Ontario court ruling that establishes a civil action for privacy breaches is a “game-changer” for defence counsel: lawyer

The Ontario Court of Appeal’s decision in Jones v. Tsige, which found a right to a civil action for breach of privacy, may be a “game-changer” for insurance defence counsel.

“We have this [data breach] case out there, and it may well change the landscape,” Andrea Laing, a partner of Osler Hoskin and Harcourt LLP, told a Chartis-sponsored event in Toronto on Apr. 11. “We should pay attention to it.”

In Jones, Sandra Jones, a customer and employee of the Bank of Montreal, became aware that another bank employee, Winnie Tsige, had snooped in Jones’ personal financial records at the bank 174 times over a period of four years. Jones was the former spouse of an individual with whom Tsige was involved in a relationship.

Jones and Tsige apparently did not know each other but Tsige took advantage of her employment at the bank to snoop in Jones’ banking records.

In its ruling on the matter, the Ontario Court of Appeal found there is a cause of action in tort for invasion of privacy. The court says an element of the civil action would include, among others things: “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.”

Laing said these boundaries of the new tort remain somewhat vague. They may be better defined in the future through more civil actions related to data breaches. But defence counsel are particularly worried about the suggestion that the absence of a proven economic harm, the reason why many actions have failed before, may no longer be an avenue for dismissing an action.

“One of the problems we have with a test that doesn’t really create a bright line [is that] it is going to be very difficult to get future cases to be struck at a preliminary stage,” Laing said. “Indeed, in some cases, it may be necessary to take it all the way to trial just to demonstrate [the case doesn’t meet the test]. Obviously, this raises the costs of settlement. It raises defence costs.”