Affairs, Adultery & Spying

Tempted to Snoop? Beware of a New Canadian Cause of Action

Tempted to Snoop?  Beware of a New Canadian Cause of Action

Those embroiled in matrimonial disputes and litigation can attest to the fact that emotions run high:  acrimony can breed one-upmanship, and ex-spouses may consider resorting to less-than-ethical means of obtaining information on their former partners to be used in the dispute-resolution process.

But however tempting it may be, it’s important for an ex-spouse to resist the urge to engage in spying on the other, or to surreptitiously gather information in an unscrupulous manner.   A recent Ontario Court of Appeal decision has essentially recognized a new cause of action for certain kinds of intrusions into individual privacy.

In this case, called Jones v. Tsige, the plantiff Sandra sued her co-worker Winnie, with whom she worked at a Toronto branch of the Bank of Montreal.  Sandra and her ex-husband were embroiled in a dispute over money that he owed her for child support.  As it happens, Winnie had started dating Sandra’s ex-husband.

In an abuse of her position with the bank, and contrary to the bank’s policies, Winnie exploited the access she had to Jones’ personal bank account information, which included transaction details, date of birth, marital status and address.   Indeed, she looked into Jones’ banking records approximately 174 times in a four-year period, apparently (she said) for the purpose of checking to see whether Sandra was receiving child support payments from her ex-husband.

Sandra became suspicious that her account was being monitored, and complained to the bank.  Upon being confronted, Winnie confessed.  She was suspended for a week without pay, and was denied her annual bonus.
Sandra sued Winnie for invasion of privacy, claiming $90,000 in damages.
After considering these facts, together with the history of privacy-related causes of action in Canadian tort law, the Court of Appeal recognized a new cause of action called “intrusion into seclusion”, which is essentially a sub-category of invasion of privacy.
In order to establish a successful claim based in “intrusion into seclusion” a person must prove:

1.   An unauthorized intrusion;

2.  The intrusion was highly offensive to a reasonable person;

3.  The matter intruded upon was private; and

4.   The Intrusion caused anguish and suffering.

(However, the Court pointed out that the “anguish and suffering” will be presumed in cases where the first three elements have been established.)

The Court noted that currently all Canadians are entitled to the benefit of privacy by way of the various protections afforded them through numerous sources which include legislation and case law.   However, this does not mean that the categories of new potential claims for breach of privacy were closed.    Indeed – and despite the fact that there has previously been no free-standing Canadian tort of “invasion of privacy” – the law has recognized similar claims for “nuisance” and “trespass”.

With that in mind, the Court was willing to recognize that the plaintiff Sandra had endured an unauthorized intrusion into her private affairs which caused her to suffer some monetary damages. However, it emphasized that this new tort of “intrusion into seclusion” would only arise for “deliberate and significant invasions” and that damages “will ordinarily be measured by a modest conventional sum”.

Ultimately, after taking into consideration the fact that Winnie had apologized for her conduct, the court awarded Sandra $10,000 in damages.

Given the recognition of this new cause of legal action, what’s the bottom line for family litigants?  It’s simply this:  Think twice before you snoop!

For the full text of the decision, see:

Jones v. Tsige, 2012 ONCA 32



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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.