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Invasion of Privacy


The Tort of Intrusion Upon Seclusion. Jones versus Tsige, Ontario Court of Appeal.
 
One of the issues that was facing lawyers in Ontario is whether or not there should be a right of action for intrusion upon seclusion. As personal injury lawyers, we often are consulted by clients seeking to know their rights in relation to various aspects of privacy and in particular, the protection of privacy and causes of action they could bring when their privacy has been violated.
 
The courts have long protected the various causes of action in relation to violation of privacy rights. For instance, there are various torts available to address breaches of privacy such as breach of confidence, breach of copyright, nuisance and defamation. There are also torts which protect privacy as it relates to property.
 
In the case of Jones versus Tsige, Jones discovered that Tsige had been looking at her banking records. Both parties worked at the same bank. Tsige was in a common-law relationship with Jones’ former husband. Tsige, contrary to the policies of the bank, reviewed Jones’ banking records many times over a number of years. Jones sued claiming various damages and alleged breach of privacy. On motion, a judge dismissed the case holding that in Ontario, the law does not recognize a cause of action for invasion of privacy. Jones appealed the decision to the Ontario Court of Appeal. The question before the Ontario Court of Appeal was whether or not Ontario law recognized a right to bring a civil tort action for damages on the basis of invasion of personal privacy, the tort of intrusion upon seclusion. The Court of Appeal unanimously held that persons in Ontario have the right to bring civil tort actions seeking damages for invasion of privacy. This decision changed the law in Ontario.
 
The Court classified privacy torts generally as follows:
 
1. Intrusion upon a person’s seclusion or solitude or into the person’s private affairs;
2. Public disclosure of embarrassing private facts about a person;
3. Publicity which places a person in a false light in the public eye; and
4. Appropriation, for the at fault party’s advantage of another parties name or likeness.
 
In Jones versus Tsige, the Ontario Court of Appeal categorized what occurred to Jones as intrusion upon seclusion. The court commented as follows:
 
 “In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action what amount to an incremental step that is consistent with the role of the court to develop common law in a manner consistent with the changing needs of society”.
 
The Court of Appeal explained the tort of intrusion by seclusion as follows:
 
“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.”
 
 
Some of Your Statutory Privacy Rights as of 2013
 
The Court also discussed section 8 Charter rights and identified three distinct privacy interests:
 
1. personal privacy
2. territorial privacy
3. informational privacy
 
Although the Charter would not necessarily apply to actions between private parties, the Court did indicate that protecting privacy within the context of tort law was consistent with developing the common law to reflect Charter values.
 
The Court reviewed privacy legislation such as the Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Health Information Protection Act (PHIPA), the Freedom of Information and Protection of Privacy Act (FIPPA),the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and the Consumer Reporting Act (CR), as well as privacy law and legislation in other jurisdictions.
 
The Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) protect the privacy of individuals with respect to their personal information held by provincial and local government organizations. 
 
The Personal Health Information Protection Act (PHIPA) protects the privacy of individuals with respect to their personal health information held by health information custodians. 
 
It is the responsibility of the Office of the Information and Privacy Commissioner (IPC) to ensure that government organizations and health information custodians abide by the requirements of the privacy legislation that applies to them.
 
To learn more about your privacy rights under FIPPA and MFIPPA, please contact one of our lawyers.
 
Under FIPPA and MFIPPA, “personal information" means recorded information about an individual. This may include the individual’s name, address, sex, age, education, medical or employment history – and any other information about the individual. FIPPA and MFIPPA require government organizations to protect the privacy of individuals with respect to the personal information in their possession. There are specific rules on how they may collect, use, retain, disclose and dispose of personal information. If an individual feels that a government organization has not complied with FIPPA or MFIPPA with respect to the handling of personal information, he or she may file a complaint with the IPC.
 
Under PHIPA, “personal health information” means identifying information about an individual in oral or recorded form, if the information relates to the physical or mental health of the individual. For example, personal health information includes family health history, information about visits to a doctor and the Ontario health card number. PHIPA requires health information custodians to protect the privacy of individuals with respect to the personal health information in their possession. There are specific rules on how they may collect, use and disclose personal health information. If an individual feels that a health information custodian has not complied with PHIPA with respect to the handling of personal health information, he or she may file a complaint with the IPC. 
The law of tort develops to allow persons injured or harmed by others to claim damages and other orders to protect their rights and interests.  In Jones versus Tsige, the Ontario Court of Appeal simply expanded the law of privacy to accommodate the needs of a changing society.
If you have been injured as a result of the actions or omissions of another person whether it be that you were physically injured as the result of an accident or were psychologically or mentally injured or your reputation was harmed as a result of someone’s breach of your privacy rights, there are causes of action that protect you. 
 
In addition to general damages for pain and suffering, a person injured in Ontario may be entitled to a number of other damages such as loss of expectation of life, loss of amenities, loss of income, loss of past income, future loss of income, out-of-pocket expenses, past medical expenses, future care costs expenses, loss of competitive advantage, other economic losses, punitive and aggravated damages, to name a few.
 
To learn more about how our Ottawa personal injury law firm can assist you with your accident or injury case, please call us for a free consultation at 613-315-4878.
 
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