Can I sue for invasion of privacy in Ontario?
Updated: Sep 2
The short answer is yes. But there's some things you should keep mind before you consider legal action.
First, your right to privacy will be different depending on the situation. For example, in health care, persons who are health information custodians are held to a very high standard by the Privacy Health Information Protection Act. Your lawyer also owes you a duty of confidentiality, known as "solicitor-client privilege".
However, what about situations where the invasion of privacy takes place in a less formal situation? What happens if a "friend" goes through your phone or laptop and shares private information about you to other people?
Since 2012, individuals in Ontario have had a legal tool if their privacy is breached, thanks to a Ontario Court of Appeal judgment that created the right to sue for "intrusion upon seclusion."
The Court's decision was prompted by a case involving a woman who had snooped into the banking records of a partner's ex-wife. The Judges ruled that there was no pre-existing basis for the lawsuit, and so created a new legal tort (a "tort" is basically an unlawful harm or wrongdoing).
What do I have to prove?
According to the court, the key features of this tort are:
the defendant’s conduct must be intentional (or reckless)
the defendant must have invaded the plaintiff’s private affairs or concerns, without lawful justification
a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish
The Court listed the following factors in determining the amount of monetary damages:
1. the nature, incidence and occasion of the defendant's wrongful act;
2. the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
Are there any limits?
There are both time-limits and fact-related limits. First, your case must be filed in Court within 2 years from the day you discovered the invasion of your privacy. Second, inconsequential breaches will not be recognized.
"A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy," Mr. Justice Robert Sharpe wrote. "Claims from individuals who are sensitive or unusually concerned about their privacy are excluded, it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive."
The court also declared a $20,000 limit on the damages to be awarded to any individual for this tort. Ms. Jones was awarded damages of $10,000.
Do I need a lawyer?
In Ontario, if you sue someone else and lose, you will usually be required to reimburse them for their legal costs. The best way to avoid the risk of losing a lawsuit and facing financial consequences is to be represented by a competent lawyer with experience dealing with these types of cases.
The lawyers at KPA have experience bringing successful claims of intrusion upon seclusion. If you wish to contact the author of this article (Ryan Keeney) about a privacy law case, you can book a telephone call by clicking here. If you cannot afford Mr. Keeney's consultation fee ($450+HST), you can also book a consultation with an associate lawyer by clicking here ($149+HST).