Law Times

PAGE 4 NEWS January 30, 2012 • Law Times Lawyers divided on impact of new privacy ruling BY JULIUS MELNITZER For Law Times January decision in Jones v. Tsige that recognized a new common law cause of action for invasion of privacy. "I don't think business has any- L thing substantive to worry about," says Patrick Flaherty of Torys LLP. "The court was very sensitive to the floodgates argument made by the defence and responded by putting clear limits on the new tort." Indeed, the court didn't estab- lish the broad tort of invasion of privacy but limited the cause of action to intrusion upon seclu- sion and specifically confined its decision to the particular facts of the case before it. The court ruled that to succeed in a claim for intrusion upon se- clusion, the plaintiff had to prove the following: 'I don't think business has anything substantive to worry about,' says Patrick Flaherty. • The defendant acted inten- tionally or recklessly and neg- ligence alone wouldn't suffice. • The defendant invaded the plaintiff 's private affairs or concerns without lawful justi- fication. • A reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish. The upshot is that claims can awyers are divided on the impact on the business community of the Ontar- io Court of Appeal's mid- arise only for deliberate and sig- nificant intrusions into highly of- fensive matters such as financial or health records, sexual prefer- ences, employment, and private correspondence. As well, the court noted that the right to privacy isn't absolute and requires a balancing with the rights to freedom of expression and the press. "What's clear from these prin- ciples is that Jones does not deal with a broad invasion of privacy that includes the negligent dis- closure of personal information," says Flaherty. "And because the intrusion is confined to highly sensitive information objectively capable of causing humiliation, it's unlikely that a business' misuse of marketing information would at- tract liability under this decision." But Christopher Du Vernet of Mississauga, Ont., firm Du Vernet Stewart, who with colleague Car- lin McGoogan represented plain- tiff Sandra Jones, says the case will have a wide-ranging impact. "The decision will have an im- pact on the law relating to celeb- rity privacy, media law, employ- ment law, family law, and property law," he says. "If I was a private in- vestigator involved in any dispute, I'd want to know the case back- ward and forward." Du Vernet also points out that the new tort doesn't require proof of actual economic loss. He adds he's not concerned about the limit of $20,000 that the court sug- gested for "symbolic" or "moral" damages in all but the most ex- ceptional cases. "Jurisprudence, like that re- lating to punitive damages, has proven that caps can quickly be- come history," he says. Du Vernet says the decision could also affect the law relating to proprietary commercial informa- tion. "There's going to be an over- lap with trade secrets law and the like. And where there is economic loss, damages will affect the value of information." As well, Du Vernet says Jones could prompt class actions in the telemarketing arena and other ar- eas where organizations collect or use information in a manner that amounts to an invasion of privacy. Jones arose when Winnie Tsige, who worked at a different bank branch than Jones, accessed her colleague's personal banking records on 174 occasions over four years. Tsige had been in a relationship with Jones' former husband and was involved in a financial dispute with him. She acknowledged having accessed Jones' records for personal rea- sons, largely because of a desire to ascertain whether the husband had been paying child support to Jones. Tsige apologized and ac- cepted discipline amounting to a five-day suspension and a loss of her annual bonus. Jones sued Tsige for the tort of breach of privacy. Both parties moved for summary judgment. Justice Kevin Whitaker of the Ontario Superior Court of Justice dismissed the action, accepting the argument by Alex Cameron of Fasken Martineau DuMoulin LLP, who with colleague Nicole Melanson represented Tsige, that an earlier 2005 decision from the Ontario Court of Appeal, Eutenei- er v. Lee, had established that the tort of invasion of privacy didn't exist in Ontario. Euteneier involved the privacy expectations of a prisoner in a jail cell who had attempted to commit suicide. His counsel conceded on appeal that there was no tort of in- vasion of privacy. In acknowledg- ing the concession, the Court of Appeal appeared to indicate that the concession reflected the law. Whitaker took this remark as binding upon him and dismissed Jones' claim. But Justice Robert Sharpe, writing for a unanimous panel at the Court of Appeal, disagreed. Whitaker also observed that UNCOVER THE DETAILS OF A CASE FROM EVERY ANGLE Litigator Powerful Insight for Compelling Arguments Litigator from Westlaw® Canada combines litigation-focused research with practice tools to support your strategic decisions and automate your most laborious tasks. Litigator contains Canada's largest collection of online court documents – more than 100,000 skillfully drafted pleadings, motions and facta from leading Canadian cases. Get Better Results Faster with Westlaw® Canada Call 1-866-609-5811 or visit www.westlawcanada.com Jones had a right to complain about the bank under the Personal Information Protection and Elec- tronic Documents Act. "For this reason, I do not accept the sug- gestion that Ms. Jones would be without any remedy for a wrong, if I were to determine that there is no tort for the invasion of privacy," Whitaker wrote. Again, Sharpe saw the issue differently. "PIPEDA is federal legislation dealing with 'organiza- tions' subject to federal jurisdic- tion and does not speak to the existence of a civil cause of action in the province," he wrote. "While BMO is subject to PI- PEDA, 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 em- ployee contrary to BMO's policy and that may provide BMO with a complete answer to the com- plaint. Third, the remedies avail- able under PIPEDA do not in- clude damages and it is difficult to see what Jones would gain from such a complaint." LT www.lawtimesnews.com

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