Intrusion Upon Seclusion – Court of Appeal Clarifies Existence of New Tort

In a landmark decision, the Ontario Court of Appeal has clarified that a cause of action for invasion of privacy exists in Ontario, namely, intrusion upon seclusion.  Prior to the Court’s decision in Jones v. Tsige (2012), 108 O.R. (3d) 241, it was generally believed that no cause of action existed in Ontario for invasion of one’s privacy.  Instead, litigants typically resorted to related claims such as nuisance, trespass, defamation, misappropriation of personality, among others.  The Court of Appeal noted in Jones that, up until its decision, Ontario had at the very least remained open to the proposition that a tort action will lie for an intrusion upon seclusion.  Now it has been clarified that such a tort does indeed exist. The Court of Appeal held that by recognizing a cause of action for intrusion upon seclusion, an incremental step was being taken by the Court consistent with its role in developing the common law in a manner consistent with the changing needs of society. Essentially, the elements of the cause of action are met where a defendant intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, provided the invasion would be highly offensive to a reasonable person.  The element of intent includes recklessness, and the invasion must be without lawful justification.  In order for the invasion to be highly offensive to a reasonable person, it appears that the conduct must cause distress, humiliation or anguish. Given the intangible nature of the interest protected by the claim, the Court stated that damages will ordinarily be measured by a modest conventional sum, especially where the plaintiff has suffered no pecuniary loss. A flood of new cases may be feared by some as a result of the new tort.  However, given the general limit on damages, it is expected that claims for intrusion upon seclusion will typically be pleaded as derivative claims in conjunction with related causes of action for which higher measures of damages are available.  It will be interesting to see how this tort evolves in the coming years.