Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario

By Bennett, Thomas D. C. | McGill Law Journal, September 2013 | Go to article overview

Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario


Bennett, Thomas D. C., McGill Law Journal


This article considers the nature of common law development as exemplified by the recent privacy case of Jones v. Tsige. The author focuses on Jones, in which the Ontario Court of Appeal recognized the novel privacy tort of "intrusion upon seclusion". Using a detailed analysis of the case as its basis, the article explores issues which have much wider significance for the judicial development of privacy laws: the process of incrementai elaboration of the law, the moral impulses at work within it, and the relevance of imagination to its operations. By drawing out these discrete issues and analyzing the role that each plays in Jones, the article offers a framework for examining such questions in future privacy cases. Moreover, this article argues that the judgment in Jones brings valuable clarity to the analysis of the process of common law development. In particular, the essay concludes that the novel privacy tort recognized in Jones is the result of a legitimate incremental development rather than an instance of undue judicial activism.

Cet article se penche sur la nature du developpement de la common law, comme l'illustre le recent arret sur le droit a la vie privee Jones v. Tsige. L'auteur se concentre sur Jones, ou la Cour d'appel de l'Ontario a reconnu un nouveau delit d'<>. En s'appuyant sur une analyse detaillee de l'arret, l'article explore des enjeux qui ont une importance beaucoup plus large sur le developpement judiciaire du droit a la vie privee, a savoir le processus d'elaboration progressive de la lei, les impulsions morales qui y sont a l'oeuvre et l'importance qu'a l'imagination pour ses operations. En soulevant ces enjeux distincts et en analysant leur role dans Jones, cette etude propose un cadre permettant d'examiner ces questiens lors des affaires portant sur le droit a la vie privee qui pourront se presenter. En outre, l'article soutient que l'arret Jones clarifie l'analyse du processus du developpement de la common law. Il contclut notamment que le nouveau delit sur le droit a la vie privee reconnu dans Jones est le resultat d'un developpement legitime progressif plutot qu'un cas d'activisme judiciaire injustifie.

Introduction

I. A Global Privacy Context
   A. Jones v. Tsige: An Overview of the Judgment
   B. Legal Imagination
   C Qualified Deontology
   D. Scrutinizing the Judgment in Jones
      1. Charter values
      2. Corrective Justice
      3. Justice Sharpe: an Academic Judge
      4. Incrementalism
   E. Corrective Justice, Tort Theory, and Privacy
      More Generally
Conclusion

Introduction

Elaboration of the law relating to invasion of privacy has been proceeding apace in the common law world in recent years (for example, in England and in New Zealand). As such, we might see recent development in this area of the law in Canada as an instance of playing catch-up. Such a view would, however, be wide of the mark. For when I scrutinize the recent Canadian case of Jones v. Tsige, (1) I find that it brings into focus issues that require more judicial and academic work across the common law world (and indeed beyond). These issues are the process of judicial elaboration of the law ("incrementalism" to common lawyers), the moral impulses at work in the law, and the relevance of imagination to its operations. I will examine each of these matters in detail below. And, at the conclusion of this essay, I will use them to point up a contrasting tendency for judges and, in particular, the English academic community to get bogged down in matters of technical detail and to lose sight of these large issues that invest this branch of the law with politico-legal significance.

Jones is particularly worthy of study because it represents a significant incremental step for the common law: the recognition of a novel head of tortious liability. That this has taken place in order to secure protection for a controversial interest, privacy, only adds to the case's importance. …

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