Case Summary 4.17 Time to Recognize Invasion of Privacy as a TortUnder a Different Name: Jones v. Tsige88

88. Somwar v. McDonald's Restaurants of Canada Ltd., Ontario Superior Court of Justice.

Sandra Jones sued Winnie Tsige for invasion of privacy after learning that Tsige had inappropriately used her workplace computer to access Jones's personal account information at least 174 times. Both women worked at the same bank, and both were personally involved with the same man. Tsige was living with Jones's former husband; she wanted to find out if her common-law spouse was actually paying child support to Jones.

The trial judge dismissed the action on the basis that he was bound by the Court of Appeal decision in the Euteneier v. Lee,89 which predated the Somwar decision. There the appellant had "properly conceded in oral argument before this court that there is no free standing right to dignity or privacy under the Charter or at common law."

89. Intrusion upon seclusion, the Ontario Court of Appeal.

Now, however, the Court of Appeal allowed the action, awarding Jones $10 000 in damages (there being no financial loss). The Court conceded that the law had to evolve to protect individuals from unreasonable intrusion into their private lives. The new tort, "intrusion upon seclusion," was described thus:

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.

The key features of this cause of action are: (1) the defendant's conduct must be intentional or reckless; (2) the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and (3) 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.

Discussion Questions Based on your understanding of stare decisis, does this decision establish the tort of intrusion upon seclusion across Canada? What level of judicial recognition is required before you can say with certainty that the tort of intrusion upon seclusion exists in its own right? (Note that this precedent has yet to be followed in several provinces.)