New hope for the tort of invasion of privacy in Ontario?

Thank you to a loyal reader who brought this case to my attention.

The Ontario Superior Court of Justice recently had an opportunity to consider whether you can sue for an alleged invasion of privacy in Ontario. More accurately, the Court considered whether you can even try to sue on this basis. In Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.), Stinson J. considered a defendant's application to strike a plaintiff's claim for invasion of privacy. The defendant argued that it disclosed no reasonable cause of action.

In the result, the Court let the plaintiff's pleading stand. This does not meant that there is or is not an independent tort of invasion of privacy, but it does suggest that the courts in Ontario will at least hear the plaintiff out.

The facts in this case involve an employer who carried out a credit check on an employee without the employee's knowledge or consent. The plaintiff sued. Because the courts of Ontario have gone both ways on whether you can sue for this, the plaintiff was not thrown out of court.

Stinson J. had some interesting things to say:

Is it fully settled in the jurisprudence that there is no common law tort of invasion of privacy?

[8] I begin my analysis with this question for the simple reason that if the answer is "yes" that is the end of the plaintiff's case.

[9] In a law review article written in 1960, the leading American torts scholar, William Prosser, listed four distinct kinds of invasion of privacy interests as follows: (i) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (ii) public disclosure of embarrassing private facts about the plaintiff; (iii) publicity which places the plaintiff in a false light in the public eye; and (iv) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness: see William L. Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383 at 389. Although Dean Prosser's article was intended as an overview of the American jurisprudence in this area, his analytical framework is helpful in trying to understand the approaches taken by Canadian courts when dealing with these types of claims.

[10] The complaint in the case at bar concerns the conduct of a credit bureau check on an employee by his employer, without the employee’s consent. This complaint falls within Prosser’s first category of invasion of privacy, i.e. “intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.” Prosser further described such intrusion as follows:

• there must be something in the nature of prying or intrusion;
• the intrusion must be something which would be offensive or objectionable to a reasonable person;
• the thing into which there is prying or intrusion must be, and be entitled to be, private; and
• the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.

[11] In The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002) G.H.L. Fridman discussed different classifications of torts and observed that courts, in the limited circumstances where damages are awarded for “invasion of privacy”, tend to treat such invasion as an intentional tort. At pp. 20-21 he wrote:

Acceptance by the courts … of the possibility of liability for certain kinds of “invasion of privacy,” limited though this may be, suggests that the courts are groping their way towards the idea that, where one person acts in a manner that is known and intended to be injurious to another, liability should ensue, even though no nominate tort such as … intimidation, trespass, or defamation, has been committed, unless the circumstances reveal that there was what can be accepted as a lawful reason, justification or excuse for the perpetration of the act and the infliction of the harm.

[12] Based on Prosser’s description of intrusion of privacy interests and Fridman’s observations on treatment of “invasion of privacy” by courts, I conclude that the plaintiff’s complaint concerning the invasion of his privacy could be categorized as an intentional tort.

[13] The potential existence of a common law intentional tort of invasion of privacy has been discussed on various occasions in the jurisprudence of the courts of Ontario. Many of these cases involved intrusion into the plaintiff's seclusion or private affairs and thus fall within Prosser's first category of invasion of privacy interests.

[14] In Capan v. Capan, [1980] O.J. No. 1361 (H.C.J.), the plaintiff commenced an action against her husband for damages for continuing mental and physical harassment and invasion of privacy. The defendant allegedly stalked the plaintiff during a separation, harassed her with persistent telephone calls at home and at her work place, and forced his way into her apartment. The defendant moved to strike out the plaintiff’s statement of claim based on the absence of a reasonable cause of action. Osler J. dismissed the motion stating (at paras. 14-15):

What is complained of here is, in its very essence, an abuse of personal rights to privacy and to freedom from harassment. … [I]t has not been demonstrated that the rights referred to will not be recognized by our courts nor that their infringement will not found a cause of action. In my view, it would not be right, on a motion of this kind, for the court to deprive itself of the opportunity to determine, after hearing the evidence, whether such right exists and whether it should be protected.

[15] In Saccone v. Orr (1981), 34 O.R. (2d) 317 (Co. Ct.), the defendant recorded a private telephone conversation with the plaintiff without the plaintiff’s consent. The defendant then played the tape at a municipal council meeting. A transcript of the tape was subsequently published in a local newspaper. The court rejected the defendant’s argument that no tort of invasion of privacy existed in Ontario common law. Jacobs Co. Ct. J. said:

[I]t’s my opinion that certainly a person must have the right to make such a claim as a result of a taping of a private conversation without his knowledge, and, as against the publication of the conversation against his will or without his consent. Certainly, for want of a better description as to what happened, this is an invasion of privacy and despite the very able argument of defendant’s counsel that no such action exists, I have come to the conclusion that the plaintiff must be given some right of recovery for what the defendant has in this case done.

[16] In Roth v. Roth reflex, (1991), 4 O.R. (3d) 740 (Gen. Div.), the court held that the defendants’ acts such as locking a gate on an access road, interfering with and blocking the use of the road by the plaintiffs in getting to and from their cottage, and removing a shed, pump and dock with the concomitant shutting off of electricity in the plaintiffs’ cottage at a time when they were not there constituted a harassment of the plaintiffs in the enjoyment of their property. Mandel J. also found that the defendants’ actions amounted to an invasion of the plaintiffs’ privacy. He further rejected the view that privacy flowed from property rights. He wrote (at p. 758):

In my view, whether the invasion of privacy of an individual will be actionable will depend on the circumstances of the particular case and the conflicting rights involved. In such a manner the rights of the individual as well as society as a whole are served.

It is also noteworthy that Mandel J. reached the foregoing conclusion after he observed that there is no legislated remedy for invasion of privacy in Ontario, unlike some other provinces.

[17] In Lipiec v. Borsa, [1996] O.J. No. 3819 (Gen. Div.), the defendants’ counterclaim against the plaintiffs was based on nuisance and trespass. The plaintiffs and the defendants were owners of adjoining residential properties. The court found that the plaintiffs had greatly reduced the defendants’ enjoyment of their property by removing the fence between the two properties and erecting a commercial type surveillance camera aimed at the defendants’ yard. McRae J. noted that intentional invasion of privacy had been recognized as actionable in Ontario in several cases. He found that there was intentional invasion of the defendants’ right to privacy and awarded damages to the defendants.

[18] In Tran v. Financial Debt Recovery Ltd., [2000] O.J. No. 4293 (S.C.J.) (reversed on other grounds, [2001] O.J. No. 4103 (Div. Ct.)), the plaintiff had outstanding student loans. Employees of the defendant debt collection agency began calling the plaintiff about the loan, several times an hour, at work. The plaintiff disputed the amount outstanding, but he was never provided with particulars. Despite the plaintiff’s request to be contacted at home, the defendant’s employees continued to call him at work. The court found that the defendant had invaded the plaintiff’s privacy by placing repeated and vexatious calls to the plaintiff’s place of employment. Molloy J. awarded damages to the plaintiff for the torts of defamation, intentional interference with economic interests, intentional infliction of emotional suffering, and invasion of privacy.

[19] Other cases in which trial judges have found liability based on invasion of privacy falling within Prosser's first category include Garrett v. Mikalachki, [2000] O.J. No. 1326 (S.C.J.) and Rathmann v Rudka, [2001] O.J. No. 1334 (S.C.J.).

[20] The courts of Ontario have not been unanimous concerning the existence of a common law tort of invasion of privacy. In Haskett v. Trans Union of Canada Inc. (2001), 10 C.C.L.T. (3d) 128 (Ont. S.C.J.), aff'd 15 C.C.L.T. (3d) 194, (Ont. C.A.), the plaintiff alleged that the defendant credit-reporting agencies had unlawfully included his pre-bankruptcy debts in consumer reports and incorrectly reported them as collectible debts. He sought to bring a class proceeding against the defendants for damages based on breach of fiduciary duty, invasion of privacy, and negligence. The defendants moved to strike the statement of claim on the ground that it did not disclose a reasonable cause of action. With respect to invasion of privacy, Cumming J. found that it was plain and obvious that the complaint of wrongful inclusion of inaccurate information in a credit report did not amount to a reasonable cause of action in tort. Cumming J. quoted with approval from Professor Klar in his text Tort Law (Toronto: Carswell, 1991) where he stated at p. 56 as follows:

Despite some encouraging suggestions from a few courts, it would be fair to say that the Canadian tort law does not yet recognize a tort action for invasion of privacy per se. Rather “privacy” rights have been protected under the umbrella of other traditional tort actions, and by legislative interventions.

Cumming J. acknowledged, however, that “more recently, there has been some recognition of invasion of privacy as an embryonic tort where there is harassing behaviour or an intentional invasion of privacy.” [Emphasis added.] On appeal, the appellant limited his claimed cause of action to negligence. Thus, the Court of Appeal did not address the ruling of the motion judge with respect to the issue of invasion of privacy.

[21] In T.W. v. Seo, [2003] O.J. No. 4277 (Ont. S.C.J.) (varied on other grounds at [2005] O.J. No. 2467 (C.A.)), the defendant was an ultrasound technician who videotaped the plaintiff while she was in the change room. The plaintiff’s claim included a claim for damages based on the tort of invasion of privacy. Siegel J. refused to put any questions to the jury relating to this cause of action as he found that “insofar as a common law tort of invasion of privacy was recognized in Canada, it did not extend to these facts.”

[22] In light of the trial decisions listed in this brief survey of Ontario jurisprudence, and the absence of any clear statement on the point by an Ontario appellate court, I conclude that it is not settled law in Ontario that there is no tort of invasion of privacy.

Is it plain and obvious that the plaintiff’s action cannot succeed, or despite the novelty of the cause of action, is there a chance that the plaintiff might succeed?

...

[28] Provinces such as British Columbia, Manitoba, Newfoundland, and Saskatchewan have created a statutory tort of invasion of privacy. See John D.R. Craig, “Invasion of Privacy and Charter Values: the Common-Law Tort Awakens” (1997) 42 McGill L.J. 355, footnote 2. In Quebec, s. 5 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, which provides that “every person has a right to respect for his private life”, is directly enforceable between citizens. In Ontario, however, there is no statutory remedy for unreasonable intrusion into an individual’s private affairs.

[29] With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual’s personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual’s privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence.

[30] Such a development in the common law has been viewed as appropriate by many legal commentators: see, for example, the articles by Bell, and Craig, supra. Bell wrote (at p. 235):

The emerging social realities of twenty-first century life in Canada include the use of technology that “increasingly facilitates the circulation and exchange of information”, cellular phones that can be used to take photographs, and the seemingly ever-increasing desire by the public at large for media stories, to name but a few examples. A broad embracement of a common law tort of invasion of privacy would reflect an updating of the common law to reflect these emerging social realities….

[31] Even if the plaintiff's claim for invasion of privacy were classified as "novel" (which, in any event, is not a proper basis for dismissing it) the foregoing analysis leads me to conclude that the time has come to recognize invasion of privacy as a tort in its own right. It therefore follows that it is neither plain nor obvious that the plaintiff's action cannot succeed on the basis that he has not pleaded a reasonable cause of action.

UPDATE: Check out Michael Fitzgibbon's post on this case, in which he offers some helpful comments on the test for striking out a pleading and on what this case may mean: Thoughts from a Management Lawyer: It's Alive (for now) The Tort of Invasion of Privacy in Ontario. (Added 20060118)

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