Family Law: New privacy tort a minefield for family law

On Jan. 18, the Court of Appeal for Ontario released its reasons in Jones v. Tsige confirming that there does in fact exist a tort of invasion of privacy based on intrusion upon seclusion.

While this decision doesn’t actually relate to a family law issue, it has substantial implications in the family law context that lawyers and parties must now consider.

Family law, more so than any other area of practice, is one where parties often go through each other’s e-mails, banking records, and employment and medical documentation without the other person’s knowledge.

We hear from parties about how they logged onto their spouse’s e-mail, checked the filing cabinet while the other person was away or found incriminating text messages on a phone. These are but a few examples of invasions upon seclusion that could now subject our clients to claims for damages.

We need to be aware of this new reality.
Writing for the court, Justice Robert Sharpe noted three factors that must be present for the tort to come into play. First, the defendant’s actions must be intentional or reckless.

Second, the defendant must have invaded, without lawful justification, the plaintiff’s private concerns. Third, a reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish.

Notably, proof of actual damages isn’t necessary for a party to succeed in a claim. Sharpe further noted that the invasion must be one of a serious nature, involving issues related to a person’s financial affairs, health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on a reasonable-person standard, would be highly offensive.

On the issue of damages for such invasions, Sharpe set the upper range for non-pecuniary damages at $20,000. This, of course, doesn’t preclude parties from seeking actual damages suffered over and above non-pecuniary ones.

The facts of each case will determine the award; however, it would appear that most such cases would take place in the Small Claims Court.

It’s incumbent on us to explain this new tort to clients before they get themselves into more trouble.

Producing e-mails from home computers containing the so-called smoking gun may actually work to the detriment of our clients rather than to their benefit and, arguably, even subject a lawyer to a claim for damages depending how and when they used the information.

Some of the factors that will influence the quantum of damages identified by Sharpe include the nature, incidence, and occasion of the wrongful act; the effect of the wrong on the plaintiff’s health, business, social or financial position; the distress; the conduct of the parties before and after the wrongful act; the annoyance or embarrassment suffered; and, most importantly for our purposes, the relationship of the parties.

An important driving factor with these issues is whether there was any expectation of privacy to begin with. If the spouses continued to live together, was the information on a home or work computer?

Was it in a locked room or a drawer? Was it an otherwise producible document in court? Again, it all depends. Was there a request for an affidavit of documents, for example? If there wasn’t, then it was arguably not producible even though it had the potential to be.

Many of the examples of how this tort could come into play are minor. However, there are certainly cases of significant violations such as using key log software on a spouse’s computer without the other person’s knowledge.

This is one of the most egregious yet increasingly common incidents of invasion upon seclusion as using such software will invariably disclose to the other spouse all passwords for bank accounts, e-mail programs, and the like.

Such cases, in my view, could certainly lead to more significant damage awards. Given the potential for substantial invasions of privacy, we need to tread carefully as this newly recognized tort evolves.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at [email protected].

For more, see "Privacy ruling long overdue."

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