In a decision released this past Wednesday, the Ontario Court of Appeal has ruled that invasion of privacy is a valid cause of action: a tort of “inclusion upon exclusion”.
In the judgment, Justice Sharpe highlighted the need for the common law to evolve to reflect the realities and risks faced by society. In light of the evolution of technology, information sources and storage, there is a heightened concern relating to the vulnerability and accessibility information.
“It is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion…The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.”
A right to privacy is a longstanding right that has been protected in various ways, and was solidified by the Charter of Rights and Freedoms, according to Justice Winkler.
To be a valid cause of action, the intrusion must be intentional, without lawful justification, and in a method in which a reasonable person would regard as causing distress, humiliation or anguish. However, Justice Winkler emphasizes that the claim will arise only for significant invasions of privacy.
You can read the full judgment here.