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LAW 122 Ch 4 Privacy.doc

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Ryerson University
Law and Business
LAW 122
Stan Benda

Law 122: Handout for Chapter 4 – Invasion of Privacy (January 2012) Canada and various provinces have legislation that protects personal information held by the various levels of government and by the private sector. In addition, the Canadian Charter of Rights and Freedoms protects Canadians from unreasonable searches conducted by law enforcement and other government agencies. The ability of individual Canadians to sue each other in tort law for an invasion of privacy varies, however, from one part of the country to another. In other countries, such as England and the United States, a common law tort of invasion of privacy exists. The United States recognizes four independent torts that all relate to privacy. In Canada, four provinces (Newfoundland, Manitoba, Saskatchewan and British Columbia) have created a statutory tort of invasion of privacy. Here is a portion of the Newfoundland legislation as an example although the legislation does vary among the provinces: 3. (1) It is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of an individual. (2) The nature and degree of privacy to which an individual is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, regard being given to the lawful interests of others; and in determining whether the act or conduct of a person constitutes a violation of the privacy of an individual, regard shall be given to the nature, incidence, and occasion of the act or conduct and to the relationship, whether domestic or other, between the parties. Other provinces had no grounds for private legal action. However, the Ontario Court of Appeal ruled in Jones v. Tsige, 2012 that the tort of Intrusion upon Seclusion now exists in Ontario. This is one of the four American torts of privacy. Jones v. Tsige, 2011 ONSC 1475, 2012 ONCA 32 Link to the case: Facts: The Plaintiff Sandra Jones and the Defendant Winnie Tsige worked at different branches of the Bank of Montreal (BMO). Over the course of four years and on 174 occasions, Ms. Tsige accessed and reviewed on her computer screen at work, Ms. Jones’ private banking records. Do you think this conduct should be unlawful (considered a tort)? After being caught doing this by BMO, Ms. Tsige acknowledged that she had no legitimate purpose in reviewing Ms. Jones’ records. She apologized and was disciplined by BMO. Ms. Jones sued Ms. Tsige for the tort of invasion of privacy and sought general, punitive and exemplary damages and a permanent injunction. Both parties moved for summary judgment (whether there is an issue that requires a trial). Superior Court Decision: In December 2010, Superior Court Justice Whitaker issued his decision finding that there is no tort of invasion of privacy at common law. The Court accepted Ms. Tsige’s interpretation of the decision of the Court of Appeal in Euteneier v. Lee (2005) (cited in your textbook) as determining that a tort of invasion of privacy does not exist in Ontario. Furthermore, the Court noted that Ms. Jones had a right of complaint against the bank under federal legislation. Therefore the lower court did not accept the suggestion that Ms. Jones would be without any remedy for a wrong following the court’s conclusion that there was no tort for the invasion of privacy. Ms. Jones appealed the decision of the Superior Court to the Ontario Court of Appeal. 1 Decision of the Ontario Court of Appeal (per Sharpe JA): The Court accepted the American classification of four different privacy torts, each of which has different elements and protects different interests. The four torts that protect the right to privacy are: 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his or her private affairs. 2. Public disclosure of embarrassing private facts about the plaintiff. 3. Publicity which places the plaintiff in a false light in the public eye. 4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. The Court focused its attention on the first tort, intrusion upon seclusion, and asked whether the common law recognizes a cause of action for invasion of privacy in this regard. It concluded that Ontario has already accepted the tort of the appropriation of personality (which is discussed in the textbook), the fourth type of tort outlined above. It further held that the time has come to recognize that the tort of intrusion upon seclusion does exist at common law. The Court noted that there has not been a definitive statement from an appellate court in Canada about whether there is a common law cause of action for the tort of intrusion upon seclusion, although there has been a clear trend to leave open the possibility that such a tort does exist. Moreover, the common law has historically protected privacy in various guises, and Canadian Charter jurisprudence recognizes that privacy 1 is a
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