January 20, 2012 by Canadian Underwriter
The Ontario Court of Appeal has recognized the invasion of a person’s privacy as a common law tort, and not just an infraction under the Personal Information Protection and Electronic Documents Act (PIPEDA)
In Jones v. Tsige, the appellant, Sandra Jones, discovered that the respondent, Winnie Tsige, had been looking at her banking records without her knowledge or permission. Tsige and Jones did not know one another, but they both worked for the same bank and Tsige had formed a common-law relationship with Jones’ ex-husband.
Tsige had argued that it is not open to the court to adapt the common law to deal with the invasion of privacy on the ground that privacy is already the subject of the PIPEDA legislation. “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,” wrote Justice Robert J. Sharpe in the decision.
Sharpe noted PIPEDA is federal legislation dealing with ‘organizations’ that are subject to federal jurisdiction. While the bank that employed both Jones and Tsige is subject to PIPEDA, Sharpe listed three reasons why Jones should not be restricted to the remedy of a PIPEDA complaint against the bank.
•Jones would be forced to lodge a complaint against her own employer, rather than against Tsige, the wrongdoer.
•Tsige acted as a rogue employee of the bank, contrary to the banks’ policy, and that may provide the bank with a complete answer to Jones.
•The remedies available under PIPEDA do not include damages, and thus it is difficult to see what Jones would gain from such a complaint.
“In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion,” Sharpe wrote. “Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.”
Sharpe awarded ‘moral’ damages in the amount of $10,000.