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Are Breaches of Privacy Compensable Under Law?

by | 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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Sam M
Sam M
16:11 19 Jan 18
Dyana was so kind to help me and respond to my query within 24h even though they do not pursue the specific class action I was looking for. She sent me few links by email. Thank you Dyana.
linda frausell
linda frausell
01:21 16 May 17
I have dealt with Wagner and Associates over the years and have received great advice,support and results . Their team is very respectful and show they care. You can trust them to take care of you and they always have your best interest in hand. I would definetly recommend them .
frank slaunwhite
frank slaunwhite
16:29 03 May 17
Ray Wagner and his legal team have been representing my niece and I for many years. They have been honest and quick to respond to all our needs in a professional manner. I highly recommend Wagners Law Firm and appreciate their caring approach.Thanks
Missy Day
Missy Day
12:03 06 Oct 16
I can't speak highly enough about the lawyers at Wagners who represented me for injuries from not one but two motor vehicle accidents. They were very professional and approachable. I was kept informed of all steps in the process and all of my inquiries were responded to and dealt with very quickly. The lawyers are knowledgeable and showed great empathy for what I was going through. I would recommend this firm to anyone!
Nicholas Gordon
Nicholas Gordon
11:30 06 Oct 16
I contacted Wagners about a motor vehicle accident.I was able to speak with someone right away. The staff were very pleasant and helpful.I received a response about pursuing a case the next day.I would highly recommend this firm.
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