In the landmark case of Jones v. Tsige 2012 ONCA 32, issued on January 18, 2012, the Ontario Court of Appeal extended the right to privacy.
In that case Tsige, a BMO employee, accessed confidential records of Jones, another BMO employee, while Tsige was in a relationship with Jones’ former husband. BMO disciplined Tsige for breach of its code of conduct, however the question before the Court of Appeal was whether Jones has a right to seek a remedy in the Courts for breach of privacy.
Never before has the right of “intrusion upon seclusion” or right of informational privacy been adopted in Canadian courts, although there has been some leaning in that direction in other cases. As a result, the Ontario Court of Appeal extensively canvassed the case law, both Canadian and foreign, in addition to other legal writing.
The Ontario Court of Appeal recognized the reasonable right of a person to keep certain information private, depending on the circumstances. It confirmed the existence of a right of action for “intrusion upon seclusion” or more simply, the unreasonable intrusion upon the privacy of another: “One who intentionally [i.e. deliberately] 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.” [para 70].
The claim is not absolute, and may give rise to defenses. In addition, awards of damages are more likely to be, in the Court of Appeal’s words, “modest”.
Notwithstanding this, where a person accesses another’s personal information without consent, reason or mere error, the person whose privacy has been infringed may now seek remedy in the Courts (in Ontario at the very least).
The case can be found at: http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htmShare