In January 2012, a unanimous panel of the Ontario Court of Appeal released its decision in Jones v Tsige, 2012 ONCA 32. In that decision, the court recognized the tort of invasion of privacy in Ontario, which will have implications for family law lawyers and clients. 

In Jones v Tsige, Winnie Tsige (the defendant) was a bank employee who was involved a dispute with her former partner, who was Jones’ (the plaintiff’s) former husband.  Tsige accessed Jones’ banking records more than 174 times over four years.  The accessed information included not only transaction details, but also address, date of birth, and marital status.  The evidence indicated that Tsige had never published, distributed, or recorded the information in any way.  However, Tsige’s access to the banking records allowed her to determine whether child support was being paid between Jones and her former spouse, and how much.  Jones brought a claim for invasion of privacy.  The lower court denied Jones’ claim, which decision was reversed on appeal. 

The Ontario Court of Appeal held that there is a tort of “intrusion upon seclusion”, which ruling is consistent with the personal privacy rights prevalent in modern society.   Since the inception of the Charter of Rights and Freedoms , privacy has been recognized as a fundamental value in our law.  As the Court held in Jones v Tsige, informational privacy, in particular, has been identified as worthy of protection, given the technological age in which we live:    

The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message. (Paragraph 67)

Put briefly, the elements of the tort of intrusion upon seclusion are as follows:

a)      the defendant’s conduct must be intentional, deliberate and the invasion significant;

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. Proof of harm to a recognized economic interest is not required, it simply goes to damages.

The court provides examples of invasions of privacy that would qualify as intrusion upon seclusion and specifically includes intrusion upon “matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

Clearly this case has family law implications.  Spouses often share a central computer where all of the family financial information is stored.  Frequently, although the spouses have different email addresses, they both access email on this same computer.  Moreover, spouses regularly exchange bank and other passwords to permit each other to conduct day to day family business.  The Jones v Tsige case, along with criminal code provisions of which most spouses are unaware. Separate parties must know of the existence of criminal, and now civil, provisions which govern access to the family computer, the information stored within it and the right to use password and other information the spouses once allowed each other, since they are no longer “together”.         

Clients want, and lawyers encourage them, to collect all documentation that may be relevant to their case.  This is not a problem when the documents belong to the client in question.  However, many times, these documents are the property of the other spouse.  For example, a client may have accessed her spouse’s email account and printed emails between her spouse and a third party or a client may have downloaded her spouse’s bank records.  These documents are not the property of the client and, hence, are problematic on many levels.  First, there is the possibility of a criminal offence having been committed by the client, depending upon how she accessed the information.  Part VI of the Criminal Code deals specifically with invasion of privacy offences, including wilfully intercepting a private communication.  If the client “hacked” into the spouse’s email account, for example, or bank records, that client may be guilty of a criminal offence.  Second, with the recent Court of Appeal decision, the client may also found liable civilly to the spouse for any damages resulting from the invasion of privacy. 

Consider the British Columbia case of Nesbitt v. Neufeld, 2010 BCSC 1605.  In Nesbitt v. Neufeld , for example, Dr Nesbitt and Ms Neufeld were involved in a relationship and had a child together.  Ms Neufeld was granted custody of the child and Dr Nesbitt supervised access.   Dr Nesbitt obtained Ms Neufeld’s old home computer before Ms Neufeld could transfer and erase the data it contained.  Dr Nesbitt then published Ms Neufeld’s private documents, sent her private letters to friends and colleagues, started a negative Facebook page and an offensive website in Ms Neufeld’s name.  The court was disturbed by Dr Nesbitt’s actions and found an invasion of privacy, which portion of the decision is worth quoting: 

Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal.

It is no answer for Dr. Nesbitt to say that the correspondence was in the computer that Ms. Neufeld gave him. A brief scan of Ms. Neufeld’s correspondence would soon show their personal nature, and ordinarily, one would return them to the author and/or owner. To hold onto the communications for some five years and then purport to use them allegedly because of Ms. X’s possible interest in a young male or alternatively to show Ms. X’s abuse of her employee’s email system is as hollow an excuse as one can imagine. There can be no doubt as to Dr. Nesbitt’s intent and that was to embarrass and scandalize the email writers – Ms. Neufeld and Ms. X.

Subsequent use of these private and personal correspondences as an appendage to the Second Rotary Club Email, as a reference on the Wicked Wendy Neufeld Website and as evidence in the Letter to the Ministry serve to compound the breach of Ms. Neufeld’s privacy.

I find Ms. Neufeld had a reasonable expectation that her personal information and private correspondence would not be emailed or faxed to third parties or publicly posted on the Internet without her knowledge and consent. Put alternatively, Ms. Neufeld did not consent to Dr. Nesbitt’s use of data from her home computer for unlawful purposes. (Paragraphs 91-94)

Granted, Dr Nesbitt did take things to an extreme that most rational people would not contemplate.  But separating parties should be aware and beware nonetheless.  Ontario will soon be seeing cases similar to Nesbitt v. Neufeld.   In acrimonious family litigation, civil liability for invasion of privacy may be another weapon in a spouse’s arsenal.  Best not to give the other spouse any opportunity to use it.  Snooping is not allowed.  Stay out of your spouse’s private files and records, whether online or on paper.  If you continue to use the family computer, change your passwords to protect yourself or, even better, get a laptop and remove anything and everything of personal import from the home computer.  Better safe than sorry.