Liability Risk for Royal Bank under Intrusion upon Seclusion Tort - Case Brief

This case brief discusses the liability risk for Royal Bank under the intrusion upon seclusion tort based on the case of Jones v Tsige(2012). It explores the facts, prior proceedings, arguments, judgment, and holding of the case. The summary provides advice to Royal Bank and discusses the legal issue and application of the case.

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CASE BRIEF
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)
Jones v. Tsige, 2012 ONCA 32 (CanLII)1
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
1 (CanLII), <http://canlii.ca/t/fpnld>, retrieved on 2019-02-10
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provision that covers breach of privacy.2 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.
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.
2 (CanLII), <http://canlii.ca/t/fkppt>, retrieved on 2019-02-10
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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.
Summary Advice to Royal Bank
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.3Whether the invasion was not lawful and justified and finally whether a reasonable
person would find the conduct grossly offensive and humiliating.4
Application and conclusion-It is important to note that the focus is on intrusion. Therefore
the bank may be found culpable.5 However, a defence that may be advanced is that the
actions of the bank were not intentional.6 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.
3 Catherine Beagan, “Privacy Class Actions Five Years after Jones v. Tsige – Key Ontario
and Federal Court Decisions” pg.3
4 Global Freedom of Expression,
https://globalfreedomofexpression.columbia.edu/cases/jones-v-tsige/
5 Bennet v Lenovo
6 Hunt, C. D. “Privacy in the common law: A critical appraisal of the Ontario court of appeal's
decision in Jones v. Tsige”
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References
Published Sources
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.
Electronic Sources
Catherine Beagan, ‘Privacy Class Actions Five Years after Jones v. Tsige – Key Ontario and
Federal Court Decisions’(Oct.23,2017)
http://blakesfiles.com/PDFs/Privacy_Class_Actions_October_2017_TAS_Paper.pdf
retrieved on 2019-02-10
Global Freedom of Expression,
<https://globalfreedomofexpression.columbia.edu/cases/jones-v-tsige/>, retrieved on 2019-
02-10
Jones v. Tsige, 2012 ONCA 32 (CanLII), <http://canlii.ca/t/fpnld>, retrieved on 2019-02-10
Jones v. Tsige, 2011 ONSC 1475 (CanLII), <http://canlii.ca/t/fkppt>, retrieved on 2019-02-
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Statutes
Rule 76 of the Rules of Civil Procedure 1990
Cases
Bennet v Lenovo ONSC 1082
Jones v. Tsige, 2012 ONCA 32
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Lozanski v The Home Depot, Inc., 2016 ONSC 5447
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