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The Ontario Court of Appeal has created a new cause of action.
It is now possible to sue for damages for a breach of privacy.
Tsige and Jones were employees at different branches of the Bank
of Montreal. They did not know each other, but Tsige had a
relationship with Jones's ex-husband.
Tsige looked at Jones's bank records 174 times over a four
year period to see if the ex-husband was paying child support. She
was able to see Jones's bank transaction details, date of
birth, marital status and address. She did not disclose or record
the information. There was no business reason for Tsige to look at
Jones's bank records, and she was disciplined by the Bank for
her conduct.
Jones sued Tsige, and the Ontario Court of Appeal decided to
recognize a tort of privacy called "intrusion upon
seclusion". The Court's decision was not dependent on the
existence, or lack, of privacy legislation, and it is likely that
similar claims will be made in other common law provinces in
Canada.
The elements of the new tort are:
(1) intentional or reckless conduct,
(2) invading, without lawful justification, the private affairs or
concerns of another,
(3) in a way that a reasonable person would consider was highly
offensive, and causing distress, humiliation or anguish.
It will not be necessary to prove actual damages. Instead, a
plaintiff who has suffered no pecuniary loss can expect damages of
up to $20,000 depending on the circumstances.
What does this mean for employers? Well, for one thing,
employers might make it a feature of privacy policies and training
to advise employees of the potential liability they face for
privacy breaches, in addition to being in trouble with their
employer.
[Tsige v. Jones, 2012 ONCA 32]
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