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Does Ontario Law Recognize the Tort of Invasion of Privacy
In a recent Ontario decision, Somwar v. McDonald’s Restaurants of Canada Ltd., the Plaintiff brought an action against the Defendant restaurant chain alleging that the latter had unlawfully invaded his right to privacy by conducting a credit bureau check on him without permission. Thereafter, the Defendant brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure seeking an order dismissing the Plaintiff’s action on the ground that the statement of claim disclosed no reasonable cause of action.
This case raised two important issues. Firstly, whether someone whose privacy right had been violated by another person could pursue a civil remedy in the courts of Ontario? And secondly, whether our law recognizes the tort of invasion of privacy?
Relying on Hunt v. Carey, the Court indicated that the test that should be applied to determine whether the statement of claim should be struck out and the action dismissed is whether it is “plain and obvious” that the claim discloses no reasonable cause of action. Furthermore, it considered the decision in Nash v. Ontario to assume that the conduct of the Defendant in allegedly conducting a credit check of the Plaintiff without the latter’s permission was somehow illegal and stated that, although the Plaintiff did not specify how or why the Defendant’s action was illegal, the inadequacy was treated as a drafting deficiency.
The Court also made reference to the Ontario Consumer Reporting Act and decided the case on the basis that the Defendant’s alleged conduct involved improperly obtaining personal and private information concerning the Plaintiff. It noted that the statute governs the collection and release of information relating to consumers’ income, debts, cost of living obligations and assets, information that is commonly regarded as personal and private. Furthermore, it pointed out that the statute also limits the circumstances in which consumer reports may be obtained, and creates offences for non-compliance.
In recognizing the intentional tort of invasion of privacy, the Court relied on William Prosser’s article where he described an invasion of privacy as intrusion upon a person’s seclusion or solitude. Furthermore, the Court made reference to the Law of Torts in Canada, 2nd ed. to indicate that damages have been awarded for invasion of privacy and courts awarding such damages have treated such invasion as an intentional tort.
With respect to the law in Ontario, the Court indicated that the courts of Ontario have not been unanimous concerning the existence of a common law tort of invasion of privacy. Thus, the Court stated that in light of the contradictory trial decisions in Ontario and the absence of any clear statement on the point by an Ontario appellate court, it is impossible to determine whether there exists a tort of invasion of privacy in Ontario.
Furthermore, the Court noted that the Supreme Court of Canada has acknowledged the existence of a privacy right by holding that section 8 of the Charter of Rights and Freedoms protects the privacy of the individual.
Provinces such as British Columbia, Manitoba, Newfoundland and Saskatchewan have created a statutory tort of invasion of privacy. In Ontario, however, there is no statutory remedy for unreasonable intrusion into an individual’s private affairs.
In acknowledging that advancements in technology allow for personal data of an individual to be collected, assessed and disseminated more easily than before, the Court stated that there is a resulting concern in our society about the risk of unauthorized access to an individual’s personal information and that traditional torts may not provide adequate protection against infringement of a person’s privacy interest.
Notwithstanding the ambiguity concerning the tort issue, the Court nevertheless dismissed the Defendant’s motion based on the finding that the Plaintiff could rely on statutory rights to forward its claim.
For a copy of the decision, visit: