Law Times

Law Times • may 9, 2011 Appeal court to consider privacy tort BY JULIUS MELNITZER For Law Times he Ontario Court of Appeal will soon have an opportunity to decide the vexing question of whether the common law recognizes the existence of a tort for invasion of privacy. Th e opportunity comes on an appeal T from the December 2010 judgment of Superior Court Justice Kevin Whitaker in Jones v. Tsige. Christopher Du Vernet of Du Vernet Stewart in Mississauga, Ont., who represents plaintiff Sandra Jones, says the case has been making waves in legal circles. "We've had calls from about a dozen other lawyers who have cases with simi- lar issues out there. It's hard to say when the appeal will be heard because I don't know if this case will be heard with oth- ers. Th ere may also be interventions, and that will slow the process down." Th e case arose when Winnie Tsige, who worked at a diff erent Bank of Montreal 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 became involved in a fi nancial dispute with him. She acknowledged having accessed Jones' records for personal reasons, largely be- cause of a desire to ascertain whether the husband had been paying child support to her. Tsige apologized and accepted discipline amounting to a fi ve-day sus- pension and a loss of her annual bonus. In the meantime, Jones sued Tsige for the tort of breach of privacy. Both par- ties moved for summary judgment. Whitaker acknowledged that the Su- perior Court's 2006 decision in Somwar v. McDonald's Restaurants of Canada Ltd. stood for the proposition that "it is not settled law in Ontario that there is no tort of invasion of privacy." But Alex Cameron of Fasken Mar- tineau DuMoulin LLP, the lawyer for Tsi- ge who declined comment to Law Times, had argued that a 2005 appeal court de- cision in Euteneier v. Lee established that the tort didn't exist in Ontario. Euteneier involved the privacy expec- tations of a prisoner in a jail cell who had attempted to commit suicide but whose counsel conceded on appeal that there was no tort of invasion of privacy. In acknowledging it, the Court of Ap- peal appeared to indicate that the con- cession refl ected the law. Euteneier "properly conceded in oral argument before this court that there is no 'free standing' right to dignity or pri- vacy under the Charter or at common law," the court wrote. Whitaker took this remark as bind- ing upon him and dismissed Jones' claim. As he saw it, Jones had a right of complaint against the bank under the Personal Information Protection and Because PIPEDA doesn't apply to indi- viduals, the defendant will go free in the absence of a common law tort, says Christopher Du Vernet. Electronic Documents Act. "For this reason, I do not accept the suggestion 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. Nor was there a need for common law intervention in this area of law. "Statu- tory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical con- cerns and needs in an industry-specifi c fashion," Whitaker added. Du Vernet, who says Tsige's conduct amounted to "electronic stalking," ar- gues Whitaker's reasoning is fl awed. "My client may have a remedy against the bank, but because PIPEDA doesn't apply to individuals, the perpetrator will go free in the absence of a common law tort," he says. "Th at's just a licence for someone else to do the very same thing again and fl ies in the face of 1,000 years of tort law premised on the fact that the wrongdoer is accountable." Indeed, Barbara McIsaac of Borden Ladner Gervais LLP says there's even some uncertainty regarding Jones' reme- dies against the bank. "It's not clear that the bank would be responsible under PIPEDA where, as here, we're dealing with an individual employee who goes off on a fancy of her own." Moreover, damages under PIPEDA very are limited. "Punitive damages might be available if liability arose un- der a common law tort of invasion of privacy," McIsaac says. "Th e law of damages as it relates to PIPEDA has also been very slow developing." 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• Cover
• LawPRO Warning
• Final Remarks
• Focus On E-Discovery