International Law

Court says there's no tort of invasion of privacy in Ontario

The Ontario Superior Court of Justice just released a decision today in Jones v. Tsige, 2011 ONSC 1475 (PDF), which states, clearly and without ambiguity that there is no free-standing tort of invasion of privacy in Ontario.

The facts involve a claim against an employee of a bank who reviewed the plaintiff's confidential banking records on at least 174 occasions. Whitaker J. canvassed a number of authorities, including the well-known case of Somwar v MacDonalds, but concluded that there is no such tort. The Court notes that the plaintiff had a remedy under PIPEDA:

In Ontario, it cannot be said that there is a legal vacuum that permits wrongs to go unrighted - requiring judicial intervention.

[54] More particularly here, there is no doubt that PIPEDA applies to the banking sector and Ms. Jones had the right to initiate a complaint to the Commissioner under that statute with eventual recourse to the Federal Court. For this reason I do not accept the suggestion that Ms. Jones would be without any remedy for a wrong, if I were to determine that there is no tort for the invasion of privacy.

[55] Notwithstanding the careful reasoning in Somwar and its adoption in Nitsopoulos, conclude that the decision of the Court of Appeal in Euteneier is binding and dispositivc of the question as to whether the tort of invasion of privacy exists at common law.

[56] I would also note that this is not an area of law that requires judge-made rights and obligations. Statutory schemes that govern privacy issues are, for the most part, carefully nuanced and designed to balance practical concerns and needs in an industry-specific fashion.

[57] I conclude that there is no tort of invasion of privacy in Ontario.

It will be interesting to see if this conclusion may be avoided if there is no remedy available under PIPEDA or any other statute. It'll also be interesting to see if it's appealed.

Major tip o' the hat to Dan Michaluk: No Invasion of Privacy Tort in Ontario « All About Information.

Full post as published by The Canadian Privacy Law Blog on March 24, 2011 (boomark / email).