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Are Breaches of Privacy Compensable Under Law?

Victor Lewin - Friday, June 30, 2017

Personal injury can fall under a number of categories. Individuals who have suffered intentional or unintentional harm can develop a range of physical and emotional issues. When a person is harmed, the law permits compensation awards. As an example, if a pedestrian is hit by a vehicle while crossing at a marked crosswalk, and that person receives injuries, then damages can be sought from the operator of the motor vehicle. Someone who is victimized by sexual assault and who then suffers emotional or mental issues like depression or suicidal ideation, then he or she would also be entitled to compensation from the attacker.

While compensation is available for many forms of personal injury, it is not always obvious if an award for damages is available. An invasion of one’s privacy, such as unauthorized access to personal, medical or financial information, is compensable. Many persons who have been the victims of such privacy breaches often suffer ramifications due to the unauthorized access, including embarrassment, loss of confidence and degradation. A few years ago, the Ontario Court of Appeal released a decision, Jones v. Tsige , 2012 ONCA 32 that clarified whether such injuries, stemming from a breach of privacy, are compensable under law.

The defendant was a bank employee. Over a four year period she accessed the plaintiff's banking records more than 174 times. The accessed information included not only transaction details, but also address, date of birth, and marital status. No information had been published, distributed, or recorded by the defendant in any way. Other than the defendant being in a relationship with the plaintiff's ex-husband, it was not clear why she was viewing these records. She acted in breach of bank policy.

The plaintiff brought a claim for invasion of privacy and sought general and exemplary damages.

The Ontario Court of Appeal concluded that the plaintiff was entitled to damages for having suffered an invasion of privacy. The Court of Appeal confirmed the existence of a right of action for intrusion upon seclusion.

The Court analyzed and assessed the likelihood of a claim for intrusion upon seclusion being successful. The Court reasoned that an individual who intentionally intrudes, physically or otherwise, upon the seclusion of another or his/her private affairs or concerns, is subject to liability to the person harmed by the breach for invasion of his/her privacy, if the invasion was highly offensive to a reasonable person.

The Ontario Appeal Court factually found that the claim was appropriate in that the intrusion was intentional and it would be highly offensive to any rational person.

Concerning the appropriate level of damages that should be affixed to a privacy breach claim, the Court found the Defendant’s actions to be deliberate and malicious. Repeated breaches occurred, and the claimant was obviously greatly affected and disturbed by the repeated intrusion into her private financial affairs. While Jones suffered no public embarrassment or harm to her mental state, her personal security or suffered any affect to her social, business or financial position, coupled with the fact that the Defendant apologized for the breaches and made sincere efforts to make things right, the Court still awarded damages in the amount of $10,000 for the breach of the Plaintiff’s personal financial information.

The Jones v. Tsige decision from the Ontario Court of Appeal has since had an effect on civil litigation, particularly in relation to class actions where large companies with 1000s of individuals’ sensitive private information can be easily and unlawfully accessed by an employee. The Jones case represented a significant milestone in the development of this area of the law. Wagners have currently filed two class actions concerning breaches of sensitive and personal medical information of patients at two hospitals in Nova Scotia.

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