The 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.
The opportunity comes on an appeal 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 similar 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 others. There may also be interventions, and that will slow the process down.”
The case arose when Winnie Tsige, who worked at a different 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 financial dispute with him.
She acknowledged having accessed Jones’ records for personal reasons, largely because of a desire to ascertain whether the husband had been paying child support to her. Tsige apologized and accepted discipline amounting to a five-day suspension and a loss of her annual bonus.
In the meantime, Jones sued Tsige for the tort of breach of privacy. Both parties moved for summary judgment.
Whitaker acknowledged that the Superior 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 Martineau DuMoulin LLP, the lawyer for Tsige who declined comment to Law Times, had argued that a 2005 appeal court decision in Euteneier v. Lee established that the tort didn’t exist in Ontario.
Euteneier involved the privacy expectations 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 Appeal appeared to indicate that the concession reflected the law.
Euteneier “properly conceded in oral argument before this court that there is no ‘free standing’ right to dignity or privacy under the Charter or at common law,” the court wrote.
Whitaker took this remark as binding 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 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. “Statutory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical concerns and needs in an industry-specific fashion,” Whitaker added.
Du Vernet, who says Tsige’s conduct amounted to “electronic stalking,” argues Whitaker’s reasoning is flawed. “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.
“That’s just a licence for someone else to do the very same thing again and flies 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’ remedies 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 are very limited. “Punitive damages might be available if liability arose under a common law tort of invasion of privacy,” McIsaac says. “The law of damages as it relates to PIPEDA has also been very slow developing.”