In a decision released today, Jones v. Tsige, 2012 ONCA 32, the Ontario Court of Appeal recognized the existence of a cause of action for intrusion upon seclusion under the common law.

The Court addressed previous jurisprudence which had held that “there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law” after canvassing the law in other jurisdictions and the developments in privacy law and technology in Canada.

The Court found that the facts of the case, which related to an intrusion on the plaintiff’s bank records, met the test for the tort of invasion of privacy and awarded $10,000 in damages. Justice Sharpe wrote,

[68] It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

[69] Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by the principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.

Mark Hayes, of Hayes eLaw LLP, has a blog post about the case and its possible significance.