Saturday, January 21, 2012

Contrasting Intrusion upon Seclusion and Breach of Privacy by Greg

The Ontario Court of Appeal's landmark decision in Jones v. Tsige, 2012 ONCA 32 establishes a common-law tort of "intrusion upon seclusion" covering some of the territory associated with tort actions for breach of privacy. But while Sharpe J.A. refers extensively to the statutory torts which exist in several provinces including Saskatchewan, there are some key differences between the new common-law tort and the standards applicable to Privacy Act claims to date. Indeed, the Ontario Court of Appeal expressly followed principles set out in U.S. tort law rather than those from Canadian provincial statutes - but in so doing, it raised the question of whether courts interpreting provincial privacy statutes will do the same.

Sharpe J.A. set out the elements of the new tort at para. 71 of Jones v. Tsige:

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.

Compare the third element in particular to Saskatchewan's Privacy Act, which on its face establishes no obligation on the part of a plaintiff to meet the standard of demonstrating that the defendant's action was "highly offensive". Instead, an action may be brought based on any breach of privacy which is "wilful and without claim of right" (s. 2), including a list of specific actions (s. 3); the obligation then lies on the defendant to prove the application of a defence (s. 4).

The elements of the tort of breach of privacy as defined to date were set out by Ottenbreit J.A. in Bigstone v. St. Pierre, 2011 SKCA 34 at para. 34:

At this stage of the development of the jurisprudence respecting the Act, a claim must contain allegations so that, at a minimum, the following is clear:

1.  the action is pursuant to the Act;

2. there is an act or actions which are claimed to be a violation of privacy which comes within the arguable scope of the Act;

3.  the privacy is that of a person;

4.  the type of privacy interest violated is generally identifiable; and

5.  the violation is wilful and without claim of right.

But to what extent will this standard - acknowledged by Ottenbreit J.A. to represent only an early stage of the development of the law under provincial Privacy Acts - continue to apply in the wake of Jones v. Tsige?

One plausible interpretation would suggest that the more onerous test which must be met by a plaintiff under the common-law tort set out by Sharpe J.A. is justifiable in the absence of legislative action to provide greater privacy protection. However, it may also be argued that the goal of legislators in establishing statutory torts was to allow courts to determine the precise contours of actionable breaches of privacy; indeed, Sharpe J.A. noted precisely this intention at para. 54 of Jones v. Tsige. Defendants facing claims for breach of privacy under statute may thus be expected to argue that the element of offensiveness should be imported into the definition of the statutory tort - and it remains to be seen whether the elements of the common-law tort set out in Jones v. Tsige and the statutory causes of action under provincial statutes will eventually intersect.

Meanwhile, Sharpe J.A. did make clear at para. 82-84 and 87 of Jones v. Tsige that the assessment of damages under the new tort of intrusion upon seclusion will be based on the principles set out in existing Privacy Acts and associated cases. As a result, practitioners in provinces with statutory torts will have reason to keep a close eye on case developments in intrusion upon seclusion.

For more on Jones v. Tsige, see further posts from Barry Sookman, Dan Michaluk, Mark Hayes and Omar Ha-Redeye.

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at if you require legal advice related to a breach of privacy.

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