Increasingly, whether it is with the burgeoning of the internet and social media, or simply the tenor of the times, we are routinely getting calls inquiring about civil actions for "harassment", specifically invasion of privacy or improper access to, or use of, confidential information. Not only is this unfortunate circumstance arising in the workplace but between competing business interests, medical and hospital record situations, and in debt collections, domestic disputes and even quarrels between neighbours.
Privacy has always been a fundamental value in Canadian law and recognized as important to the order of relationships between individuals, businesses, institutions and governments. However, lawyers have been hesitant to recommend actions for breach of privacy to their clients as our Courts, at least in Ontario, have been very cautious in their judicial approach. Until now, no distinct right of action for breach of privacy has been recognized as existing separate and apart from causes of action such as breach of confidence, defamation, nuisance or the like. However, a very recent decision of our Ontario Court of Appeal may have struck a seminal chord, at least in Ontario. On January 18th, 2012, Mr. Justice Sharpe for a unanimous Court including, Chief Justice Winkler and Associate Chief Justice Cunningham released the Decision in Jones v. Tsige (2012)108 O.R.(3d)141.
The facts of this case are simple. Neither Ms. Jones nor Ms. Tsige knew the other and while they worked for the same Bank they worked in different branches. After Ms. Jones had divorced her husband, Ms. Tsige formed a common law relationship with him, which relationship continued for about four years. During that four year period Ms. Tsige used her workplace computer to access Ms. Jones' personal bank accounts and information on at least 174 separate occasions. She did not record the information she viewed, nor did she distribute or publish it. It was her evidence on the Motion for Summary Judgment, (which evidence was not accepted for a variety of reasons) that she was involved in a financial dispute with Ms. Jones' former husband and accessed Ms. Jones' accounts to confirm whether he was paying child support to Ms. Jones. Ms. Jones became suspicious that Ms. Tsige was accessing her account and complained to the Bank. When confronted by the Bank Ms. Tsige admitted that she had looked at Ms. Jones' banking information, that she had no legitimate reason for so doing and that she understood it was contrary the Bank's code of business conduct and ethics and contrary to her professional responsibilities. Ms. Tsige apologized for her actions, insisted that they had ceased and was apparently contrite and embarrassed by her actions. The Bank suspended her for one week without pay and denied her a bonus.
Ms. Jones sued Ms. Tsige in the Ontario Superior Court of Justice by way of the Simplified Procedures. She alleged in her Statement of Claim that "her privacy interest in her confidential banking information had been irreversibly destroyed" and claimed damages of $70,000.00 for invasion of privacy and breach of fiduciary duty, and punitive and exemplary damages of $20,000.00. She moved before the Court for Summary Judgment to which Ms. Tsige responded with a Cross Motion to dismiss the action. The Motions Court Judge, the Honourable Mr. Justice Whitaker, ruled firstly that Ms. Tsige did not owe Ms. Jones a fiduciary obligation and dismissed that aspect of the claim. The Judge further found that the existence of privacy legislation protecting certain rights, and any expansion of those rights, ought be dealt with by statute as opposed to common law and absolutely dismissed Ms. Jones' action granting Ms. Tsige's Motion for dismissal. Ms. Tsige was awarded her costs of the Motion in the amount of $35,000.00.
Ms. Jones appealed to the Court of Appeal on the basis that the Motions Court Judge had erred in holding that Ontario law does not recognize a cause of action for invasion of privacy and erred in his Order of costs. Ms. Jones did not appeal the finding that Ms. Tsige did not owe to Ms. Jones a fiduciary obligation.
Justice Sharpe, in a carefully worded decision, made reference to various legal treatises and texts, along with journal articles and a variety of reported cases in Ontario and throughout Canada. He reviewed the history of the law of privacy, how it had been embraced by the Courts and how things may have changed with the onslaught of technology, the internet and the social media.
In his decision, Justice Sharpe acknowledged and embraced the well known and oft quoted pronouncements of Warren and Brandeis in their work "The Right To Privacy" of 1890 and that of Prosser of 1960, "Privacy". Professor Prosser identified a four-tort classification:
- intrusion upon the Plaintiff's seclusion or solitude, or into his private affairs;
- public disclosure of embarrassing private facts about the Plaintiff;
- publicity which places the Plaintiff in a false light in the public eye;
- appropriation for the Defendant's advantage of the Plaintiff's name or likeness.
In Jones v. Tsige, Justice Sharpe addressed primarily the first of the four, namely intrusion upon seclusion. He referred to the American Restatement (Second) of Torts (2010) wherein "intrusion upon seclusion" is defined as:
"One who intentionally intrudes, physically or otherwise, upon the seclusion of another for 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".
He then reviewed the Ontario case law and came to the conclusion that in Ontario, indeed throughout Canada, there had been no definitive statement from an appellate court whether an action primarily for intrusion upon seclusion existed. He did note that Ontario Judges had been loathe to dismiss such claims at the pleadings stage as disclosing no cause of action and that some Courts had awarded damages for such claims, and that the trend seemed to be leaning toward the possibility that such cause of action exists. Extending that trend, Sharp J. and his brethren, in Jones v. Tsige, allowed the Appeal of Ms. Jones.
The Court identified several key features of this cause of action of breach of privacy. First, the Defendant's conduct must be intentional or recklessness. Second, the Defendant must have invaded, without lawful justification, the Plaintiff's private affairs or concerns. Third, a reasonable person would regard the invasion of their privacy as highly offensive, causing distress, humiliation or anguish. The Court added that proof of harm to an economic interest need not be an element of the cause of action. In Jones v. Tsige the Court found, I venture to guess quite easily, that Ms. Tsige and her conduct met those tests.
After reading the above any of you who may feel encouraged, indeed anxious, to commence your own action for a breach of privacy for whatever improprieties may have befallen you or your clients may wish to stop, look and listen. The damages awarded by the Ontario Court of Appeal to Ms. Jones in this case were fixed in the amount of $10,000.00. While the Court ruled that proof of actual loss is not an element of the cause of action for intrusion upon seclusion (breach of privacy) it wrestled with the appropriate damages and approach to damages where monetary loss has not been suffered by the Plaintiff.
Referencing various texts and cases Justice Sharpe characterized such damages as "symbolic", "moral", and awarded "to vindicate rights and symbolize recognition of their infringement". Justice Sharpe embraced the thoughts of Professor Stephen M. Waddams, in his book, The Law of Damages, that a conventional range of damages is necessary to maintain consistency, practicability and fairness between one Plaintiff and another.
How is one's hurt feelings, embarrassment or mental distress to be measured? The appellate decision in Jones v. Tsige catalogues various Ontario cases and awards, and others from Manitoba and British Columbia. A concise but illustrative appendix is attached to the decision. Therein, damages, described as non pecuniary general damages (pain and suffering), range anywhere from $500.00 to $25,000.00, and aggravated, exemplary or punitive damages anywhere from $1,000.00 to $22,500.00.
In determining the quantum of damages in such cases the Court held they should be "modest but sufficient to mark the wrong that has been done". The range the Court has fixed by Jones v Tsige is up to $20,000.00. It identifies five factors that ought be considered in determining where in the range any particular case might fall:
- The nature, incidence and occasions of the Defendant's wrongful acts;
- The effect of the wrong upon the Plaintiff's health, welfare, social, business or financial position;
- Any relationship, whether domestic or otherwise, between the parties;
- Any distress, annoyance or embarrassment suffered by the Plaintiff arising from the wrong;
- The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the Defendant.
In terms of aggravated or punitive damages, Justice Sharpe suggested that they ought not necessarily be excluded but ought be reserved for exceptional cases calling for exceptional remedies. Predictability and consistency, he said, ought be paramount values in an area where symbolic and moral damages are awarded and that absent truly exceptional circumstances the total damages ought be held within the $20,000.00 range.
The Court recognized in Jones v. Tsige that this case clearly broke new ground, and made new law, in Ontario. Recognizing that, the Court exercised its discretion in departing from the usual order that costs follow the event. It ordered that the parties bear their own costs both in the first instance and on appeal, recognizing the novelty of the case and its impact upon the law.
In Ontario the monetary jurisdiction of the Small Claims Court is $25,000.00 exclusive of prejudgment interest and costs. Costs in that Court are, by its Rules and statute, prescribed and indeed modest. Therefore, given the range of non pecuniary damages that our highest Ontario Court has suggested, absent significant pecuniary claims, or the possibility of aggravated or punitive damages, one will need consider, and consider very carefully, the prudence of such action, the expense and cost implications of such action and the principle to be made, the object to be achieved or the breach of privacy to be avenged.