Privacy tort recognized by Ontario Court of Appeal

The Ontario Court of Appeal issued a very important decision today that recognizes an “intrusion upon seclusion” tort.

Under Ontario law it is now clear that individuals can sue for breach of privacy based on proof of:

1. an intentional unauthorized intrusion;
2. which is an intrusion upon private affairs or concerns (i.e., that breaches a reasonable expectation of privacy); and
3. that is made in circumstances that are highly offensive to the reasonable person.

If these elements are proven, harms that justify the award of moral damages will be presumed. Such damages will be awarded “to mark the wrong that has been done” in an amount that does not ordinarily exceed $20,000, with an amount being set based on:

1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff‟s health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

The Court stressed that valid claims for intrusion upon seclusion will only arise “for deliberate and significant invasions of privacy” and also said that the law will develop affirmative defenses based on countervailing claims for the protection of freedom of expression and freedom of the press.

Jones v. Tsige, 2012 ONCA 32.