New Invasion of Privacy Tort Could Leave Companies Liable

The recent “Intrusion on Seclusion” court decision should inspire employers to examine their current policies to protect their employees’ privacy. The Canadian legal community has been abuzz about the January 2012 Jones v Tsige decision from the Ontario Court of Appeal that recognized a new common law breach of privacy tort called “Intrusion on Seclusion.” The case is an important one for which employers to be aware of.

BMO privacy case | BCBusiness
A dispute between two Bank of Montreal employees results in the new “Intrusion on Seclusion” tort which further protects employee privacy.

The recent “Intrusion on Seclusion” court decision should inspire employers to examine their current policies to protect their employees’ privacy.

The Canadian legal community has been abuzz about the January 2012 Jones v Tsige decision from the Ontario Court of Appeal that recognized a new common law breach of privacy tort called “Intrusion on Seclusion.” The case is an important one for which employers to be aware of.

The case revolved around one Bank of Montreal employee – Ms. Tsige – who accessed the bank records of an employee working in another BMO branch (Ms. Jones). Tsige was involved in a relationship with Jones’ former husband, and Tsige used her workplace computer to access Jones’ personal BMO bank accounts at least 174 times. When Jones became suspicious that Tsige was accessing her bank account, she complained to BMO and when confronted, Tsige admitted she had accessed the information.

Jones, upset with Tsige’s repeated intrusion into her financial affairs, commenced an action in Ontario Superior Court claiming damages for invasion of privacy. While the court held that there was no tort of invasion of privacy in Ontario, the Ontario Court of Appeal disagreed, and confirmed the existence of a tort as follows: one who intentionally intrudes, physically or otherwise, upon the seclusion or private affairs of another will be liable for the invasion of privacy, if the invasion would be highly offensive to a reasonable person.

The court noted that rights such as freedom of expression and freedom of the press could be raised as a valid defence to this tort, and the actions had to provoke an average person. Finally, the court held that damages may be awarded even without proof of actual loss, but the range of damages without proof should be consistent with other awards, and set the upper range at $20,000. The court then awarded Jones $10,000 damages and said the facts did not justify aggravated or punitive damages.

Implications for B.C.

The good news for B.C.’s organizations is that the new common law tort will not impose any new burdens on them. That’s because B.C. has the Privacy Act, which is a statutory tort of invasion of privacy similar to the “Intrusion on Seclusion” tort. On the other hand, companies in jurisdictions that don’t have any laws comparable to the Privacy Act (such as Ontario, Alberta, New Brunswick, Nova Scotia and the territories) need to be aware of this case.

The newly recognized tort means claims could be made outside of the “rules” set by the Privacy Act. Thus, individuals could bring an action in the B.C. Provincial Court rather than the B.C. Supreme Court, as is required in that Act. The provincial court’s rules are much simpler and it’s easier for an unrepresented person to prosecute a claim without the assistance of lawyers. That fact may encourage more claims in future.

Because of previous pieces of privacy legislation, most employers should already have some form of privacy protection policies and programs in place. These can help discourage bad behaviours and will protect employers from liability if employees decide on their own to breach someone’s privacy. For example, in the Jones v Tsige case, BMO had good policies and employee education programs in place and Tsige’s behaviour was contrary to such rules and not part of her legitimate workplace duties. BMO also took steps to investigate Jones’ complaint and disciplined Tsige for her actions. Presumably those facts protected BMO from a complaint.

As with other torts committed by employees in the course of their employment, employers can be found vicariously liable for damages caused by their employees. Whether the Jones v Tsige decision increases opportunities for employers to be held liable to other employees or companies for damages arising from actions by their employees is not yet clear.


This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.