Intrusion Upon Seclusion

In 2012 the Ontario court of Appeal recognized a new privacy tort: intrusion upon seclusion. That decision may have opened the floodgates with the Ontario Court now certifying a class action against the Bank of Nova Scotia for claims relating to various breaches of privacy by a bank employee.

It all started with Jones v. Tsige 2012 ONCA 32. In that case an employee of a bank, Winnie, was surreptitiously looking through Sandra’s banking records, some 174 times. The motive? Winnie had formed a relationship was Sandra’s ex-husband and was snooping, she claimed, for information about child support payments to Sandra. At first instance, the Ontario Superior Court of Justice denied the claim finding that there was no free standing right to claim damages for invasion of privacy in Ontario. The Court of Appeal reversed that finding and found that in today’s society, with personal data stored in electronic form and being more accessible, society as a whole has a general concern with respect to unauthorized access.

In Jones v. Tsige, the Ontario Court of Appeal developed the following test to determine if the tort of intrusion upon seclusion has been made out:

(i) the defendant’s conduct must be intentional (or reckless);
(ii) the defendant must have invaded the plaintiff’s private affairs or concerns; and
(iii) a reasonable person would regard the invasion as highly offensive.

The court went on to hold that proof of actual damages was not required and that a general cap on damages awarded would be up to $20,000. In Jones, the Plaintiff was awarded $10,000.

In June of 2014, the Ontario Superior Court of Justice did certify a class action involving some 600 Plaintiffs who allege a Bank of Nova Scotia employee accessed their personal banking information and that the bank should be held liable for the acts of its employee. In that certification proceeding, the court held:

“In this case, the bank created the opportunity for Wilson to abuse his power by allowing him to have unsupervised access to customers’ private information without installing any monitoring system….
[he] was given complete power in relation to the victims’ (customers) confidential information, because of his unsupervised access to their confidential information.”

Since Jones v. Tsige was decided the B.C. Supreme Court has not yet recognized intrusion upon seclusion as a cause of action, however, that door is still open if the appropriate case is brought before the B.C. courts.

Heidi Taylor is a lawyer with FH&P Lawyers. She can be reached at htaylor@fhplawyers.com or (250) 869-6014.