Liability Risk For Intrusion Upon Seclusion By Royal Bank: Analysis Based On Jones V. Tsige

You work as a Risk Officer for the Royal Bank. During a routine risk assessment, you discovered that the bank had gone into the system and changed the address of a client in the computer systems without the knowledge or consent of the client. The bank has no records whether the change of address was requested by another party or how it occurred. As a result of the mistake, bank statements have been  sent to the client’s ex-husband and a change of address was sent to two credit agencies.

Please advise the bank whether there is a risk of liability for the bank for the tort of intrusion upon seclusion based on Jones v. Tsige 2012 ONCA 32 (Canlii). This requires you to: 1) Brief Jones v. Tsige: & 2) Advise the bank based on your understanding of the ratio and reasoning in Jones v. Tsige. This requires you must relate the factual/legal findings in the Jones v. Tsige case to your specific factual/legal situation.

Brief of Jones v. Tsige

The Royal Bank during its regular assessment made a discovery that the bank had changed the address details of one of the clients in their computer system. As a result of the change, bank statements were wrongly sent to the client’s former husband. The address change was also sent to two credit agencies. From the details provided the bank has no proof to show that there was a request for the information to be changed. I will determine whether there is a liability risk for Royal bank under the  intrusion upon seclusion tort based on the case of Jones v Tsige(2012)

Facts-The genesis of the case was in July 2009 when the appellant, in this case, MS. Jones Sandra made a discovery that  Ms. Tsige Winnie, had been examining her bank records secretly. Both parties were employees of same bank but different branches. The respondent was involved in an affair with the ex-husband of the appellant. The number of times the appellant accessed Jones records was over 100 times since four years. Upon suspicion of Tsige’s actions, she requested the intervention of the bank which found that indeed Tsige had been viewing her records. The bank acted against her and suspended her for a week without pay, her bonus was also withheld. Jones was not satisfied with the bank's decision and brought an action against the respondent claiming 70,000 Canadian dollars for breach of fiduciary duty owed to her and the invasion of privacy. She also demanded exemplary and punitive damages amounting to C$20,000.

Prior proceedings- The courts in the first instance heard very compelling motions for both parties who were seeking summary judgment. The decision of the judge in the lower courts was to dismiss the claim of the plaintiff stating that the law of Ontario does not have a provision that covers breach of privacy. The judge also stated that MS. Jones was being difficult by denying settlement. The outcome of the superior court of justice was the dismissal of Jones summary judgment and Tsige’s allowed. Jones made an appeal to the Court of Appeal.

Statement of Issue(s)- The issues that the court of appeal was to consider are; Whether Ontario recognized  a tort that dealt with the invasion of a person’s privacy. Whether the motion judge was erred in reaching his decision and whether the judge made an error in relation to costs.

Arguments advanced-  the argument advanced by Ms. Jones was based on Rule 76 of the Rules of Civil Procedure 1990  . Tsige’s argument was that she was remorseful and will not repeat her actions. She also stated that the bank already disciplined her for her actions.

Issues and Arguments in Jones v. Tsige

Judgement and Ratio Decidendi-  Justice Sharp when delivering the unanimous decision of the Appeal Court stated that although there was a lacuna, there is a possibility of its existence. The decision of the court placed heavy reliance on laws from other jurisdictions. The court believed it was their responsibility to come up with laws with the ever-changing society. The court adopted U.S law elements in determining the case. The elements are ,the action carried out by the defendant should have acted in a manner that is reckless and intentional. The defendant’s invasion ought to be unlawful and unjustified. That a reasonable person would find fault in action. The court, therefore, established a new tort. The court was careful by excluding sensitive persons in this category. The factors when determining damages were set out as ,the nature and degree of the offence of the act ,conduct of the parties, the relationship and level of annoyance.

Holding- The court reversed the lower court’s decision and recognised the tort of “intrusion and seclusion.” On damages, the court relied on previous jurisprudence and law awarding the appellant C$10,000 and made no orders as to costs.

From the findings in the case above invasion of privacy is established under tort law and the client can bring an action against the bank . It is important to note that the bank is in a fiduciary position and owes the client a duty of care. Due to the errors, non-intended parties received confidential information this amounts to a breach of trust.

The legal issue that arises is whether there is a right of action  for intrusion upon seclusion. The factors that will be considered are whether the bank's actions were intentional and reckless.Whether the invasion was not lawful and justified and finally whether a reasonable person would find the conduct grossly offensive and humiliating.

Application and conclusion-It is important to note that the focus is on intrusion. Therefore the bank may be found culpable. However, a defence that may be advanced is that the actions of the bank were not intentional. In conclusion for a suit to hold water the conditions laid out in Jones case need to be satisfied the court in recent cases has also been seen to focus on the elements of liability and not in the breach of information as seen in the case of Lozanski v Home Depot Incorporated. 

References

Hunt, C. D.  ‘Privacy in the common law: A critical appraisal of the Ontario court of appeal's decision in Jones v. Tsige.’ (2011).  Queen's LJ, 37, 665.

Catherine Beagan, ‘Privacy Class Actions Five Years after Jones v. Tsige – Key Ontario and Federal Court Decisions’(Oct.23,2017)

https://blakesfiles.com/PDFs/Privacy_Class_Actions_October_2017_TAS_Paper.pdf

Global Freedom of Expression, <https://globalfreedomofexpression.columbia.edu/cases/jones-v-tsige/>, retrieved on 2019-02-10

Jones v. Tsige, 2012 ONCA 32 (CanLII), <https://canlii.ca/t/fpnld>, retrieved on 2019-02-10

Jones v. Tsige, 2011 ONSC 1475 (CanLII), <https://canlii.ca/t/fkppt>, retrieved on 2019-02-10

Rule 76 of the Rules of Civil Procedure 1990

Bennet v Lenovo ONSC 1082

Jones v. Tsige, 2012 ONCA 32

Lozanski v The Home Depot, Inc., 2016 ONSC 5447