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No common law tort for invasion of privacy: judge

The case of Jones v. Tsige addresses one of the oldest issues in the common law world: Is there a free standing common law tort for invasion of privacy?

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The Ontario case of Jones v. Tsige involves the sort of prurient details you’d expect to see in front of Judge Judy on afternoon TV: soured romantic entanglements and a squabble over money.

But the case is on its way to the Ontario Court of Appeal to address one of the oldest issues in the common law world: Is there a free standing common law tort for invasion of privacy?

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Most people might assume such a right exists, but the issue has actually perplexed lawyers in Ontario and some other common law provinces for decades. Last week, Mr. Justice Kevin Whitaker of the Ontario Superior Court of Justice answered the question in a brief 9-page summary judgment ruling: “I conclude that there is no tort of invasion of privacy in Ontario.”Judge Whitaker’s decision, however, is not likely to be the end of it. In an interview on Monday, Christopher Du Vernet, lawyer for the plaintiff Sandra Jones, said his client has instructed him to take the matter to the Ontario Court of Appeal. How the appellate court handles the matter could prove to be of great interest throughout the common law world. Mr. Du Vernet says of the case:

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“It’s a real sleeper in the sense that its implications are far reaching. … Our fear is that if this remains the law, it will literally be open season on records that people have assumed will be confidential.”

Courts have bumped into the issue before. In some instances, judges have awarded token damages. But these decisions tend to be from lower courts that lack the clout to set precedent. For the most part, senior courts have been reluctant to find that being a snoop is an actionable wrong at common law.

Four common law provinces, Newfoundland and Labrador, British Columbia, Saskatchewan and Manitoba, have dealt with the common law vacuum by passing laws that create a statutory tort for invasion of privacy. Quebec, a civil law jurisdiction, provides the right in art. 35 of the Civil Code.

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Just because there is no right to sue for invasion of privacy under the common law doesn’t mean there is no right to privacy in Ontario at all.

Alex Cameron, counsel for the defendant, argued in court that the law already recognizes several different forms of privacy through several specific statutes, such as the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), the provincial Personal Health Information Protection Act, the provincial Freedom of Information and Protection of Privacy Act and Ontario’s Municipal Freedom of Information and Protection of Privacy Act.

The existence of those laws shows that legislators have given privacy a lot of thought. It should therefore be for the legislature to decide where to erect privacy protections, not the courts, Mr. Cameron argued in his factum:

“Creating a common law tort of invasion of privacy would interfere with the myriad [of] carefully crafted privacy regimes described above. … The concept of privacy is too ambiguous and broad to be able to be covered adequately in one cause of action.”

Judge Whitaker agreed. Since both the federal and provincial legislatures have sought to protect privacy in those specific situations, those governments could also have set up broader protections if they so desired. “In Ontario, it cannot be said that there is a legal vacuum that permits wrongs to go unrighted — requiring judicial intervention,” the judge wrote.

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If ever there was a case where the common law right might be found, this was arguably it.

Winnie Tsige, an employee of the Bank of Montreal, was caught accessing the private banking records for a BMO customer, Sandra Jones. Ms. Tsige admitted to calling up the records 174 times between August 2006 and July 2009, even though her job at the bank gave her no work related reason to pry into Ms. Jones’ affairs. The research was entirely personal. Ms. Tsige was at the time in a financial dispute with a common-law spouse who had previously been married to Ms. Jones. Ms. Tsige was spying on Ms. Jones’ financial records to see how much money her common-law spouse might have been paying to Ms. Jones for child support.

Ms. Tsige admitted the wrongdoing, apologized, and was disciplined by the bank. Although she viewed the records on the computer, she never printed the material or shared the information with anyone.

Because this case dealt with banking information, the plaintiff might have sought recourse under PIPEDA. Trouble is, Ms. Jones is also a BMO employee. She didn’t want to jeopardize her career by suing her employer, especially when the wrong wasn’t really committed by BMO, but rather another employee who admitted breaking the employer’s rules.

“Our client is employed by the bank, so she’s naturally been reticent to sue her own employer,” Mr. Du Vernet says. “In our view, she shouldn’t be obliged to do so. The primary remedy should always be against the perpetrator or the wrong doer.”

Financial Post

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