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Intrusion upon seclusion protected by Canadian court

Winnie Tsige, a bank worker, accessed the account details of Sandra Jones, the former wife of her current boyfriend. Jones brought an action for invasion of privacy and breach of fiduciary duty. This action was dismissed with the judge deciding that there is no free standing right to privacy under the Canadian Charter of Rights and Freedoms. But Jones appealed the dismissal of her claim.

Justice Sharp in the Court of Appeal then considered whether Ontario law recognizes invasion of privacy as a cause for civil action. He decided that it does, as an ‘intrusion upon seclusion’. The test is whether the act is intentional, is an unjustified invasion of private affairs, and could reasonably be considered as offensive. In coming to this conclusion Justice Sharp specifically observed the rapid rate of technological change, the internet, and the growth of digital records.

This decision has ramifications for all companies operating in Ontario that store or collect personal information for either  customers or employees. It opens the possibility of the employer being held vicariously liable if those records are accessed by staff, or others, without lawful justification. Although damages have been fixed at a relatively low level (up to $20,000), the possibility of a class action involving multiple plaintiffs could be far more serious.

The case highlights the need for companies to instigate strong security policies, effective staff awareness training, and strict access control procedures for all stored personal data.

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