The New Ontario Tort of Intrusion Upon Seclusion

The case of Jones v. Tsige, 2012 ONCA 32 before the Ontario Court of Appeal created a new tort in Ontario. Ontario civil law allows individuals to sue for breach of privacy based on proof of:

1. an intentional unauthorized intrusion;­
2. which is an intrusion upon private affairs or concerns (i.e. that breaches a reasonable expectation of privacy); and
3. that is made in circumstances that are highly offensive to the reasonable person, causing distress, humiliation or anguish.

However, proof of harm to a recognized economic interest is not an element of the cause of action.

With Ontario allowing this tort, we now have four provinces that allow a tort for intruding upon someone’s personal life by accessing private data.

In this case, Winnie Tsige, a colleague of Sandra Jones at the Bank of Montreal, accessed her banking records on 174 occasions over four years. Tsige had been in a relationship with Jones’ former husband and become involved in a financial dispute with him.

I fear that the court has opened the sluicegates for all kinds of invasion of privacy cases that were not previously recognized. My first concern is that the court didn’t set any parameters for what constitutes reckless behaviour on the part of the person divulging the data or the person reporting it, and this should be of particular concern to the Private Investigator. Secondly, this may also open the floodgates for privacy related class actions seeking a much higher amount.

The Private Investigator

This will have an impact on employers and organisations that experience data breaches. However, it is the impact on Private Investigators (PI) that I will address here.

Investigating off-duty conduct of the employees of a business (including video surveillance) is likely to see increased use of this tort, though employers and their PI should not be liable if the investigation techniques employed are reasonable and investigation is based on reasonable grounds.

This new tort will change how the PI conducts an investigation and how he deals with certain clients.

The PI industry is tightly regulated and most professional PI’s understand the information they seek and report. Most PI’s in Ontario know about the limits imposed by PIPEDA, the Ontario Freedom of Information and Protection of Privacy Act (FIPPA), the Ontario Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and the federal Privacy Act. Gaining unlawful access to financial, medical, and criminal records by bribing a government official would likely get the PI’s licence pulled and perhaps criminal charges, as would obtaining the data by fraud or misrepresentation.

For example, Saskatoon PI, Michael Robinson, plead guilty to illegally accessing the Canadian Police Information Computer (CPIC) and was fined $20,000.

In 1992, Robinson’s firm, Robinson Investigations, was investigated by police and several government departments for breaches of privacy within government departments. Six government employees were also fired as a result of the investigation.

If this happened today in Ontario, would we see some enterprising sole getting a court order for the release of the names of all those on whom he obtained CPIC and other information, then start a class action suit naming the various police agencies, government departments, and of course, Robinson and his company?

Fortunately, investigation companies are profit seeking businesses that don’t want their profits syphoned off by lawyers to defend against law suits and criminal charges. The mythical Hollywood Private Eye who is a sleazy, womanizing drunkard is a true rarity in this industry today, if it was ever true. The truth is, that defending such an action would use-up a year’s profit for most investigation companies – no single file is worth that.

The Aggressive Client

This tort will change some of the notes entered into a file. Firstly, the client contact will be better recorded.

The $20,000 ceiling for this tort will lead some well-healed clients to violate a subject’s privacy and simply see the $20,000 damages as the cost of doing so. Unfortunately for the PI, it could mean the loss of his licence or his entire business.

This type of client would likely appear in divorce cases and in highly charged commercial litigation. In commercial cases, the cost of a judgement could be an insignificant cost compared to the potential profit.

Discussions with the client, and any unusual requests, will be very well documented, as will the PI’s response and the resulting action.

Sources & Methods

This tort will make reporting sources and methods mandatory to preclude legal action.

I have insisted on this type of reporting for over 15 years to avoid such trouble. This began when I was accused of accessing private information. The accuser did not understand that many government documents and data are treated differently by different departments. What is considered private in one department may be open source data in another. After that episode, everything was reported in the sources & methods manner, often with a statement that illustrates how the data was acquired in a legal manner that was not in any way reckless.