Is there a right to bring a civil action for damages for the invasion of personal privacy? What about in the context of a domestic relationship? The answer is now a resounding yes to both questions as a result of the new tort called “intrusion upon seclusion” created by the Ontario Court of Appeal in 2012 in the landmark case of Jones v. Tsige, 6 R.F.L. (7th) 247 (Ont. C.A.). Justice Sharpe, writing for a unanimous court, explained at paragraph 70 that “One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”. There are 3 key factors required to establish intrusion upon seclusion:
- Intentional – the conduct must be intentional, which would reckless;
- Unjustifiable – the invasion of private affairs or concerns must be without lawful justification; and
- Offensive – the intrusion would be considered highly offensive to a reasonable person, causing anguish, distress or humiliation.
Unlike some other torts, there is no need to prove harm to a recognized economic interest. Accordingly, damages will usually be measured by a modest, conventional sum, as being more symbolic or moral in nature, in the absence of truly exceptional circumstances. In the aforementioned case, Jones was awarded $10,000 for the repeated examination of private bank records, but no punitive or aggravated damages were awarded.
In the more recent case of Patel v. Sheth, 2016 CarswellOnt 21046 (Ont. S.C.J.), the husband placed a camera in the parties’ bedroom, without the wife’s knowledge or consent, which scope of view included both the bedroom and ensuite bathroom. The husband initially lied about the camera, blaming the wife, but later admitted responsibility, giving the excuse of trying to protect himself against false allegations of domestic violence. The wife was awarded damages of $15,000 for intrusion upon seclusion, without claim for punitive damages, and a further $5,000 in damages for domestic violence.
In awarding $15,000 in damages for intrusion upon seclusion, the trial judge considered the following:
- the nature of the intrusion, which occurred in the very private spaces of bedroom and bathroom, such that the wife’s privacy interests were significant;
- the intrusion occurred within the context of a domestic relationship;
- the intrusion caused shock and embarrassment for the wife, but no medical or psychological expert evidence was lead to establish a significant impact on the wife’s health or welfare; and
- the complete lack of insight by the husband into his own conduct as being wrong, demonstrated by lying and accusing his wife of having the camera installed.
Damages awarded in these sorts of cases are not likely to be substantial and as such, may not be worth pursuing for many in terms of cost benefit analysis. However, at the very least, these cases should serve as a warning to all of the risks associated with surreptitious video and/or audio recording.