Professor David Vaver of Osgoode Hall Law School & member of IP Osgoode’s Advisory Board.
Can one’s bank account be spied on with impunity? In Ontario it seems so, if the decision of the Superior Court in Jones v. Tsige 2011 ONSC 1475 is to be believed.
There a bank employee used her computer on 174 occasions over four years to access and look at a customer’s bank account. The customer happened to be an employee at another branch of the bank and the snoop, who was living with the customer’s ex-husband, apparently wanted to know what alimony he was paying. The bank eventually discovered her misconduct. She admitted she had no legitimate reason to access the account and promised to be good in future. The bank disciplined but did not fire her.
The customer sued in Superior Court for damages and an injunction for breach of privacy – and lost. Whitaker J. summarily dismissed the proceedings before trial, saying there was no common law action for breach of privacy in Ontario. He also summarily dismissed an alternative action for breach of fiduciary duty, although one might have thought that an action for breach of confidence against the snoop would have had more chance of success.
The decision will be the subject of a Note in a forthcoming issue of the Intellectual Property Journal later this year. Meanwhile it is pertinent to note that other Ontario judges have awarded remedies for invasion of privacy (see cases cited in Somwar v. McDonald’s Restaurants of Canada Ltd. 2006 CanLII 202, cited in Jones), and others have refused to strike such claims summarily (see, e.g., Nitsopoulos v. Wong, 2008 CanLII 45407, also cited in Jones). What then has changed?
Whitaker J. claimed that the Ontario Court of Appeal’s decision in Euteneier v. Lee 2005 CanLII 33024 was “binding and dispositive” against the claim [Jones at [55]), but it is not. Euteneier involved negligence, assault and Charter claims against the police for mishandling an arrested individual. In one sentence the court said that plaintiff’s counsel “properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law.” A counsel’s concession during argument about a cause of action that was neither pleaded nor in issue is not “binding and dispositive” on anything. A judgment that prefers a dictum to contrary decisions of co-ordinate courts and neglects comparable developments in other common law jurisdictions in Canada (e.g., Dyne Holdings Ltd. v. Royal Insurance Company of Canada 1996 CanLII 3672 (P.E.I., A.D.)) and abroad (e.g., Douglas v. Hello! Ltd. [2007] UKHL 21; Hosking v. Runting [2004] NZCA 34) will have little impact outside Ontario, and deserves to have little within it either.
2 Responses
I blogged about this case a few weeks ago on the site linked above — in addition to what you’ve already noted here, one of the most bizzarre elements of the decision for me was the oblique suggestion that the plaintiff should have sought a remedy through PIPEDA, seemingly a complete misunderstanding of both the purpose and the operation of the Act.
Thank you for alerting me to your blog on this case. We both agree something has gone wrong with this case. Your comment at the end of your blog that Tsige sufferered “only an (unstated) disciplinary action from her employer” is not quite right: at [23] of the judgment, the court said: “Ms. Tsige was disciplined with a five day suspension and denied a yearly bonus that would otherwise have been paid. She was required to review and discuss with BMO privacy principles and standards. Ms. Tsige was advised that if she engages in further similar conduct, she would be dismissed.” Still, this is little comfort to the snooped on customer, any more than the court’s gratuitous advice that she should seek some sort of relief from PIPEDA. The judge thinks that the presence of privacy legislation in Ontario and federally means there is no need for the common law to intervene but that phenomenon cuts more strongly the other way: see, eg, Canson Enterprises Ltd. v. Boughton & Co. (1991) 85 DLR (4th) 129 (SCC), 151 by Laforest J., approving a statement that ““the evolution of Judge-made law may be influenced by the ideas of the legislature as reflected in contemporary statutes and by other current trends.” If judges like the one in Jones v. Tsige are going to chase single-sentence dicta, that one from the Supreme Court of Canada seems more pertinent that the one the court relied on from the Ontario Court of Appeal. I still am puzzled why the plaintiff did not plead breach of confidence by the snoop as an alternative cause of action. That looks a stronger alternative than the fiduciary claim the court struck out. That possibility is still not an excuse for the court’s refusal to recognize an overlapping common law privacy action.
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