No Invasion of Privacy Tort in Ontario

The Ontario Superior Court of Justice issued a significant judgment today in which Justice Whitaker held that Ontario law does not recognize a common law invasion of privacy tort. More specifically, he held that he was bound by the Court of Appeal’s 2005 judgment in Euteneier v. Lee, in which the Court commented that there is no “free standing” right to privacy in assessing a privacy-related claim by a police detainee that was based in negligence, assault, civil conspiracy and the Charter. Justice Whitaker said:

While it is certainly the case that in Euteneier, the plaintiff was not suing on the basis of an intentional tort, the extent to which privacy rights are enforceable at law was squarely before the court for the purposes of determining the content of the duty of care owed by the police to the plaintiff while in custody. In my view, the inescapable conclusion, put quite plainly by the Court of Appeal in paragraph 63 of that decision, is that “there is no ‘free standing’ right to… privacy… at common law.”

Justice Whitaker departed from the Court’s well-known decision in Somwar v. McDonald’s Restaurants of Canada. Justice Stinson decided Somwar shortly after the Court of Appeal decided Euteneier and did not consider it in finding (on a summary judgment motion) that it is not settled law in Ontario that there is no tort of invasion of privacy.

Alex Cameron acted for the defendant.

Jones v. Tsige, 2011 ONSC 1475.

Case Report – Court articulates framework for privacy tort

Although there have been previous cases that have recognized the common law tort of invasion of privacy in Ontario and a few recent cases in which Ontario courts have made strong statements in refusing to strike claims based on the tort, the confines of the tort have not yet been clearly articulated. On September 21st, Deputy Judge Criger issued a small claims court judgement in which she articulated a form of test that balances an individual’s expectation of privacy in personal information against any countervailing interests in the information’s collection use and disclosure. Here is her six-part test:

  1. Is the information acquired, collected, disclosed or published of a kind that a reasonable person would consider private?
  2. Has the Plaintiff consented to acquisition or collection of the information?
  3. If not, has the information been acquired or collected for a legal process or public interest reason? If so, what is that reason?
  4. Has the Plaintiff consented to disclosure or publication of the information?
  5. If not, has the information been disclosed or published for a legal process or public interest reason? If so, what is that reason?
  6. Is the legal process or public interest reason put forward for acquisition, collection, disclosure or publication one that a reasonable person would consider outweighs the interest of the individual in keeping the information private?

The case is about a plaintiff who told his aunt that he was HIV positive in confidence and the aunt’s subsequent disclosure of this information to his mother. Deputy Judge Criger held that the plaintiff had established a breach but did not prove his damages.

Caltagirone v. Scozzari-Cloutier, [2007] O.J. No. 4003 (Ont. S.C.J.) (QL).