Intrusion upon seclusion: Implications for better privacy protection in Canada?

In a case at the Court of Appeal for Ontario, Justice Kevin M.V. Whitaker defined for the first time in Canada a tort related to privacy protection. Although it is far too early to determine the full impact of this decision, and if this decision is indeed precedent setting, it may have implications for future decision across Canada. It could help to underline to all Canadians that the right to privacy is not only important but also when it is breached, there are clear means to seek compensation. For a copy of the decision, see:

The following are segments of the Ontario Court of Appeal decision that underline the importance of privacy protection and how the tort related to intrusion upon seclusion is defined.

In the words of Justice Whitaker, up until now, “In Canada, there has been no definitive statement from an appellate court on the issue of whether there is a common law right of action corresponding to the intrusion on seclusion category. Ontario trial judges have, however, often refused to dismiss such claims at the pleading stage as disclosing no cause of action and some have awarded damages for claims based on violations of the right to be free of intrusion upon seclusion. The clear trend in the case law is, at the very least, to leave open the possibility that such a cause of action does exist.”

He notes that there is Charter jurisprudence underlying the right to privacy. “Charter jurisprudence identifies privacy as being worthy of constitutional protection and integral to an individual’s relationship with the rest of society and the state. The Supreme Court of Canada has consistently interpreted the Charter’s s. 8 protection against unreasonable search and seizure as protecting the underlying right to privacy. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 158-59, Dickson J. adopted the purposive method of Charter interpretation and observed that the interests engaged by s. 8 are not simply an extension of the concept of trespass, but rather are grounded in an independent right to privacy held by all citizens.”

As well, international law supports privacy protection. He writes, “The Charter treatment of privacy accords with art. 12 of the Universal Declaration of Human Rights, G.A. Res. 271(III), UNGAOR, 3d Sess., Supp. No. 13, UN. Doc. A/810 (1948) 71, which provides that “[n]o one shall be subjected to arbitrary interference with his privacy, home or correspondence” and proclaims that “[e]veryone has the right to the protection of the law against such interference or attacks”. Privacy is also recognized as a fundamental human right by art. 17 of the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171.”

With respect to the tort of intrusion upon seclusion, the Justice notes the trend it toward its recognition and not toward refusing it. “I am not persuaded that the existing legislation provides a sound basis for this court to refuse to recognize the emerging tort of intrusion upon seclusion and deny Jones a remedy. In my view, it would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt the development of the common law in this area.”

Justice Whitaker also summarizes various Provincial privacy legislation, but goes on to note that legislation has not kept pace with what constitutes an invasion of privacy. “Significantly, however, no provincial legislation provides a precise definition of what constitutes an invasion of privacy. The courts in provinces with a statutory tort are left with more or less the same task as courts in provinces without such statutes. The nature of these acts does not indicate that we are faced with a situation where sensitive policy choices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.”

He finally concludes that, “In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. 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.”

The judge defined the breach of the privacy tort as, “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

He also went further to define its key features, “… first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that 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. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.”

He added also that, “A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive…” [and] “… proof of actual loss is not an element of the cause of action for intrusion upon seclusion.”

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