Academic journal article University of Toronto Faculty of Law Review

The Idea of Privacy Law: Jones V. Tsige and the Limits of the Common Law

Academic journal article University of Toronto Faculty of Law Review

The Idea of Privacy Law: Jones V. Tsige and the Limits of the Common Law

Article excerpt

    ABSTRACT   I INTRODUCTION  II JONES V TSIGE     Rationale for the Recognition of a New Tort     The Scope of the New Tort of Intrusion Upon Seclusion III THE SEARCH FOR A COHERENT CONCEPT OF PRIVACY  IV INVASION OF PRIVACY AND RECOVERY FOR MENTAL DISTRESS   V PRACTICAL IMPLICATIONS AND LINGERING UNCERTAINTY IN THE     BALANCING OF PRIVACY WITH OTHER VALUES   VI CONCLUSION 

I INTRODUCTION

In Jones v Tsige, (1) the Ontario Court of Appeal recognized a new cause of action for intrusion upon seclusion. In recent years, debate over the existence of a common law privacy tort has been reignited among academics and the courts of commonwealth jurisdictions. With one important exception concerning the civil law of Quebec, (2) the absence of appellate authority on the law of privacy in Canada has been conspicuous. The decision in Jones has now filled this void with a sophisticated and thought-provoking discussion of the protection of privacy at common law. But the decision also raises important concerns about consistency in the development of the common law, as well as practical concerns regarding its potentially far-reaching effects on other values, such as freedom of expression.

This article is divided into six sections. Section II examines the decision itself. Section III shows how the rationales underlying the law of privacy provide an inadequate basis for judicial development of the common law. Section IV goes on to contrast the development of the law of privacy with the Supreme Court's reluctance to protect victims of intentionally inflicted mental suffering. Section V then examines the challenge of balancing the right to privacy against other values, with special reference to the case of journalists engaging in intrusive newsgathering activities. Section VI concludes.

II JONES V TSIGE

Winnie Tsige, the defendant bank employee, repeatedly accessed the personal financial records of Sandra Jones, the plaintiff, who was a fellow employee at a different bank branch. The parties did not know each other, but Ms. Jones happened to be the ex-wife of Ms. Tsige's boyfriend. (3) Ms. Tsige accessed Ms. Jones' financial records 174 times over a period of four years. (4) She did not reproduce or publish this information in any way. (5) After discovering what had happened, Ms. Jones brought an action alleging that Ms. Tsige's conduct breached her right to privacy.

The difficulty facing Ms. Jones was that although Canadian law protects privacy interests in a variety of ways, there was no clear basis in existing case law for a tortious action based on invasion of privacy. Privacy has repeatedly been recognized as an interest underlying various rights under the Charter, (6) in particular the section 7 right not to be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice, (7) and the section 8 right to freedom from unreasonable search and seizure. (8) An eclectic combination of other causes of action--such as trespass, (9) nuisance, (10) and defamation (11)--have been employed in cases where they functionally served to protect privacy interests. (12) Yet none of these causes of action were a clear doctrinal fit to the facts in Jones. Ms. Jones had no proprietary interest on which to found a claim in trespass or nuisance. An action in defamation requires that information harmful to the plaintiff's reputation be published, (13) but Ms. Tsige did not publish Ms. Jones' financial records. Similarly, a claim in breach of confidence requires that the confidential information be disseminated to a third party, (14) and further requires a pre-existing relationship of confidence between the parties, (15) which was not the case between Ms. Jones and Ms. Tsige. Privacy is also protected by federal and provincial legislation in Canada; (16) however, the legislation applicable in Ontario does not create a right of action between private parties. …

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