintiff can establish the three elements of the tort, she may be entitled to a modest amount of damages.

Jones v. Tsige, 2012 ONCA 32 (CanLII)

Issue 1. Does Ontario law recognize a cause of action for invasion of privacy?

(a) Introduction

[18] Professor Prosser's article picked up the threads of the American jurisprudence that had developed in the 70 years following the influential Warren and Brandeis article. Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

[19] Most American jurisdictions now accept Prosser's classification and it has also been adopted by the Restatement (Second) of Torts (2010). The tort that is most relevant to this case, the tort of "intrusion upon seclusion", is described by the Restatement, at 652B as:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

...

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones' position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige's employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

(c) Elements

[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

[71] The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

[72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

[73] Finally, claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of expression and freedom of the press. As we are not confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims. A useful analogy may be found in the Supreme Court of Canada's elaboration of the common law of defamation in Grant v. Torstar where the court held, at para. 65, that "[w]hen proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public's interest to know."

...

[81] The four provincial privacy acts do not require proof of damage as an element of the cause of action. The Manitoba Privacy Act, however, is the only statute that provides specific guidance with regard to the determination of damages:

Considerations in awarding damages

4(2) In awarding damages in an action for a violation of privacy of a person, the court shall have regard to all the circumstances of the case including

(a) the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of that person;

(b) the effect of the violation of privacy on the health, welfare, social, business or financial position of that person or his family;

(c) any relationship, whether domestic or otherwise, between the parties to the action;

(d) any distress, annoyance or embarrassment suffered by that person or his family arising from the violation of privacy; and

(e) the conduct of that person and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant.

...

[86] Other cases have awarded punitive damages in consideration of society's abhorrence of the defendant's actions, a lack of remorse on the part of the defendant and the desire to promote specific deterrence: see [page266] Watts v. Klaemt; Lee v. Jacobson; Weber v. Jacobson, 1992 CanLII 8556 (BC SC), [1992] B.C.J. No. 132, 87 D.L.R. (4th) 401 (S.C.), revd 1994 CanLII 1419 (BC CA), [1994] B.C.J. No. 2459, 120 D.L.R. (4th) 155 (C.A.). In Hollinsworth v. BCTV, a division of Westcom TV Group Ltd., [1996] B.C.J. No. 2638, 34 C.C.L.T. (2d) 95 (S.C.), affd[1998] B.C.J. No. 241, 1998 B.C.C.A. 304 (C.A.), for example, the court assessed the plaintiff's damages for both breach of confidentiality and for the invasion of privacy at $15,000. The court there noted, at para. 27 (S.C.), that these damages were higher than usual for breaches of the Privacy Act in consideration of the "reprehensible conduct" of the defendant. In Hollinsworth, the defendant lied to a reporter, saying that he had consent to use a videotape of the plaintiff undergoing surgery to treat baldness. The video was then aired during a news broadcast. (d) Determining the quantum of damages

[87] In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:

(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.

[88] I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified. [page267] 3. Application to this case

TST-80383-16 (Re), 2017 CanLII 142740 (ON LTB)

39. I believe that the Ontario Court of Appeal’s commentary concerning invasion of privacy in the case of Jones v. Tsige 2012 ONCA 32 (CanLII), has resonance here:

“One who intentionally intrudes, physically or otherwise upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his [or her] privacy, if the invasion would be highly offensive to a reasonable person”.

40. I found AG to be sincere and straightforward in her evidence that she genuinely meant no harm to the Tenant in taking photographs through her window. Nonetheless, at the same time, I think a reasonable person would consider a covert campaign by a landlord to take photographs through a tenant’s windows –whatever the rationale - to be, as outlined by the Tenant’s representative, to be “…egregious and unacceptable”, particularly given the specific context of the Tenant, who suffered a recurrence of anxiety and panic as a result.

44. I think it is plain from my review of the case law (including Meija v. Cargini [2007] O.J. No. 437 (Ont. Div. Ct), which was submitted by DA on behalf of the Tenant), that I have jurisdiction to award general damages to the Tenant for pain and suffering. I am not persuaded, as urged by DA, that I have jurisdiction to award aggravated damages in this or any case, in the absence of a Divisional Court or binding court decision confirming same.

45. Accordingly, I shall order the Landlord to pay the Tenant the amount of $2,500.00 in general damages as requested. Based upon the totality of the evidence presented, and the medical/treatment documentation submitted by the Tenant, I believe that the nature and extent of this award is reasonable and appropriate.

Owsianik v. Equifax Canada Co., 2021 ONSC 4112 (CanLII)

[1] This appeal raises the question of whether a claim for intrusion upon seclusion can succeed against the collectors and custodians of private information (“Database Defendants”) where they are alleged to have acted recklessly in the storage of that information such that the information was improperly accessed by a third party.

[2] The tort of intrusion upon seclusion was recognized by the Court of Appeal eight years ago in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241 (“Jones”). According to the Appellants (“Equifax”), in Jones the Court of Appeal deliberately defined the elements of that tort narrowly so that the only people who can be held liable for the tort are defendants who intentionally and illegally intrude to access the private information, not defendants who collect and store that information. In other words, liability for this intentional tort (which does not require proof of damages) only attaches to the hacker of private information, not the party whose intentional or reckless behaviour may have allowed the hacking to occur.

[3] This appeal arises out of a certification motion where the Plaintiff (Respondent in this appeal) sought to have a class action certified against the Equifax, who are part of a large and well-known credit-reporting agency that collects financial information relating to millions of individuals and businesses. Equifax also sells credit protection and other services designed to protect against identity theft and other risks associated with the unauthorized disclosure of personal information. Equifax does not ask for permission from the people whose data it aggregates and stores.

J.A. RAMSAY J. (McWatt ACJSCJ concurring)

[53] I would set aside the certification of the class proceeding on the tort of intrusion upon seclusion. Unlike my colleague, I think that Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 has significant application to the case at bar. I rely on the passage cited by my colleague at paragraph 34 of her reasons. I take Brown J. to mean that novel claims that are doomed to fail should be disposed of at an early stage and that courts can do so even if this requires resolving complex questions of law and policy.

[54] The tort of intrusion upon seclusion was defined authoritatively only nine years ago. It has nothing to do with a database defendant. It need not even involve databases. It has to do with humiliation and emotional harm suffered by a personal intrusion into private affairs, for which there is no other remedy because the loss cannot be readily quantified in monetary terms. I agree that Sharpe J.A.’s definition of the tort is not necessarily the last word, but to extend liability to a person who does not intrude, but who fails to prevent the intrusion of another, in the face of Sharpe J.A.’s advertence to the danger of opening the floodgates, would, in my view, be more than an incremental change in the common law.

[55] I agree with my colleague (paragraph 43) that Equifax’s actions, if proven, amount to conduct that a reasonable person could find to be highly offensive. But no one says that Equifax intruded, and that is the central element of the tort. The intrusion need not be intentional; it can be reckless. But it still has to be an intrusion. It is the intrusion that has to be intentional or reckless and the intrusion that has to be highly offensive. Otherwise the tort assigns liability for a completely different category of conduct, a category that is adequately controlled by the tort of negligence.

[56] For that reason I respectfully disagree with the decision in Kaplan v. Casino Rama, 2019 ONSC 2025 and the motion judge’s decision in Tucci v. Peoples Trust Company, 2017 BCSC 1525. I distinguish Bennett v. Lenovo, 2017 ONSC 1082 on the basis that the manufacturer was said to have intruded by installing adware (a kind of spyware) on the computers that it sold to the public.

[57] The plaintiffs here are not without remedy. The essence of their claim has to do with risk to economic interests caused by disclosure of their financial information. It is not too much to ask that they prove their damages. See Babstock, paragraph 60. The tort of negligence protects them adequately and has the advantage that it does not require them to prove recklessness.

[58] I would allow the appeal, set aside the certification on the tort of intrusion upon seclusion and award costs to the appellant in the agreed amount: namely, $25,000.00 for the appeal and $11,300.00 for the leave application (the quantum of the leave costs were fixed by the court who granted leave).