By Douglas J. Manning, Partner, Certified Specialist in Family Law

A recent decision in Ontario has raised the profile of the tort of “invasion of privacy” in a case that may have an impact on family law cases.  This case involved a claim by Ms. Jones against Ms. Tsige for “invasion of privacy”.  The act of “invasion” was Ms. Tsige’s successful attempts to electronically access Ms. Jones’ private bank account information 174 times over the course of 4 years.

As it turns out, Ms. Jones and Ms. Tsige worked for the same bank but they did not know each other.  Ms. Tsige developed a relationship with Ms. Jones’ spouse after they had separated but during the time that Ms. Jones and her spouse were trying to resolve their matrimonial difficulties.  Apparently Ms. Tsige’s curiosity got the better of her and her desire to “help” her new partner overwhelmed her better judgment to the point where she continually accessed Ms. Jones’ account information.

The court went through a detailed analysis as to whether there is a cause of action in Ontario for “invasion of privacy” and if so, what are the necessary elements to satisfy the test for the cause of action and if proven, what financial penalty, in the form of a damages award, would be appropriate in the circumstances.

The court summarized the relevant tort in this case as a cause of action for “intrusion upon seclusion” and the factors that must be shown are:

  1. An unauthorized intrusion;
  2. That the intrusion was highly offensive to the reasonable person;
  3. The matter intruded upon was private; and,
  4. The intrusion caused anguish and suffering.

The court found in this case that all four were satisfied in this case.

In terms of an appropriate financial award, the court observed that Ms. Jones had not suffered any actual financial loss but reviewed the range of damages that had been awarded in other cases in Ontario and other jurisdictions for “symbolic” or “moral” damages.  The claims typically involved hurt feelings, embarrassment or mental distress.  The court took into account the frequency of the invasion of privacy; the relationship between the parties, the effect of the violation on the health, welfare, social or financial position of the person; and any distress, annoyance or embarrassment suffered by the person or her family as a result of violation of privacy.

The court felt that the appropriate range of damages was from a very modest amount at the low end to $20,000 at the upper end and in this case determined that $10,000 was an appropriate figure.

While this particular case involved non-spouses, the principles could apply to warring spouses in the family law context.  So think twice before stealing your spouse’s “password” and snooping in their bank accounts, investment accounts, Emails or other private documentation and information.