New Tort is Born – Invasion of Privacy Grows a Leg

We are estate lawyers and business lawyers in Toronto who keep abreast of new legal developments.

The Christmas season is behind us and the annual speculation over immaculate conception forgotten for most.  A new tort was born just before the holidays and unfortunately not accorded much fanfare. New torts are almost as rare as shining stars in the East and deserve to be either publicly celebrated or vilified.

The new tort is invasion of privacy.  Or perhaps more accurately stated, the old tort of invasion of privacy been has now been restated to expressly include intrusion upon exclusion. Or put another way, a new leg of the old tort has grown. Or perhaps an old leg of an old tort has now merely been recognized. Or put another way …  Whatever the proper academic analysis of the jurisprudence may be, the bottom line is that the Ontario Court of Appeal did something it rarely does. In a one in a thousand ruling the Court would step up to recognize a new remedy for the 21^st century and then lay out its reasons in a laudable display of plain language.  Judges and lawyers are by training slaves to precedent. Every time an action is commenced in a Court the hard question is always asked – what is the legal cause of action?  If there is no cause of action, one can expect the defendant to quickly move to strike the statement of claim for failing to disclose a cause of action.  999 times out of a thousand the defendant will succeed on this motion.

What is often lost in translation is the ongoing common law that the provinces and the federation of Canada remain open to new causes of action when circumstances dictate.In Jones vs. Tsige http://www.canlii.org/en/on/onca/doc/2012/2012onca32/2012onca32.html, the Court was asked to recognize a right to bring a civil action for damages for invasion of personal privacy.  The plaintiff and the defendant were married bank employees. The defendant took it upon himself to access his wife’s banking records to assist him in their family law proceedings. The Court of Appeal expressly adopted the American law on the tort of invasion of privacy limited to: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which paints the plaintiff in a false light in the public eye, and (4) appropriation for the defendant’s advantage of the plaintiff’s name or likeness. To his credit, Justice Sharpe of the Ontario Court of Appeal performed a lengthy and wise analysis of the history of this tort in case law as well as the emergence of privacy as a right protected by the Charter of Rights and PIPEDA. As Justice Sharpe stated in his Reasons, “we are presented in this case with facts that cry out for a remedy”. So what is the bottom line on the amount of damages to be awarded?  The court was clear that no provable economic loss need be demonstrated and a general damages approach would be taken, much as in cases for pain and suffering. The Court awarded $20,000. What is the future of this tort? Our view is that it will become an add-on to the list of basket torts that are often pleaded by commercial litigators, it will certainly appear with frequency in family law litigation, and it may start appearing in a number of other types of litigation.  We expect to see a burgeoning of the pleading of this tort much as we saw the burgeoning of the pleading of new-found tort of breach of fiduciary duty after the success of the plaintiff in Lac Minerals v. Coronahttp://www.canlii.org/en/ca/scc/doc/1989/1989canlii34/1989canlii34.html. Unlike the birth of breach of fiduciary duty, the recent birth has been silent. Also unlike the birth of breach of fiduciary duty, the new tort can be expected to be more of an add-on to support exemplary or punitive damages.  On its own, the new tort does not promise to open the floodgates but who can know? At this time, we cannot foresee how this tort will arise in the setting of estate litigation, an area in which our firm’s practice is growing, but we are sure the creative minds of that Bar will be giving this thought.