Since the landmark case of Jones v. Tsige was released on January 18, 2012, the legal press and blogosphere have been buzzing about the newly developed tort of “intrusion upon seclusion.” The case represents a major development in privacy law and provides people whose privacy has been breached with a new way to seek redress.
Since this case will have practical implications for condominium corporations, it was a pleasure for me to report on this case to a whole roomful of condominium managers just two days after it was released.
These are my speaking notes for the talk I gave at a legal grab bag luncheon for the Association of Condominium Managers of Ontario on January 20, 2012. ACMO members can soon watch the video of the entire luncheon presentation online (login required).
Those of you who have attended many of these luncheons and condo conferences over the years will have heard a lot about privacy. What’s remarkable is that we have not seen or heard much in the way of lawsuits or awards of damages for breaches of privacy, whether in the condo world or even in the business world.
That’s largely because our courts consistently held that there was no common law right to bring a lawsuit where the only claim is for damages for invading personal privacy. As a result, people typically couldn’t come to court and, instead, they had to go to a privacy commissioner or make claims under a specific piece of legislation in order to raise complaints, and that has not proven to be a very user-friendly or effective for complainants and so far it hasn’t been a big deal for respondents. Privacy cases against condos have been few and far between.
But that was then.
In what is described as landmark decision, released on January 18, 2012, the Ontario Court of Appeal has, for the first time, confirmed that people have the right to bring a lawsuit in court for damages for invasion of personal privacy.
While it’s not a condo case, this decision will affect condos, property management firms and just about every other sector and business in our province.
The case is called Jones v. Tsige (and Tsige is pronounced: “SIGGAY”).
The basic facts are these:
Jones and Tsige worked at different branches of the same bank. Jones kept her accounts at that bank. The two women did not know or work with each other, but Tsige became involved in a relationship with Jones’ former husband. And then for about four years, Tsige used her workplace computer to access information about Jones’ personal bank accounts.... on at least 174 occasions. The information displayed included bank transaction details and personal information like date of birth, marital status and address.
Tsige did not publish, distribute or record the information in any way.
When the bank detected the unauthorized access (presumably on the 174th time) and confronted her about it, Tsige admitted that she had looked at Jones’ banking information, and she apologized. Because she had breached the bank’s policies, Tsige was suspended without pay for a week and lost her yearly bonus.
Jones then sued Tsige in Superior Court for damages of $70,000 for invasion of privacy and breach of fiduciary duty, and $20K for punitive and exemplary damages.
The lawsuit was dismissed at an early stage when the court found that there was no issue of fiduciary duty and, further, that there was no right at common law to sue for damages for breach of privacy. Court found that Jones could only make a complaint under privacy legislation. Generally speaking, that legislation doesn’t let you do very much or recover very much.
At the court of appeal, a review of 125 years of case law and legal scholarship revealed that the concept of “breach of privacy” actually has four separate components. The one that was most applicable to this case was the tort of “intrusion upon seclusion.”
It sounds weird, but the concept of “intrusion upon seclusion” makes sense when it is summarized as follows:
A person who intentionally intrudes, physically or otherwise, upon the seclusion of another person or his private affairs . . . is subject to liability for invasion of privacy if the invasion would be highly offensive to a reasonable person.
After considering the state of technology as it exists today and how much personal information about all of us is “out there” in electronic format, the court found that it is appropriate to now confirm the existence of a right to sue for intrusion upon seclusion in Ontario, and that this is a reasonable way for the court to develop the law as technology and the needs of society change over time.
Now, to clarify the parameters of this new right, the court established three elements that must be present in order for a claim to succeed for intrusion upon seclusion:
First, the defendant’s conduct must be intentional or reckless;
Second, the defendant must have invaded the plaintiff’s private affairs without lawful justification; and
Third, a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
It is not necessary to prove that the plaintiff suffered economic harm as a result of the defendant’s acts. Also, it is not necessary to show that the defendant spread any information to other people. The invasion itself is sufficient.
Recognizing that confirming a new tort is like opening Pandora’s Box, the court gave some further clarification on this new right to sue by saying that:
A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims by individuals who are sensitive or unusually concerned about their privacy are excluded. Further, it is only to matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence, that, when viewed objectively by a reasonable person, can be described as highly offensive. [Emphasis added.]
From this passage, the court appears to have set a threshold high enough to provide aggrieved people with a remedy while offering defendants protection from frivolous claims. Each case must be decided on its own facts but this decision is clear that there must be something very significant about the circumstances of a case to justify the court giving an award of damages to compensate the victim and punish the offender.
Turning to how damages should be quantified when a claim is successfully established, the court held that that damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.” In cases where the plaintiff has suffered no economic loss, the damages should be “modest but sufficient to mark the wrong that has been done.” This tells us that there won’t be Louisiana-style jury awards of a gazillion dollars. That’s good news.
In getting down to the figures in the instant case, the court examined awards given in cases of a comparable nature, which ranged from $500 for superficial infractions to over $50,000 for egregious cases. Five factors were cited as a tool to help court decide the appropriate amount of damages in cases like this. Those factors include:
1. the nature and frequency of the invasion;
2. its effect on the plaintiff’s health, social, business or financial position;
3. the nature of any relationship between the plaintiff and defendant;
4. any distress, annoyance or embarrassment suffered by the plaintiff; and
5. the conduct of the parties, both before and after the invasion, including any apology or offer of amends made by the defendant.
After applying these factors in the Jones v. Tsige case, and recognizing that while Tsige was apologetic for what she did, the court found that her actions were deliberate, prolonged and shocking, and that this case was crying out for a remedy. For these reasons, the court set aside the dismissal of the action and awarded Ms. Jones damages of $10,000 for intrusion upon seclusion. And, with that, a new kind of lawsuit is born.
We will be watching to see how this case trickles down for all of us in condo land. While it’s unlikely that the flood gates will open up, we do expect that we’ll be seeing claims like this nature in the future, probably in the small claims court, which can give damages of up to $25,000. The issues that we’re most likely to see in condominiums might include things like:
• For Records – Letting unauthorized people view the owners’ preauthorized payment info – that’s trouble.
• For Entering units -- Barging into a dwelling unit in the middle of the night with no notice and for no good reason is probably going to give rise to a problem.
• For Surveillance & security – Placing cameras (or hidden cameras) in fitness areas or washrooms will all fall under this new tort.
Any property manager can probably come up with plenty more good examples.
Here are three points to take away to help you minimize the risks:
Second: Managers or boards who discover a significant breach of unit owners’ privacy should try to get in front of the problem so that the breach can be sealed and the situation can be deescalated and diffused. Get legal advice. Remember that Ms. Jones did not sue the bank. She sued Tsige, who did the evil deed. Things might have been different if the bank’s management knew of the privacy breach or didn’t take any action once they found out about it. By being proactive, a condo might be able to extricate itself from a messy situation where the breach is caused by a director, contractor or other unit owners.
Third: When making entry to units, remember that section 19 of the Condo Act requires “reasonable” advance notice to be given. You’re wise to give that notice in writing and make sure you’ve got a way to show the date/time the notice was given and the method used to give it. And when making entry, people should announce themselves loudly so they don’t “intrude” upon someone’s “seclusion.” Wink, wink.
That’s just a quick summary of this case which is hot off the press. You’ll be reading more about this case soon, but those of you who attended this ACMO legal panel luncheon heard about it first!