If someone has intentionally invaded your personal affairs – for example, improperly accessing your medical records or financial information – you may be entitled to damages.
During these strange pandemic times over the past few months, one couldn’t be blamed for getting tired of seclusion. Between quarantines, lockdowns, social and physical distancing – I think we all pine for the happier days before COVID-19 fundamentally changed our world.
On a personal note, my ideal vacation would see me traveling up north to back-country Ontario, alone, with a tent, and without a cell phone (except for emergencies, I suppose) – and even I am resenting seclusion!
Yet seclusion is important and needs to be protected. In the legal sense of the word, seclusion relates to our private information, affairs, and concerns which we expect to remain, well, private. We expect our medical records, our financial affairs, our criminal records, our sexual orientation and preferences, our employment records, our Children’s Aid Society files, our intimate photos – and the list goes on – to remain safeguarded and private, to be accessed only with our authorization, and only by those who have a legitimate purpose of accessing them.
Unfortunately, our expectations of privacy in our private affairs are not always respected by those who have access to our information. In 2012, in the case of Jones v. Tsige (2012 ONCA 32), the Ontario Court of Appeal recognized the tort of “Intrusion Upon Seclusion.”
In a nutshell, this cause of action is available when a person intentionally or recklessly invades, without lawful justification, our private affairs or concerns, where a reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish.
In Jones v. Tsige, the Defendant and the Plaintiff worked at the same bank. The Defendant had entered into a relationship with the Plaintiff’s ex-husband. Over the course of four years, the Defendant accessed the Plaintiff’s banking records at least 174 times. The Ontario Court of Appeal, finding that the Defendant had intentionally accessed the Plaintiff’s private affairs without lawful justification, awarded the Plaintiff damages of $10,000.
It’s important to note that the tort of Intrusion Upon Seclusion doesn’t require the defendant to disseminate or disclose private information to anyone else – it’s enough that they invade private affairs. It appears that the Courts in Ontario may be moving forward in recognizing a separate civil wrong relating to the dissemination or disclosure of private information, but the case law on this point is unsettled.
Other situations in which damages have been awarded for Intrusion Upon Seclusion include:
- A Defendant produced a promotional video for a real estate developer and, in the video, used a two-second clip of the Plaintiff jogging[1];
- A Plaintiff checked into a crisis home. The Defendant, the Plaintiff’s half-sister, who worked at the crisis home, told three people about the Plaintiff’s stay at the home[2];
- A Defendant posted an intimate video of the Plaintiff on a pornographic website without her consent[3];
- A Defendant, the new girlfriend of the Plaintiff’s ex-boyfriend, accessed the Plaintiff’s Legal Aid file to learn information about the Plaintiff, including the Plaintiff’s Children’s Aid Society file[4];
- In the context of a Family Law separation trial, the husband surreptitiously planted a camera in the marital bedroom, which looked into the bedroom and the bathroom[5];
- The Plaintiff and the Defendant were both pilots. The Defendant accessed the Plaintiff’s calendar and shared it with the Plaintiff’s ex-wife[6];
- In the context of a Family Law separation trial, the wife entered the husband’s residence through a window without permission, took photographs, invited friends over, changed the locks, and removed items. Additional damages were awarded for trespass and punitive damages were also awarded[7].
If someone has abused their position to invade your private affairs, contact us today! You may be entitled to damages.
[1] Vanderveen v. Waterbridge Media Inc., 2017 CanLII 77435 (ON Small Claims)
[2] Halley v. McCann, 2016 CanLII 58945 (ON Small Claims Court)
[3] Jane Doe 464533 v. N.D., 2016 ONSC 541
[4] McIntosh v. Legal Aid Ontario, 2014 ONSC 6136
[5] Patel v. Sheth, 2016 ONSC 6964
[6] Stevens v. Walsh, 2016 ONSC 2418 (aff’g a decision of the ON Small Claims Court of March 23, 2015)
[7] VonMaltzahn v. Koppernaes, 2018 NSSC 192
