




CITATION:
Jones v. Tsige, 2012
          ONCA 32



DATE: 20120118



DOCKET: C53577



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O.,
          Sharpe J.A. &
Cunningham
          A.C.J. (
ad hoc
)



BETWEEN



Sandra Jones



Plaintiff (Appellant)



and



Winnie Tsige



Defendant (Respondent)



Christopher Du Vernet and Carlin McGoogan, for the appellant



Alex Cameron and N. Melanson, for the respondent



Heard: September 29, 2011



On appeal from the judgment of Justice Kevin M.V. Whitaker of
          the Superior Court of Justice dated March 23, 2011, with reasons reported at
          2011 ONSC 1475, 333 D.L.R. (4
th
) 566.



Sharpe J.A.:



[1]

Does Ontario law recognize a right to bring a civil action for damages
    for the invasion of personal privacy?

[2]

In July 2009, the appellant, Sandra Jones, discovered that the
    respondent, Winnie Tsige, had been surreptitiously looking at Jones banking
    records. Tsige and Jones did not know each other despite the fact that they
    both worked for the same bank and Tsige had formed a common-law relationship
    with Jones former husband. As a bank employee, Tsige had full access to Jones
    banking information and, contrary to the banks policy, looked into Jones
    banking records at least 174 times over a period of four years.

[3]

The central issue on this appeal is whether the motion judge erred by
    granting summary judgment and dismissing Jones claim for damages on the ground
    that Ontario law does not recognize the tort of breach of privacy.

FACTS

[4]

Jones and Tsige worked at different branches of the Bank of Montreal
    (BMO). Jones maintains her primary bank account there. Jones and Tsige did
    not know or work with each other. However, Tsige became involved in a
    relationship with Jones former husband. For about four years, Tsige used her
    workplace computer to access Jones personal BMO bank accounts at least 174
    times. The information displayed included transactions details, as well as
    personal information such as date of birth, marital status and address. Tsige
    did not publish, distribute or record the information in any way.

[5]

Jones became suspicious that Tsige was accessing her account and
    complained to BMO. When confronted by BMO, Tsige admitted that she had looked
    at Jones banking information, that she had no legitimate reason for viewing
    the information and that she understood it was contrary to BMOs Code of
    Business Conduct and Ethics and her professional responsibility. Tsige
    explained then, and maintains in this action, that she was involved in a
    financial dispute with the appellants former husband and accessed the accounts
    to confirm whether he was paying child support to the appellant. Jones does not
    accept that explanation as she says it is inconsistent with the timing and
    frequency of Tsiges snooping.

[6]

Tsige has apologized for her actions and insists that she has ceased
    looking at Jones banking information. Tsige is contrite and embarrassed by her
    actions. BMO disciplined Tsige by suspending her for one week without pay and
    denying her a bonus.

[7]

In her statement of claim, Jones asserts that her privacy interest in
    her confidential banking information has been irreversibly destroyed and
    claims damages of $70,000 for invasion of privacy and breach of fiduciary duty,
    and punitive and exemplary damages of $20,000.

1. Motions for summary judgment

[8]

Jones proceeded under the simplified procedure of Rule 76 of the
Rules
    of Civil Procedure,
R.R.O. 1990, Reg. 194, and moved for summary judgment.
    Tsige brought a cross-motion for summary judgment to dismiss the action.

[9]

The motion judge found that Tsige did not owe Jones a fiduciary
    obligation and dismissed that claim. Jones has not appealed that finding.

[10]

The motion judge then reviewed the jurisprudence concerning the
    existence of a tort of invasion of privacy. He observed that recent Superior
    Court decisions have refused to strike out such claims at the pleading stage and
    that some academic writing indicates that that the tort may exist.

[11]

The motion judge concluded, however, that the statement of Cronk J.A. in
Euteneier v. Lee
(2005), 77 O.R. (3d) 621 (C.A.),
leave to appeal refused, [2005] S.C.C.A. No. 516,
at
    para. 63, is, in his words, binding and dispositive of the question of
    whether the tort of invasion of privacy exists at common law in Ontario.
Euteneier
concerned a lawsuit brought by a woman whose clothes were forcibly removed by
    police following her suicide attempt while she was detained in a holding cell. In
    considering whether the trial judge had accurately described the plaintiffs
    privacy and dignity interests, Cronk J.A. observed, at para. 63, [the
    plaintiff] 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.

[12]

The motion judge added that given the existence of privacy legislation
    protecting certain rights, any expansion of those rights should be dealt with
    by statute rather than common law.

[13]

The motion judge dismissed Jones motion for summary judgment and
    granted the motion brought by Tsige. He rejected Jones submission that costs
    should be denied on the ground that the issue was novel and that Tsiges
    conduct was objectionable. The motion judge felt that Jones had pursued the
    litigation aggressively and failed to accept reasonable settlement offers. He awarded
    costs fixed at $35,000.

ISSUES

[14]

Jones appeals to this court, raising the following issues:

1.   Did the motion judge err in holding that Ontario law
    does not recognize a cause of action for invasion of privacy?

2.   Did the motion judge err with respect to costs?

ANALYSIS

Issue 1. Does
    Ontario law recognize a cause of action for invasion of privacy?

a) Introduction

[15]

The question of whether the common law should recognize a cause of
    action in tort for invasion of privacy has been debated for the past one
    hundred and twenty years. Aspects of privacy have long been protected by causes
    of action such as breach of confidence, defamation, breach of copyright,
    nuisance, and various property rights. Although the individuals privacy
    interest is a fundamental value underlying such claims, the recognition of a
    distinct right of action for breach of privacy remains uncertain. As Adams J.
    stated in
Ontario (Attorney General) v. Dieleman
(1994), 117 D.L.R. (4
th
)
    449 (Ont. Gen. Div.) at p. 688, after a comprehensive review of the case law,
    invasion of privacy in Canadian common law continues to be an inceptive, if not
    ephemeral, legal concept, primarily operating to extend the margins of existing
    tort doctrine.

[16]

Canadian, English and American courts and commentators almost invariably
    take the seminal articles of S.D. Warren & L.D. Brandeis, The Right to
    Privacy (1890) 4 Harv. L. R. 193 and William L. Prosser, Privacy (1960), 48
    Cal. L. R. 383 as their starting point.

[17]

Warren and Brandeis argued for the recognition of a right of privacy to
    meet the problems posed by technological and social change that saw instantaneous
    photographs and newspaper enterprise invade the sacred precincts of private
    life (at p. 195). They identified the general right of the individual to be
    let alone, the right to inviolate personality (at p. 205), the more general
    right to the immunity of the person and the right to ones personality (at
    p. 207) as fundamental values underlying such well-known causes of action as
    breach of confidence, defamation and breach of copyright. They urged that open
    recognition of a right of privacy was well-supported by these underlying legal
    values and required to meet the changing demands of the society in which they
    lived.

[18]

Professor Prossers article picked up the threads of the American
    jurisprudence that had developed in the seventy years following the influential
    Warren and Brandeis article. Prosser argued that what had emerged from the
    hundreds of cases he canvassed was not one tort, but four, tied together by a
    common theme and name, but comprising different elements and protecting
    different interests. Prosser delineated a four-tort catalogue, summarized as
    follows, at p. 389:

1.

Intrusion
    upon the plaintiffs seclusion or solitude, or into his private affairs.

2.

Public disclosure of embarrassing
    private facts about the plaintiff.

3.

Publicity which places the plaintiff in
    a false light in the public eye.

4.

Appropriation, for the defendants
    advantage, of the plaintiffs name or likeness.

[19]

Most American jurisdictions now accept Prossers classification and it
    has also been adopted by the
Restatement (Second) of Torts
(2010). The
    tort that is most relevant to this case, the tort of intrusion upon
    seclusion, is described by the
Restatement,
at § 652B 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.

[20]

The comment section of the
Restatement
elaborates this
    proposition and explains that the tort includes physical intrusions into
    private places as well as listening or looking, with or without mechanical
    aids, into the plaintiffs private affairs. Of particular relevance to this
    appeal, is the observation that other non-physical forms of investigation or examination
    into private concerns may be actionable. These include opening private and
    personal mail or examining a private bank account, even though there is no
    publication or other use of any kind of the information obtained.

[21]

If Jones has a right of action, it falls into Prossers first category
    of intrusion upon seclusion. While I will make some reference to the fourth
    category of appropriation of the plaintiffs name or likeness in my discussion
    below, I will focus primarily on intrusion upon seclusion. I do so for two
    reasons. First, I accept Prossers insight that the general right to privacy
    embraces four distinct torts, each with its own considerations and rules, and
    that confusion may result from a failure to maintain appropriate analytic
    distinctions between the categories. Second, as a court of law, we should
    restrict ourselves to the particular issues posed by the facts of the case
    before us and not attempt to decide more than is strictly necessary to decide
    that case. A cause of action of any wider breadth would not only over-reach
    what is necessary to resolve this case, but could also amount to an
    unmanageable legal proposition that would, as Prosser warned, breed confusion
    and uncertainty.

[22]

The following discussion will examine whether the common law recognizes
    a cause of action for invasion of privacy. I will canvass case law from Ontario
    and other provinces and examine federal and provincial legislation relating to
    privacy. For completeness, I will also discuss the state of the law in foreign
    jurisdictions.

b) Case law

[23]

Reflecting on Canadian jurisprudence, Allen M. Linden and Bruce
    Feldthusen,
Canadian Tort Law,
9th ed. (Toronto: LexisNexis, 2011)
    observed at p. 59, that [w]e seem to be drifting closer to the American
    model. See also Colin H.H. McNairn and Alexander K. Scott,
Privacy Law in
    Canada
(Toronto: Butterworths, 2001) at ch. 3; Barbara McIsaac, Rick
    Shields and Kris Klein,
The Law of Privacy in Canada,
looseleaf
    (Toronto: Carswell, 2000) at 2.4; Philip Osborne,
The Law of Torts,
4th
    ed. (Toronto: Irwin Law, 2011) at pp. 267-71.

[24]

My analysis of the case law supports the same conclusion: Ontario has already
    accepted the existence of a tort claim for appropriation of personality and, at
    the very least, remains open to the proposition that a tort action will lie for
    an intrusion upon seclusion.

i)

Ontario case law

[25]

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.

[26]

Saccone v. Orr
(1981), 34 O.R. (2d) 317 (Co. Ct.), for example,
    involved the recording of a private conversation without the knowledge or
    consent of the plaintiff. The recording was then played at a municipal council
    meeting and a transcript of the conversation published in a local newspaper.
    Jacob Co. Ct. J. dismissed the defendants argument against the existence of a
    tort of invasion of privacy, found in favour of the plaintiff and awarded
    damages of $500.

[27]

Roth v. Roth
(1991), 4 O.R. (3d) 740 (Gen. Div) involved
    interference with the plaintiffs ability to use and enjoy their cottage
    property. Mandel J. considered the application of several torts  assault,
    battery, nuisance and trespass  but found that the cumulative effect of the
    defendants actions could best be described as an invasion of privacy. He
    rejected the contention that the common law did not allow for a claim for invasion
    of privacy and held, at p. 743, that the common law should not be confined to
    existing categories but must evolve. In recognizing the right of privacy,
    Mandel J. quoted a passage from a leading torts text indicating that liability
    for breach of privacy should only be imposed where the intrusion is substantial
    and would be regarded as offensive and intolerable to a person of reasonable
    sensitivity. He then stated, at p. 758, whether the invasion of privacy of an
    individual will be actionable will depend on the circumstances of the
    particular case and the conflicting rights involved.

[28]

A third trial judgment to award damages for breach of privacy falls
    under Prossers fourth category of appropriation of the plaintiffs name or
    likeness.
Athans v. Canadian Adventure Camps Ltd.
(1977), 17 O.R. (2d)
    425 (H.C.J.) involved a claim by an expert water-skier against a public
    relations firm that had copied a distinctive photograph of the plaintiff water
    skiing. Henry J. relied on
Krouse v. Chrysler
(1973), 1 O.R. (2d) 225
    (Ont. C.A.) in which Estey J.A. had suggested that an action in tort for the
    appropriation of personality did exist under the common law of Ontario. Henry
    J. held that the plaintiff failed to make out the tort of passing off, but did
    have a claim for the tort of appropriation of personality. The plaintiff
    recovered damages measured by the amount the plaintiff ought reasonably to have
    received in the market for permission to use his image.

[29]

There are also several Ontario cases in which the trial judge refused to
    strike pleadings alleging the tort of invasion of privacy as disclosing no
    cause of action.

[30]

Somwar v. McDonalds Restaurants of Canada Ltd.
(2006
),
79 O.R. (3d)
    172
(S.C.) contains perhaps the most coherent and definitive
    pronouncement in Ontario jurisprudence of the existence of a common law tort of
    invasion of privacy corresponding to the intrusion upon seclusion category.
    Somwar accused his employer, McDonalds Restaurants, of unlawfully invading his
    privacy by conducting a credit bureau check on him without his consent. The
    plaintiff claimed damages for invasion of privacy and for punitive damages. The
    defendant moved to strike the statement of claim and dismiss the plaintiffs
    action on the basis that it did not disclose a reasonable cause of action under
    rule 21.01(1)(b) of the
Rules of Civil Procedure
.

[31]

Stinson J. reviewed the Ontario case law and observed that while the
    cases were not entirely consistent, even where the courts did not accept the
    existence of a privacy tort, they rarely went so far as to rule out the
potential
of such a tort. The body of case law, together with the recognition by the
    Supreme Court of Canada of the protection of privacy under s.8 of the
Canadian
    Charter of Rights and Freedoms
led him to conclude at para. 29 and 31:

With
    advancements in technology, personal data of an individual can now be
    collected, accessed (properly and improperly) and disseminated more easily than
    ever before. There is a resulting increased concern in our society about the
    risk of unauthorized access to an individual's personal information. The
    traditional torts such as nuisance, trespass and harassment may not provide
    adequate protection against infringement of an individual's privacy interests.
    Protection of those privacy interests by providing a common law remedy for
    their violation would be consistent with Charter values and an
    "incremental revision" and logical extension of the existing
    jurisprudence.



Even if the plaintiff's claim for invasion of privacy were classified as
    "novel" (which, in any event, is not a proper basis for dismissing
    it), the foregoing analysis leads me to conclude that the time has come to
    recognize invasion of privacy as a tort in its own right. It therefore follows
    that it is neither plain nor obvious that the plaintiff's action cannot succeed
    on the basis that he has not pleaded a reasonable cause of action.

[32]

Somwar
was followed in
Nitsopoulos v. Wong
(2008) 298
    D.L.R. (4
th
) 265 (Ont. S.C.).

See also
Capan v. Capan
(1980), 14 C.C.L.T. 191 (Ont. H.C.);
Lipiec v. Borsa
(1996), 31 C.C.L.T.
    (2d) 294 (Ont. Gen. Div.);
Shred-Tech Corp. v. Viveen,
2006 CarswellOnt
    7762 (Ont. S.C.) at para. 30. Compare
Haskett v. Trans Union of Canada

Inc
.
    (2002), 10 C.C.L.T. (3d) 128 (Ont. S.C.).

ii)

Provincial case law

[33]

While there appears to be no appellate decision from another province
    definitively establishing a common law right of action for intrusion upon
    seclusion, dicta in at least two cases support the idea.
In
Motherwell v. Motherwell
(1976), 73
    D.L.R. (3d) 62 (Alta. S.C. App. Div.), a case involving harassing telephone
    calls, the court held the plaintiff had a right of action in nuisance but
added, at para. 25, that 
the interests of our developing jurisprudence would be
    better served by approaching invasion of privacy by abuse of the telephone
    system as a new category, rather than seeking by rationalization to enlarge
    the existing categories of nuisance.


[34]

The issue in
Dyne Holdings Ltd. v. Royal Insurance Co. of Canada
(1996),
135 D.L.R. (4th) 142,
leave to
    appeal to S.C.C. refused, [1996] S.C.C.A. No. 344, was an insurers duty to
    defend. One aspect of the claim arguably amounted to an invasion of privacy
    akin to the category of intrusion upon exclusion. After a review of the
    jurisprudence, Carruthers C.J. observed, at p. 160: the courts in Canada are
    not far from recognizing a common law right to privacy if they have not already
    done
so. It is also clear that Canadian courts
    do not hesitate to protect privacy interests under some recognized tort.

iii)

Euteneier v. Lee

[35]

This brings me to
Euteneier v. Lee
, and the statement from the
    case that the motion judge here found to be dispositive. In my respectful view,
    the motion judges reliance on
Euteneier
for the proposition Ontario law
    excludes any and all claims for breach of privacy interests was misplaced. The
    plaintiff in
Euteneier
had been arrested and detained on criminal
    charges. She complained of her treatment while in police custody and sought
    damages for negligence, assault, civil conspiracy, and breach of her ss. 7, 9,
    12, and 15 rights under the
Charter
. The trial judge found that based on
    the appellants own behaviour while in custody, which included an apparent
    suicide attempt, the defendant police officers had conducted themselves in a
    reasonable and prudent manner. They had breached no duty nor exhibited any bad
    faith or malice to ground any of the claims she had asserted and the claim was
    dismissed.

[36]

The plaintiffs first appeal was to the Divisional Court on account of
    the quantum of damages assessed by the trial judge: see
Euteneier v. Lee
(2003), 113 C.R.R. (2d) 44 (Ont. Div. Ct.). The Divisional Court allowed the
    appeal in part. A new trial was ordered on the issue of whether, after
    disrobing the plaintiff to prevent her from continuing to use articles of
    clothing to hang herself, the police were negligent, committed assault, or
    breached the plaintiffs
Charter
rights by confining her in the
    [holding cell] and by handcuffing her to its bars without taking steps to
    maintain her dignity or to prevent her humiliation.

[37]

The defendants appealed the order for a new trial to this court and the
    plaintiff cross-appealed seeking a new trial on all issues. This court allowed
    the appeal and dismissed the cross-appeal. Cronk J.A., writing for the court,
    held that the Divisional Court had failed to apply the proper standard of
    review with respect to the trial judges factual findings. Of particular
    significance to the point at issue on this appeal is Cronk J.A.s observation,
    at paras. 47 and 56. She noted that the plaintiff did not plead that that the
    defendants owed her any duty to maintain her dignity and prevent her
    humiliation, and that any reference to her dignity or privacy interests were as
    particulars of other causes of action or as the consequences she alleged flowed
    from the actions of the defendants. Cronk J.A. held that the Divisional Court
    had erred in treating those allegations as stand-alone causes of action.

[38]

Accordingly, it is clear from the context and from the words used that
    the passage at para. 63 relied on by the motion judge  [the plaintiff]
    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  could not have been intended to express any dispositive or definitive
    opinion as to the existence of a tort claim for breach of a privacy interest.
    No such claim had been advanced by the plaintiff, no argument on that point was
    addressed by counsel, and in my view, no opinion on that point was expressed by
    this court.

c)
Charter
Jurisprudence

[39]

Charter
jurisprudence identifies privacy as being worthy of
    constitutional protection and integral to an individuals relationship with the
    rest of society and the state. The Supreme Court of Canada has consistently
    interpreted the
Charters
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.

[40]

In
R. v. Dyment,
[1988] 2 S.C.R. 417 at p. 427, La Forest J.
    characterized the s. 8 protection of privacy as [g]rounded in a mans physical
    and moral autonomy and stated that privacy is essential for the well-being of
    the individual. For this reason alone, it is worthy of constitutional
    protection, but it also has profound significance for the public order.  La
    Forest added, at p. 429:

In modern society, especially, retention of
    information about oneself is extremely important. We may, for one reason or
    another, wish or be compelled to reveal such information, but situations abound
    where the reasonable expectations of the individual that the information shall
    remain confidential to the persons to whom, and restricted to the purposes for
    which it is divulged, must be protected.

[41]

Charter
jurisprudence has recognized three distinct privacy
    interests:
Dyment
at pp. 428-9;
R. v. Tessling
, 2004 SCC 67,
    [2004] 3 S.C.R. 432, at paras. 19-23. The first two interests, personal privacy
    and territorial privacy, are deeply rooted in the common law. Personal privacy,
    grounded in the right to bodily integrity, protects the right not to have our
    bodies touched or explored to disclose objects or matters we wish to conceal.
    Territorial privacy protects the home and other spaces where the individual
    enjoys a reasonable expectation of privacy. The third category, informational
    privacy, is the interest at stake in this appeal. In
Tessling
, Binnie J.
    described it, at para. 23:

Beyond our
    bodies and the places where we live and work, however, lies the thorny question
    of how much
information
about ourselves and activities we are entitled
    to shield from the curious eyes of the state (
R. v. S.A.B.
, [2003] 2
    S.C.R. 678, 2003 SCC 60). This includes commercial information locked in a safe
    kept in a restaurant owned by the accused (
R. v. Law
, [2002] 1 S.C.R.
    227, 2002 SCC 10, at para. 16). Informational privacy has been defined as the
    claim of individuals, groups, or institutions to determine for themselves when,
    how, and to what extent information about them is communicated to
    others:  A. F. Westin,
Privacy and Freedom
(1970), at p.
    7. Its protection is predicated on the assumption that all information about a
    person is in a fundamental way his own, for him to communicate or retain . . .
    as he sees fit.

(Report of a
    Task Force established jointly by Department of Communications/Department of
    Justice,
Privacy and Computers
(1972), at p. 13).

[42]

This characterization would certainly include Jones claim to privacy in
    her banking records.

[43]

In
Hill v. Church of Scientology of Toronto
, [1995] 2 S.C.R.
    1130, Cory J. observed, at para. 121, that the right to privacy has been
    accorded constitutional protection and should be considered as a
Charter
value in the development of the common law tort of defamation. In
Hill,
Cory J. stated, at para. 121: reputation is intimately related to the right to
    privacy which has been accorded constitutional protection. See also
R. v.
    OConnor
, [1995] 4 S.C.R. 411 at para. 113,
per
LHeureux‑Dubé
    J.: identifying privacy as an essential component of what it means to be
    free.

[44]

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.

[45]

While the
Charter
does not apply to common law disputes between
    private individuals, the Supreme Court has acted on several occasions to
    develop the common law in a manner consistent with
Charter
values: see
R.W.D.S.U.
    v. Dolphin Delivery Ltd.
, [1986] 2.S.C.R. 573 at 603;
R. v. Salituro
,
    [1991] 3 S.C.R. 654, at pp. 666 and 675;
Hill v. Scientology
at p. 1169;
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (Wes
t) Ltd.,
2002 SCC 8,
[2002] 1 S.C.R. 156;
Grant v.
    Torstar Corp.,
2009 SCC 61, [2009] 3
    S.C.R. 640.

[46]

The explicit recognition of a right to privacy as underlying specific
Charter
rights and freedoms, and the principle that the common law should be developed
    in a manner consistent with
Charter
values, supports the recognition of
    a civil action for damages for intrusion upon the plaintiffs seclusion: see John
    D.R. Craig, Invasion of Privacy and
Charter
Values: The Common Law Tort
    Awakens (1997), 42 McGill L.J. 355.

d) Legislation

i) Acts relating to Private
    Information

[47]

The federal and Ontario governments have enacted a complex legislative
    framework addressing the issue of privacy. These include:
Personal
    Information Protection and Electronic Documents Act, 2000
, S.C. 2000, c. 5
    (PIPEDA);
Personal Health Information Protection Act, 2004,
S.O. 2004,
    c. 3;
Freedom of Information and Protection of Privacy Act
, R.S.O. 1990,
    c. F.31;
Municipal Freedom of Information and Protection of Privacy Act
,
    R.S.O. 1990, c. M.56;
Consumer Reporting Act
, R.S.O. 1990, c. C.33

[48]

Tsige argues that it is not open to this court to adapt the common law
    to deal with the invasion of privacy on the ground that privacy is already the
    subject of legislation in Ontario and Canada that reflects carefully considered
    economic and policy choices. It is submitted that expanding the reach of the
    common law in this area would interfere with these carefully crafted regimes
    and that any expansion of the law relating to the protection of privacy should
    be left to Parliament and the legislature.

[49]

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: see Robyn Bell, Tort of
    Invasion of Privacy  Has its Time Finally Come? in Archibald and Cochrane
    (eds.),
Annual Review of Civil Litigation
(Toronto: Thompson Carswell,
    2005) at p. 225.

[50]

PIPEDA is federal legislation dealing with organizations subject to
    federal jurisdiction and does not speak to the existence of a civil cause of
    action in the province. While BMO is subject to PIPEDA, 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 employee contrary to BMOs policy and that may
    provide BMO with a complete answer to the complaint. Third, the remedies
    available under PIPEDA do not include damages and it is difficult to see what
    Jones would gain from such a complaint.

[51]

The Ontario legislation essentially deals with freedom of information
    and the protection of certain private information with respect to government
    and other public institutions. Like PIPEDA, it has nothing to do with private
    rights of action between individuals.

ii)
Provincial
    Privacy Acts

[52]

Four common law provinces currently have a statutorily created tort of
    invasion of privacy: British Columbia,
Privacy Act
, R.S.B.C. 1996 c.
    373; Manitoba,
Privacy Act
, R.S.M. 1987 c.P125; Saskatchewan
, Privacy
    Act
, R.S.S. 1978, c. P-24; and Newfoundland,
Privacy Act
, R.S.N.
    1990, c.P-22. All four
Privacy Acts
are similar. They establish a
    limited right of action, whereby liability will only be found if the defendant
    acts wilfully (not a requirement in Manitoba) and without a claim of right.
    Moreover, the nature and degree of the plaintiffs privacy entitlement is
    circumscribed by what is reasonable in the circumstances.

[53]

Under Quebec law, the right to privacy is explicitly protected both by arts.
    3 and 35-37 of the
Civil Code of Quebec
and by s. 5 of the
Charter of
    Human Rights and Freedoms
, R.S.Q. c. C-12. See
Robbins v. Canadian
    Broadcasting Corp.
(1957), 12 D.L.R. (2d) 37 (Que
. S.C.);
Aubry v. Éditions Vice‑Versa
, [1998] 1 S.C.R. 591; H. Patrick Glenn
The
    Right to Privacy in Quebec Law in
Aspects Privacy Law: Essays in Honour of
    John M. Sharp
, Dale Gibson ed. (Toronto: Butterworths, 1980) at ch. 3.

[54]

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.

e) Other Jurisdictions

i)
    United States

[55]

As already indicated, most American states have recognized a right of
    action for invasion of privacy rights as defined by the four categories
    identified by Prosser and now adopted by the
Restatement
.

[56]

Generally speaking, to make out cause of action for intrusion upon
    seclusion, a plaintiff must show:

1.   an
    unauthorized intrusion;

2.   that
    the intrusion was highly offensive to the reasonable person;

3.   the
    matter intruded upon was private; and,

4.   the
    intrusion caused anguish and suffering.

See William Prosser,
Law of Torts
, 4
th
ed. (West Publishing Company, 1971) at p. 808-12.

[57]

The first element indicates that the tort focuses on the act of
    intrusion, as opposed to dissemination or publication of information:
Roe v.
    Cheyenne Mt. Conf. Resort, Inc
., 124 F(3d) 1221 at 1236 (10th Cir. 1997).
    The focus of the court in determining whether this element is satisfied is on
    the type of interest involved and not the place where the invasion occurs:
Evans
    v. Detlefsen
, 857 F(2d) 330 at 338 (6th Cir. 1988).

[58]

With regard to the second element, factors to be considered in
    determining whether a particular action is highly offensive include the degree
    of intrusion, the context, conduct and circumstances of the intrusion, the
    tortfeasors motives and objectives and the expectations of those whose privacy
    is invaded: see J.D. Lee & Barry A. Lindahl,
Modern Tort Law: Liability
    & Litigation
, 2d ed., looseleaf (Thomson West, 2002) at § 48:6.

[59]

In determining the third element, the plaintiff must establish that the
    expectation of seclusion or solitude was objectively reasonable. The courts
    have adopted the two-prong test used in the application of the Fourth Amendment
    of the United States Constitution. The first step is demonstrating an actual
    subjective expectation of privacy, and the second step asks if that expectation
    is objectively reasonable:
Katz v. United States
, 389 U.S. 347 at 361
    (1967).

[60]

The fourth element has received considerably less attention as anguish
    and suffering are generally presumed once the first three elements have been
    established.

ii)
    Commonwealth Jurisdictions

[61]

In England, privacy is expressly protected by art. 8 of the
Convention
    for the Protection of Human Rights and Fundamental Freedoms
, 4 November
    1950, 213 U.N.T.S. 221 at 223, incorporated by the
Human Rights Act

1998
(UK), c. 42:

Everyone has the right to respect for his private and family
    life, his home and his correspondence.

However,
    the House of Lords held in
Wainwright v. Home Office
[2003] UKHL 53,
    [2003] 4 All E.R. 969 at para. 31, that while privacy may be a value which
    underlies the existence of a rule of law (and may point the direction in which
    the law should develop), privacy is not a principle of law in itself capable
    of supporting a private law right if action for damages. Yet the next year, in
Campbell
    v. MGN Ltd.
[2004] UKHL 22, [2004] 2 A.C. 467, the House of Lords granted
    an injunction to restrain on grounds of breach of confidence publication of
    newspaper stories and photographs of a supermodel leaving a drug addiction
    treatment facility. Lord Hoffman held, in
Campbell
at para. 51, that the
    tort of breach of confidence had evolved into a form of privacy protection,
    described by the court as a tort of misuse of private information:

[T]he new approach takes
    a different view of the underlying value which the law protects. Instead of the
    cause of action being based upon the duty of good faith applicable to
    confidential personal information and trade secrets alike, it focuses upon the
    protection of human autonomy and dignity  the right to control the
    dissemination of information about ones private life and the right to the
    esteem and respect of people.

[62]

The reformulated action for breach of confidence has been held to
    embrace damages claims to protect privacy interests that would easily fall
    within the intrusion upon seclusion category: see
Mosely v. News Group
    Newspapers Ltd
. [2008] EWHC
1777 (Q.B.) at
    para. 7: [t
]he law now affords
    protection to information in respect of which there is a reasonable expectation
    of privacy, even in circumstances where there is no pre-existing relationship
    giving rise of itself to an enforceable duty of confidence.

[63]

In
Lenah Game Meats Pty Ltd v. Australian Broadcasting Corp
.,
    [2001] H.C.A. 63, 185 ALR 1, the High Court of Australia expressly left the
    door open to the recognition of a common law right to privacy despite earlier
    authority to the contrary.

This was applied in
Grosse v. Purvis
,
    [2003] Q.D.C. 151, Aust. Torts Reports 81-706,  where the elements for the tort
    were found to be:

1.

a willed act by the defendant;

2.

which intrudes upon the privacy or seclusion of the
    plaintiff;

3.

in a manner which would be considered highly offensive to a
    reasonable person of ordinary sensibilities; and

4.

which causes the plaintiff detriment in
    the form of mental, psychological or emotional harm or distress or which
    prevents or hinders the plaintiff from doing an act which she is lawfully
    entitled to do.

[64]

In
Hosking v. Runting,
[2004] NZCA 34, the New Zealand Court of
    Appeal recognized a common law tort of breach of privacy that is separate and
    distinct from the tort of breach of confidence. Although the court dismissed
    the claim on the merits, the majority judgment confirmed the existence of a
    privacy tort in New Zealand dealing with wrongful publication of private facts
    to address publicity that is (at para. 26) truly humiliating and distressful
    or otherwise harmful. The elements of the tort were described at para. 109:

1. the
    existence of facts in respect of which there is a reasonable expectation of
    privacy; and

2. the
    publicity given to those private facts must be considered highly offensive to
    an objective reasonable person.

2.
    Defining the tort of intrusion upon seclusion

a) Introduction

[65]

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.

b) Rationale

[66]

The case law, while certainly far from conclusive, supports the
    existence of such a cause of action. Privacy has long been recognized as an
    important underlying and animating value of various traditional causes of
    action to protect personal and territorial privacy.
Charter
jurisprudence recognizes privacy as a fundamental value in our law and
    specifically identifies, as worthy of protection, a right to informational
    privacy that is distinct from personal and territorial privacy. The right to
    informational privacy closely tracks the same interest that would be protected
    by a cause of action for intrusion upon seclusion. Many legal scholars and
    writers who have considered the issue support recognition of a right of action
    for breach of privacy: see e.g. P. Winfield, Privacy (1931), 47 L.Q.R. 23; D.
    Gibson, Common Law Protection of Privacy: What to do Until the Legislators
    Arrive in Lewis Klar (ed.), Studies in Canadian Tort Law (Toronto:
    Butterworths, 1977) 343; Robyn M. Ryan Bell, Tort of Invasion of Privacy  Has
    its Time Finally Come? in Todd Archibald & Michael Cochrane,
Annual
    Review of Civil Litigation
(Toronto: Thomson Carswell, 2005) 225; Peter
    Burns, The Law and Privacy: the Canadian Experience (1976), 54 Can. Bar Rev.
    1; John D.R. Craig, Invasion of Privacy and
Charter
Values: The Common
    Law Tort Awakens (1997), 52 McGill L.J. 355.

[67]

For over one hundred years, technological change has motivated the legal
    protection of the individuals right to privacy. In modern times, the pace of
    technological change has accelerated exponentially. Legal scholars such as
    Peter Burns have written of the pressing need to preserve privacy which is
    being threatened by science and technology to the point of surrender: The Law
    and Privacy: the Canadian Experience at p. 1. See also Alan Westin,
Privacy
    and Freedom
(New York: Atheneum, 1967). The internet and digital technology
    have brought an enormous change in the way we communicate and in our capacity
    to capture, store and retrieve information. As the facts of this case indicate,
    routinely kept electronic data bases render our most personal financial
    information vulnerable. Sensitive information as to our health is similarly
    available, as are records of the books we have borrowed or bought, the movies
    we have rented or downloaded, where we have shopped, where we have travelled,
    and the nature of our communications by cell phone, e-mail or text message.

[68]

It is within the capacity of the common law to evolve to respond to the
    problem posed by the routine collection and aggregation of highly personal
    information that is readily accessible in electronic form. Technological change
    poses a novel threat to a right of privacy that has been protected for hundreds
    of years by the common law under various guises and that, since 1982 and the
Charter,
has been recognized as a right that is integral to our social and political
    order.

[69]

Finally, and most importantly, we are presented in this case with facts
    that cry out for a remedy. While Tsige is apologetic and contrite, her actions
    were deliberate, prolonged and shocking. Any person in Jones position would be
    profoundly disturbed by the significant intrusion into her highly personal
    information. The discipline administered by Tsiges employer was governed by
    the principles of employment law and the interests of the employer and did not
    respond directly to the wrong that had been done to Jones. In my view, the law
    of this province would be sadly deficient if we were required to send Jones
    away without a legal remedy.

c) Elements

[70]

I would essentially adopt as the elements of the action for intrusion
    upon seclusion the
Restatement (Second) of Torts
(2010) formulation
    which, for the sake of convenience, I repeat here:

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.

[71]

The key features of this cause of action are, first, that the defendants
    conduct must be intentional, within which I would include reckless; second that
    the defendant must have invaded, without lawful justification, the plaintiffs
    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.

d) Limitations

[72]

These elements make it clear that recognizing this cause of action will
    not open the floodgates. 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 ones 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.

[73]

Finally, claims for the protection of privacy may give rise to competing
    claims. Foremost are claims for the protection of freedom of expression and
    freedom of the press. As we are not confronted with such a competing claim
    here, I need not consider the issue in detail. Suffice it to say, no right to
    privacy can be absolute and many claims for the protection of privacy will have
    to be reconciled with, and even yield to, such competing claims. A useful
    analogy may be found in the Supreme Court of Canadas elaboration of the common
    law of defamation in
Grant v. Torstar
where the court held, at para. 65,
    that [w]hen proper weight is given to the constitutional value of free
    expression on matters of public interest, the balance tips in favour of
    broadening the defences available to those who communicate facts it is in the
    publics interest to know.

3. Damages

a) Introduction

[74]

As I have indicated, proof of actual loss is not an element of the cause
    of action for intrusion upon seclusion. However, the question necessarily
    arises: what is the appropriate approach to damages in cases, like the present,
    where the plaintiff has suffered no pecuniary loss?

[75]

Where the plaintiff has suffered no provable
    pecuniary loss, the damages fall into the category of what Professor Stephen M.
    Waddams,
The Law of Damages
, looseleaf ed. (Toronto: Canada Law Book, 2011)
    at para. 10.50 describes as symbolic and others have labeled as moral
    damages: see
Dulude v. Canada
(2000), 192 D.L.R. (4
th
) 714 at
    para. 30 (Fed. C.A.). They are awarded to vindicate rights or symbolize
    recognition of their infringement: Waddams, at para. 10.50. I agree with Prof.
    Waddams observation that a conventional range of damages is necessary to
    maintain consistency, predictability and fairness between one plaintiff and
    another.

[76]

Guidance in determining an appropriate range of
    damages can be
gleaned from existing case law from Ontario as well as
    from the provinces where there is a statutory cause of action.

b) Damages under
    Ontario case law

[77]

Although the tort of intrusion upon exclusion has not been fully
    recognized in Ontario law, several cases award damages for invasion of privacy
    in conjunction with, or under the head of, a traditional tort such as nuisance
    or trespass. These claims typically involve intangible harm such as hurt
    feelings, embarrassment or mental distress, rather than damages for pecuniary
    losses. I attach, as Appendix A, a summary of these cases and the damages
    awarded and will briefly discuss the facts of some of those cases here.

[78]

In
Saccone v. Orr,
the court found that the proven damages were
    minimal; the plaintiff had not lost his job or suffered any material loss.
    However, acknowledging that the plaintiffs privacy was invaded and that he was
    embarrassed and felt that his confidence had been betrayed, the court awarded damages
    in the amount of $500. Similarly, in
Provincial Partitions Inc. v. Ashcor
    Inplant Structures Ltd.
(1993), 50 C.P.R. (3d) 497, (Ont. Gen. Div.), the
    judge found that the defendant committed the tort of nuisance by invasion of
    privacy through abuse of telephone communications when they called the
    plaintiff, a competitor company, dozens of times. The judge awarded only $500
    against each defendant and because the defendants had already ceased placing
    the phone calls, the judge declined to provide injunctive relief.

[79]

In
Roth v. Roth
, the plaintiff claimed $100,000 in damages for
    intimidation, harassment and invasion of privacy, in addition to approximately
    $400,000 in additional damages for other tortious acts. The judge found that
    because the various causes of action overlapped, damages were best addressed as
    a lump sum and that the plaintiff was entitled to aggravated damages. Despite
    the lack of evidence of actual physical or psychological harm, the plaintiff
    was awarded the sum of $20,000.

[80]

MacKay v. Buelow
(1995), 24 C.C.L.T. (2d) 184 (Ont. Gen. Div.)
    involved a family law dispute in which the defendant had harassed his ex-wife
    over a period of four months. He continuously called her, stalked her on
    several occasions, threatened to kill her, and threatened to kidnap their child
    and take her to another country. The trial judge found that the plaintiff was
    entitled to a remedy for the calculated, devilishly creative and entirely
    reprehensible conduct by the defendant and awarded $25,000 general damages,
    $15,000 aggravated damages, $15,000 punitive damages, together with special
    damages and a significant award for the future medical care she would require.

c) Damages under
    provincial legislation

[81]

The four provincial privacy acts do not require proof of damage as an
    element of the cause of action. The Manitoba
Privacy Act
, however, is
    the only statute that provides specific guidance with regard to the
    determination of damages:

Considerations in awarding damages

4(2) In awarding damages
    in an action for a violation of privacy of a person, the court shall have
    regard to all the circumstances of the case including

(a) the nature,
    incidence and occasion of the act, conduct or publication constituting the
    violation of privacy of that person;

(b) the effect
    of the violation of privacy on the health, welfare, social, business or
    financial position of that person or his family;

(c) any
    relationship, whether domestic or otherwise, between the parties to the action;

(d) any
    distress, annoyance or embarrassment suffered by that person or his family
    arising from the violation of privacy; and

(e) the conduct of that person and the defendant, both
    before and after the commission of the violation of privacy, including any
    apology or offer of amends made by the defendant.

[82]

The other provincial statutes leave this determination to judicial
    discretion. The case law, however, demonstrates that courts frequently consider
    the same factors enumerated in the Manitoba Act. Appendix B contains a summary
    of these cases, mostly from British Columbia.

[83]

Absent proof of actual pecuniary loss, the awards are, for the most
    part, modest. For example, in
Heckert v. 5470
    Investments Ltd.,

2008 BCSC 1298, 299 D.L.R. (4
th
) 689,
the
    judge
noted that the only evidence regarding damages were Ms. Heckerts
    general statements that she felt stressed and needed to see her chiropractor
    and acupuncturist for additional visits.  The judge still found that Ms.
    Heckerts landlord had invaded her privacy by installing close imaging cameras in
    the hallway outside of her door, but that the lack of medical evidence meant
    that the award could be not more than nominal damages of $3,500.

[84]

Egregious conduct, however, has attracted awards of aggravated damages.
    In
Watts v. Klaemt,
2007 BCSC 662, 71 B.C.L.R. (4
th
) 362
,
the plaintiff was terminated from her job when her next door neighbour, the
    defendant, recorded her phone calls and after discovering she was perpetrating
    fraud against her company, reported this to her employer. The plaintiff claimed
    general damages for emotional pain and suffering, loss of enjoyment of life and
    diminution of her reputation as well as punitive or exemplary damages for the
    invasion of privacy. In assessing the quantum of damages, the judge considered
    the degree to which the plaintiffs life was destroyed following the invasion
    of privacy - notably the termination of her employment, the need to seek
    psychological care for depression and post traumatic stress disorder  and
    weighed this against the plaintiffs own misconduct. The judge awarded $30,000
    including aggravated damages for the substantial degree of suffering
    experienced by the plaintiff.

[85]

The benchmark case for exemplary or punitive damages for an invasion of
    privacy under the British Columbia regime is
Malcolm v. Fleming,
[2000]
    CarswellBC 1316, (B.C.S.C.). The defendant, the plaintiffs landlord, installed
    a video camera in the plaintiffs apartment and recorded her in various stages
    of undress in her bathroom and bedroom. The judge awarded punitive damages of
    $35,000 in addition to $15,000 in general damages. In determining the figure
    for punitive damages the judge considered such factors as the intimate location
    of the invasion, the relationship between the parties as landlord and tenant as
    having a high expectation of privacy, the substantial premeditation and
    planning, the additional humiliation of discovery prior to trial, the fact that
    a permanent record of the violation existed creating the potential for future
    embarrassment and the fact that there was no other means of punishment as there
    was no criminal act perpetrated.

[86]

Other cases have awarded punitive damages in consideration of societys
    abhorrence of the defendants actions, a lack of remorse on the part of the
    defendant and the desire to promote specific deterrence: see
Watts v. Klaemt
;
Lee v. Jacobson; Weber v. Jacobson
(1992), 87 D.L.R. (4
th
)
    401 (B.C. S.C.), revd (1994), D.L.R. (4
th
) 155 (B.C.C.A). In
Hollinsworth
    v. BCTV
(1996), 34 C.C.L.T. (2d) 95 (B.C. S.C.), affd 1998 B.C.C.A. 304,
    for example, the court assessed the plaintiffs damages for both breach of
    confidentiality and for the invasion of privacy at $15,000. The court there
    noted at para. 27 that these damages were higher than usual for breaches of the
Privacy Act
in consideration of the reprehensible conduct of the
    defendant. In
Hollinsworth
the defendant lied to a reporter saying that
    he had consent to use a videotape of the plaintiff undergoing surgery to treat
    baldness. The video was then aired during a news broadcast.

d) Determining the
    quantum of damages

[87]

In my view, damages for intrusion upon seclusion
    in cases where the plaintiff has suffered no pecuniary loss should be modest
    but sufficient to mark the wrong that has been done. I would fix the range at
    up to $20,000. The factors identified in the Manitoba
Privacy Act
,
    which, for convenience, I summarize again here, have also emerged from the
    decided cases and provide a useful guide to assist in determining where in the
    range the case falls:

1.   the
    nature, incidence and occasion of the defendants wrongful act;

2.
the effect of the
    wrong on the plaintiffs health, welfare, social, business or financial
    position;

3.   any
    relationship, whether domestic or otherwise, between the parties;

4.
any distress,
    annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5.
the conduct of the
    parties, both before and after the wrong, including any apology or offer of
    amends made by the defendant.

[88]

I would neither exclude nor encourage awards of
    aggravated and punitive damages. I would not exclude such awards as there are
    bound to be exceptional cases calling for exceptional remedies. However, I
    would not encourage such awards as, in my view, predictability and consistency
    are paramount values in an area where symbolic or moral damages are awarded and
    absent truly exceptional circumstances, plaintiffs should be held to the range
    I have identified.

3.
    Application to this case

[89]

It is my view that in this case, Tsige committed the tort of intrusion
    upon seclusion when she repeatedly examined the private bank records of Jones.
    These acts satisfy the elements laid out above: the intrusion was intentional,
    it amounted to an unlawful invasion of Jones private affairs, it would be
    viewed as highly offensive to the reasonable person and caused distress,
    humiliation or anguish.

[90]

In determining damages, there are a number of factors to consider. 
    Favouring a higher award is the fact that Tsiges actions were deliberate and
    repeated and arose from a complex web of domestic arrangements likely to
    provoke strong feelings and animosity. Jones was understandably very upset by
    the intrusion into her private financial affairs. On the other hand, Jones
    suffered no public embarrassment or harm to her health, welfare, social,
    business or financial position and Tsige has apologized for her conduct and
    made genuine attempts to make amends. On balance, I would place this case at the
    mid-point of the range I have identified and award damages in the amount of $10,000.
    Tsiges intrusion upon Jones seclusion, this case does not, in my view,
    exhibit any exceptional quality calling for an award of aggravated or punitive
    damages.

Issue 2. Did the motion judge err with respect to
    costs?

[91]

As I would set aside the judgment in favour of Tsige and grant judgment
    in favour of Jones, it is not necessary for me to consider Jones contention
    that the motion judge erred in his costs award.

DISPOSITION

[92]

Accordingly, I would allow the appeal, set aside the summary judgment
    dismissing the action and in its place substitute an order granting summary
    judgment in Jones favour for damages in the amount of $10,000.

[93]

Both parties have filed bills of costs asking for significant awards. In
    my view, it is appropriate to take into account the novel issue raised by this
    case which has clearly broken new ground. There is discretion to depart from
    the usual order in cases of novelty. In my view, in the unusual circumstances
    of this case, the parties should bear their own costs throughout and I would
    make no order as to costs.

Robert J. Sharpe J.A.

I agree W.K. Winkler
    C.J.O.

I agree J.D.
    Cunningham A.C.J.

RELEASED:  January 18, 2012




Appendix A: Ontario damage awards





Facts

Details

Remedy



Saccone v. Orr
(1981), 34 O.R. (2d) 317, (Ont. Co. Ct.)

Played tape of private
          telephone conversation aloud at municipal council meeting without counsel.

Cause of action:
          Invasion of privacy

Held: Defendant did not
          act with malice and proven damages were minimal.

$500  General Damages



Provincial
          Partitions Inc. v. Ashcor Inplant Structures Ltd.
(1993), 50 C.P.R. (3d) 497, (Ont.
Gen. Div.)

Persistent crank calls
          to rival business.

Cause of action:
          Nuisance by invasion of privacy.

$1000  General Damages



Palad v. Pantaleon,


[1989] O.J. No. 985, 
          (Ont. Dist. Ct.)

Harassment of borrower
          in an attempt to collect on a debt.

Cause of action:
          Invasion of privacy

$2,500  General
          Damages



Lipiec
          v. Borsa
(1996), 31 C.C.L.T. (2d) 294, (Ont.
Gen.
          Div.)

Surveillance of
          backyard.

Causes of action:
          Trespass and nuisance by deliberate invasion of privacy

$3,000  General
          Damages



S. & A. Nagy
          Farm v. Repsys,
[1987] O.J. No. 1987,

(Ont. Dist. Ct.)

Malicious attempt to
          persuade borrowers to amend mortgage agreement by embarrassing and harassing
          them.

Causes of action:
          Defamation and invasion of privacy.

$4,000  General
          Damages (Husband and Wife)



Roth v. Roth
(1991) 9 C.C.L.T. (2d) 141, (Ont. Gen. Div.)

Interference with
          access to cottage and with enjoyment of property.

Causes of action:
          Harassment, statutory breach, trespass and invasion of privacy`

$20,000  General
          Damages

$5,000  Exemplary Damages



Garrett v.
          Mikalachki
[2000] O.J. No. 1326, (Ont. S.C.)

Man harassed neighbour,
          reducing neighbours enjoyment of property, and spread rumours about the
          neighbours alleged criminal past.

Causes of action: Defamation,
          intentional infliction of emotional distress, nuisance, invasion of privacy,
          harassment.

$25,000  General
          Damages



Tran v. Financial
          Debt Recovery Ltd.
(2000), 193 D.L.R. (4
th
) 168 (Ont. S.C.)

Repeated abusive calls
          to debtor and his work colleagues regarding repayment.

Causes of action:
          Defamation, intentional interference with economic interests, intentional
          infliction of emotional harm, invasion of privacy

$25,000  General
          Damages



MacKay v. Buelow
(1995), 24 C.C.L.T. (2d) 184 (Ont. Gen. Div.)

Stalked former spouse.

Causes of action:
          invasion of privacy, trespass to person and intentional infliction of mental
          suffering and emotional distress

Held: Defendants
          actions were calculated, devilishly creative and entirely reprehensible.

$25,000  General
          Damages

$15,000  Aggravated
          Damages

$15,000  Punitive
          Damages

$6,248  Special
          Damages

$44,000  Costs of
          future care




Appendix B: Damage awards under provincial privacy
    legislation





Facts

Remedy



Pateman et. al. v.
          Ross
(1988), 68 Mr. R. (2d) 181 (Man. Q.B.)

Woman harassed
          ex-boyfriend and his new wife with threatening phone calls, letters and
          visits.

Interlocutory
          injunction



Insurance Corp of British Columbia v. Somosh
(1983), 51 B.C.L.R. 344 (B.C.S.C.)

Insurance company
          investigator asked invasive questions about car driver after accident,
          although the insurance company had no claim at law against driver

$1,000  General
          Damages

$1,000  Punitive
          Damages



Wasserman v. Hall
,
          2009 BCSC 1318, 87 R.P.R. (4
th
) 184

Claim for breach of
          privacy and nuisance; breach was described as relatively minor.

$3,500  General
          Damages



Heckert v. 5470 Investments
          Ltd.

2008 BCSC 1298, 299 D.L.R. (4
th
)
          689.

Landlord placed a video
          camera in the hallway of the building. Held that there was no legitimate reason
          for close-up imaging people immediately outside their apartment doors.

$3,500  Nominal
          Damages



Hollinsworth v. BCTV
(1996), 34 C.C.L.T. (2d) 95 (B.C.S.C.), affd 1998 B.C.C.A. 304.

Defendant released
          videotape of plaintiff having hair transplant surgery and media aired video.

$15,000  General
          Damages



F. (J.M.) v.
          Chappell,
(1998) 45 B.C.L.R. (3d) 64 (B.C.C.A.), leave to appeal to SCC
          refused, (1998), 231 N.R. 400.

Defendant published the
          name of complainant in sexual assault case in breach of publication ban. 
          Jury awarded $19,000 in damages, but the judge countenanced a defence of
          publication privilege and reduced this to $1,000.

Court of Appeal
          reinstated the jury award.

$3,000  General
          Damages

$15,000  Punitive
          Damages

$1,000 Non-pecuniary
          Damages



Lee v. Jacobson;
          Weber v. Jacobson
(1992), 87 D.L.R. (4
th
) 401 (B.C. S.C.),
          revd (1994),  D.L.R. (4
th
) 155 (B.C.C.A).

Landlord drilled a
          secret hold to spy on tenant.

Note: Findings of fact
          were overturned.

$2,000  General
          Damages

$22,500  Punitive
          Damages



Watts
v.
          Klaemt
2007 BCSC 662, 71 B.C.L.R. (4
th
) 362.

Defendant recorded the
          plaintiffs telephone conversations and the reported the content to the
          plaintiffs employer.  Plaintiff was then fired.

$30,000  Actual
          damages

$5,000  Punitive
          Damages



Malcolm v. Fleming,
[2000]
          CarswellBC 1316,  (B.C.S.C.)

Defendant landlord
          secretly videotaped plaintiff while she was in her bathroom and bedroom.

$15,000  General
          Damages

$35,000  Punitive
          Damages



Nesbitt
          v. Neufeld,
2010
          BCSC 1605, [2011] B.C.W.L.D. 407.

Family dispute:
          defendant published private documents, started websites, Facebook groups,
          sent letters to friends / colleagues / professional associations accusing her
          of drug abuse, suicide attempts, mental illness and sexual promiscuity.

$40,000  General
          Damages




