Novel tort of intrusion upon seclusion
In the case of Jones v. Tsige, 2012 ONCA 32 (CanLII), Sandra Jones uncovered a disconcerting violation of her privacy when she learned that her colleague, Winnie Tsige, who worked at a different branch of the same bank (Bank of Montreal), had been illicitly accessing and perusing her personal banking records. For about four years, Tsige used her workplace computer to access the Jones’ personal bank accounts at least 174 times. Notably, Tsige did not publish, distribute or record the information in any way. Nevertheless, faced with this breach of trust, Jones brought the action, seeking redress for the infringement she had endured. At the summary judgment motion, the action was dismissed; the motion judge found that the tort of invasion of privacy does not exist at common law in Ontario.
The matter ultimately landed in the Ontario Court of Appeal, where a landmark decision was rendered. The Court, cognizant of the evolving landscape of privacy rights, recognized and established a novel legal concept – the tort of intrusion upon seclusion.
The Court's decision laid down a framework for the intrusion upon seclusion tort, identifying three crucial elements for its establishment: (1) intentional or reckless conduct, (2) an invasion of privacy that is objectively reasonable, and (3) the resultant infliction of significant mental distress due to the invasion. The Court held that Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the Jones’ private bank records. The intrusion was intentional, constituting an unauthorized invasion of Jones's personal affairs, it would be considered highly offensive to a reasonable person and it caused distress, humiliation or anguish.
This ruling marked a pivotal moment in Canadian privacy law, as the Court acknowledged that individuals maintain a reasonable expectation of privacy, even within the domain of personal financial information.