Intrusion Upon Seclusion

On January 18, 2012 Ontario’s highest court recognized a common law right to privacy by recognizing a right of action for “intrusion upon seclusion”. This is an important decision that could have a significant impact on Ontario’s legal landscape.

The Case

In the case which brought on this decision, one bank employee, Ms. Tsige, looked at the private bank records of a co-worker, Ms. Jones, who was having a common law relationship with her former husband. The court ordered Ms. Tsige to pay Ms. Jones $10,000 in damages.

To obtain damages for this new tort, a person must prove:

1. the actions were intentional;
2. the person/entity must have invaded, without lawful justification, the plaintiff’s private
   affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish

A person is not required to prove any actual loss.

Impact of this New Tort on Ontario Workplaces

It is too early to tell how this decision will impact employment practices in Ontario. At the very minimum, it should give employers pause before monitoring an employee’s private email unless they has the explicit right to do so.

We will be following this case closely, including whether it is appealed to the Supreme Court of Canada. If you have any questions about the right to privacy, please contact us at [email protected].