Jones v. Tsige, 2012 ONCA 32 is a very significant decision of the Ontario Court of Appeal (Winkler CJO, Sharpe JA and Cunningham ACJ (ad hoc)). In this precedent setting case, which has been characterized as "very important" and "potentially revolutionary", the Court recognized for the first time in Canada a privacy tort of "intrusion upon seclusion". The decision is expected to have wide-ranging ramifications and consequences throughout Canada.
The Court held that the elements of the new tort are as follows: (a) the defendant's conduct must be intentional (which includes reckless conduct); (b) the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and (c) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
The Court stated that the protection of privacy will have to be reconciled with "competing claims" such as freedom of expression. In addition, the Court stressed that the tort will arise only for "deliberate and significant invasions" and that damages "will ordinarily be measured by a modest conventional sum". The Court set forth a landmark framework regarding damage awards in such cases. In this case, the Court took into account that the defendant has apologized for her conduct and made genuine attempts to make amends.
The respondent was advised in this matter by a team of Fasken Martineau lawyers that included Alex Cameron and Nicole Melanson.