LAW 1011 Jones v Tsige 2012 ONCA 32 Case Questions

ASSIGNMENT INFORMATIONCentre for Business
School of Management
Business Law
LAW1011
Assignment #1
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Instructions
This assignment asks you to answer 4 short answer questions based upon the case
excerpts from Jones v. Tsige 2012 ONCA 32. You will find the case summary you
should reference posted with the assignment instructions on BlackBoard.
This assignment is worth 15% of your final mark. Each question is equally
weighted. All answers should be typed, in full sentences and 1.5 spaced. You will
be graded on the quality of your writing and reasoning.
Each answer should be between 200-400 words. Focus on what is asked of you in
the question. All answers will be evaluated based upon the rubric that has been
posted to Blackboard.
Links have been provided in the excerpts to the decision as well as the prior
decision by the Ontario Superior Court of Justice. Where you see […] it indicates
that material has been removed.
All assignments are to be submitted via Blackboard.
Your answers must be your own work (see:
https://coned.georgebrown.ca/policies/plagiarism-academic-honesty/) No direct
quotes or citations should be used in your answers. If you choose to quote a
case, please limit the quote to one sentence, and be sure to cite the case
appropriately after by putting the case name in brackets afterwards. Aside from
this, everything should be in your own words.
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Questions
1. The decision of the Ontario Court of Appeal relies upon a variety of sources of
law. Identify two sources of law relied upon by the court and identify their
weight in decision making. Are they binding or persuasive? (25%)
2. In the Court of Appeal’s decision, at para. 4 Sharpe J.A. noted that Tsige “did
not publish, distribute or record the information in any way.” Should this
matter when it comes to liability? Should it matter when it comes to damages?
(25%)
3. Explain how this case helps us understand how the common law evolves. In
supporting your argument identify one case that we have discussed in class that
illustrates how the common law evolves. See Sharpe J.A.’s comments at
paragraphs 66 and 67 (25%)
4. What does this case tell us about concerns that businesses need to consider
when addressing how they handle sensitive information? (25%)
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Jones v. Tsige, 2012 ONCA 32 (CanLII), (excerpts)
Prior Proceedings: Jones v. Tsige, 2011 ONSC 1475 (CanLII),
Decision
[1] SHARPE J.A.: — Does Ontario law recognize a right to bring a civil action for damages for
the invasion of personal privacy?
[…]
Facts
[4] Jones and Tsige worked at different branches of the Bank of Montreal (“BMO”). Jones
maintains her primary bank account there. Jones and Tsige did not know or work with each
other. However, Tsige became involved in a relationship with Jones’ former husband. For
about four years, Tsige used her workplace computer to access Jones’ personal BMO bank
accounts at least 174 times. The information displayed included transactions details as well
as personal information, such as date of birth, marital status and address. Tsige did not
publish, distribute or record the information in any way.
[5] Jones became suspicious that Tsige was accessing her account and complained to BMO.
When confronted by BMO, Tsige admitted that she had looked at Jones’ banking
information, that she had no legitimate reason for viewing the information and that she
understood it was contrary to BMO’s code of business conduct and ethics and her
professional responsibility. Tsige explained then, and maintains in this action, that she was
[page246] involved in a financial dispute with the appellant’s former husband and accessed
the accounts to confirm whether he was paying child support to the appellant. Jones does
not accept that explanation as she says it is inconsistent with the timing and frequency of
Tsige’s snooping.
[…]
[10] The motion judge then reviewed the jurisprudence concerning the existence of a tort
of invasion of privacy. He observed that recent Superior Court decisions have refused to
strike out such claims at the pleading stage and that some academic writing indicates that
the tort may exist.
[11] The motion judge concluded, however, that the statement of Cronk J.A. in Euteneier v.
Lee (2005), 2005 CanLII 33024 (ON CA), 77 O.R. (3d) 621, [2005] O.J. No. 3896 (C.A.), at
para. 63, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 516 is, in his words, “binding
and dispositive of the question” of whether the tort of invasion of privacy exists at common
law in Ontario. […] Cronk J.A. observed, at para. 63, “[the plaintiff] properly conceded in
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oral argument before this court that there is no ‘free-standing’ right to dignity or privacy
under the Charter or at common law”. [page247]
[12] The motion judge added that given the existence of privacy legislation protecting
certain rights, any expansion of those rights should be dealt with by statute rather than
common law.
[…]
Issue 1. Does Ontario law recognize a cause of action for invasion of privacy?
(a) Introduction
[15] The question of whether the common law should recognize a cause of action in tort for
invasion of privacy has been debated for the past 120 years. Aspects of privacy have long
been protected by causes of action such as breach of confidence, defamation, breach of
copyright, nuisance and various property rights. Although the individual’s privacy interest
is a fundamental value underlying such claims, the recognition of a distinct right of action
for breach of privacy remains uncertain. As Adams J. stated in Ontario (Attorney General) v.
Dieleman (1994), 1994 CanLII 10546 (ON SC), 20 O.R. (3d) 229, [1994] O.J. No. 1864, 117
D.L.R. (4th) 449 (Gen. Div.), at p. 688 D.L.R., after a comprehensive review of the case law,
“invasion of privacy in Canadian common law continues to be an inceptive, if not
ephemeral, legal concept, primarily operating to extend the margins of existing tort
doctrine”.
[…]
[18] Professor Prosser’s article picked up the threads of the American jurisprudence that
had developed in the 70 years following the influential Warren and Brandeis article.
Prosser argued that what had emerged from the hundreds of cases he canvassed was not
one tort, but four, tied together by a common theme and name, but comprising different
elements and protecting different interests. Prosser delineated a four-tort catalogue,
summarized as follows, at p. 389:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his 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.
[19] Most American jurisdictions now accept Prosser’s classification and it has also been
adopted by the Restatement (Second) of Torts (2010). The tort that is most relevant to this
case, the tort of “intrusion upon seclusion”, is described by the Restatement, at 652B as:
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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.
[…]
[22] The following discussion will examine whether the common law recognizes a cause of
action for invasion of privacy. I will canvass case law from Ontario and other provinces and
examine federal and provincial legislation relating to privacy. For completeness, I will also
discuss the state of the law in foreign jurisdictions.
[…]
(b) Case law
[24] […]Ontario has already accepted the existence of a tort claim for appropriation of
personality and, at the very least, remains open to the proposition that a tort action will lie
for an intrusion upon seclusion.
[…]
[41] […] personal privacy and territorial privacy, are deeply rooted in the common law.
Personal privacy, grounded in the right to bodily integrity, protects “the right not to have
our bodies touched or explored to disclose objects or matters we wish to conceal”.
Territorial privacy protects the home and other spaces where the individual enjoys a
reasonable expectation of privacy. The third category, informational privacy, is the interest
at stake in this appeal.
[…]
[48] Tsige argues that it is not open to this court to adapt the common law to deal with the
invasion of privacy on the ground that privacy is already the subject of legislation in
Ontario and Canada that reflects carefully considered economic and policy choices. It is
submitted that expanding the reach of the common law in this area would interfere with
these carefully crafted regimes and that any expansion of the law relating to the protection
of privacy should be left to Parliament and the legislature.
[49] I am not persuaded that the existing legislation provides a sound basis for this court to
refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy.
In my view, it would take a strained interpretation to infer from these statutes a legislative
intent to supplant or halt the development of the common law in this area: see Robyn Bell,
“Tort of Invasion of Privacy — Has its Time Finally Come?” in Archibald and Cochrane, eds.,
Annual Review of Civil Litigation (Toronto: Carswell, 2005), at p. 225.
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[50] PIPEDA is federal legislation dealing with “organizations” subject to federal
jurisdiction and does not speak to the existence of a civil cause of action in the province.
While BMO is subject to PIPEDA, there are at least three reasons why, in my view, Jones
should not be restricted to the remedy of a PIPEDA complaint against BMO. First, Jones
would be forced to lodge a complaint against her own employer rather than against Tsige,
the wrongdoer. Second, Tsige acted as a rogue employee contrary to BMO’s policy and that
may provide BMO with a complete answer to the complaint. Third, the remedies available
under PIPEDA do not include damages, and it is difficult to see what Jones would gain from
such a complaint.
[52] Four common law provinces currently have a statutorily created tort of invasion of privacy:
British Columbia, [page257] Privacy Act, R.S.B.C. 1996, c. 373; Manitoba, Privacy Act, R.S.M.
1987, c. P125; Saskatchewan, Privacy Act, R.S.S. 1978, c. P-24; and Newfoundland, Privacy
Act, R.S.N.L., 1990, c. P-22. All four Privacy Acts are similar. They establish a limited right of
action, whereby liability will only be found if the defendant acts wilfully (not a requirement in
Manitoba) and without a claim of right. Moreover, the nature and degree of the plaintiff’s privacy
entitlement is circumscribed by what is “reasonable in the circumstances”.
[53] Under Quebec law, the right to privacy is explicitly protected both by arts. 3 and 35-37 of
the Civil Code of Québec, S.Q. 1991, c. 64 and by s. 5 of the Charter of Human Rights and
Freedoms, R.S.Q. c. C-12. See Robbins v. Canadian Broadcasting Corp. (1957), 1957 CanLII
430 (QC CS), 12 D.L.R. (2d) 35(Que. S.C.); Aubry v. Éditions Vice-Versa, 1998 CanLII 817
(SCC), [1998] 1 S.C.R. 591, [1998] S.C.J. No. 30; H. Patrick Glenn, “The Right to Privacy in
Quebec Law” in Dale Gibson, ed., Aspects of Privacy Law: Essays in Honour of John M. Sharp
(Toronto: Butterworths, 1980), at ch. 3.
[54] Significantly, however, no provincial legislation provides a precise definition of what
constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more
or less the same task as courts in provinces without such statutes. The nature of these acts does
not indicate that we are faced with a situation where sensitive policy choices and decisions are
best left to the legislature. To the contrary, existing provincial legislation indicates that when the
legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the
courts to define the contours of that right.
[55] As already indicated, most American states have recognized a right of action for invasion of
privacy rights as defined by the four categories identified by Prosser. ( JBB Note: Courts in New
Zealand and the UK also recognize rights to privacy see paras. 61-64 )
[…]
[66] The case law, while certainly far from conclusive, supports the existence of such a cause of
action. Privacy has long been recognized as an important underlying and animating value of
various traditional causes of action to protect personal and territorial privacy […]
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[67] For over 100 years, technological change has motivated the legal protection of the
individual’s right to privacy. In modern times, the pace of technological change has accelerated
exponentially. […] The Internet and digital technology have brought an enormous change in the
way we communicate and in our capacity to capture, store and retrieve information. As the facts
of this case indicate, routinely kept electronic databases render our most personal financial
information vulnerable. Sensitive information as to our health is similarly available, as are
records of the books we have borrowed or bought, the movies we have rented or downloaded,
where we have shopped, where we have travelled and the nature of our communications by
cellphone, e-mail or text message.
[68] It is within the capacity of the common law to evolve to respond to the problem posed by
the routine collection and aggregation of highly personal information that is readily accessible in
electronic form. Technological change poses a novel threat to a right of privacy that has been
protected for hundreds of years by the common law under various guises and that, since 1982
and the Charter, has been recognized as a right that is integral to our social and political order.
[69] Finally, and most importantly, we are presented in this case with facts that cry out for a
remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and
shocking. Any person in Jones’ position would be profoundly disturbed by the significant
intrusion into her highly personal information. The discipline administered by Tsige’s employer
was governed by the principles of employment law and the interests of the employer and did not
respond directly to the wrong that had been done to Jones. In my view, the law of this province
would be sadly deficient if we were required to send Jones away without a legal remedy.
(c) Elements
[70] I would essentially adopt as the elements of the action for intrusion upon seclusion the
Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat
here:
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.
[71] The key features of this cause of action are, first, that the defendant’s conduct must be
intentional, within which I would [page262] include reckless; second, that the defendant must
have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third,
that a reasonable person would regard the invasion as highly offensive causing distress,
humiliation or anguish. However, proof of harm to a recognized economic interest is not an
element of the cause of action. I return below to the question of damages, but state here that I
believe it important to emphasize that given the intangible nature of the interest protected,
damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
(d) Limitations
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[72] These elements make it clear that recognizing this cause of action will not open the
floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant
invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned
about their privacy are excluded: it is only intrusions into matters such as one’s financial or
health records, sexual practises and orientation, employment, diary or private correspondence
that, viewed objectively on the reasonable person standard, can be described as highly offensive.
[73] Finally, claims for the protection of privacy may give rise to competing claims. Foremost
are claims for the protection of freedom of expression and freedom of the press. As we are not
confronted with such a competing claim here, I need not consider the issue in detail. Suffice it to
say, no right to privacy can be absolute and many claims for the protection of privacy will have
to be reconciled with, and even yield to, such competing claims. A useful analogy may be found
in the Supreme Court of Canada’s elaboration of the common law of defamation in Grant v.
Torstar where the court held, at para. 65, that “[w]hen proper weight is given to the constitutional
value of free expression on matters of public interest, the balance tips in favour of broadening the
defences available to those who communicate facts it is in the public’s interest to know.”
[…]
[90] […] On balance, I would place this case at the mid- point of the range I have identified
and award damages in the amount of $10,000. Tsige’s intrusion upon Jones’ seclusion, this
case does not, in my view, exhibit any exceptional quality calling for an award of
aggravated or punitive damages.
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