Breach of Privacy (Tort)

Abernethy v. Ontario, 2017 ONCA 340 (CanLII)

[15] The motion judge took a different approach with respect to Ms. Santone. Taking a generous view of the pleading, in favour of Ms. Abernethy, he concluded that there may be a basis for a claim based of the tort of breach of privacy: see Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. He therefore granted her leave to amend her pleading to allege that tort, specifically providing, however, that the amendment permitted was not to relate to the claims for misfeasance in public office, conspiracy, obstruction of justice or claims based upon specific legislation that does not apply to the claim in tort for breach of privacy.

[16] Ms. Abernethy appeals from this decision, too, making the same arguments with respect to the broader claims and submitting as well that having to pursue the breach of privacy claim, which lies against Ms. Santone alone, deprives her of her ability to pursue the other defendants on the basis of conspiracy. She submits that her damages cannot be fully appreciated in isolation from the conspiratorial actions of the others.

[17] For the reasons set out above, however, we see no basis for interfering with the motion judge’s findings and conclusions with respect to the array of broader claims put forward by Ms. Abernethy. The motion judge granted her leave to amend to pursue a breach of privacy claim against Ms. Santone and that matter will proceed as he directed.