The idea of surreptitiously recording confidential conversations as material to be used against someone comes straight out of spy movies and thriller novels. The act itself is clearly reprehensible but it is surprisingly difficult to determine whether legal liability subsists. The actual practice of recording conversations without consent is governed by various criminal, privacy and telecommunications laws, but in Canada, there may also be recourse under the common law.

Until recently, Canada did not recognize protection for invasion of personal privacy per se between individuals. This position was seen in the Ontario Superior Court of Justice decision in Jones v. Tsige, where Whitaker J. found that a freestanding tort of the invasion of privacy did not exist in Ontario. Jones v. Tsige was a case where the defendant improperly accessed the plaintiff's private banking information in an attempt to confirm whether the plaintiff was receiving child support payments. The Superior Court of Justice noted that Canadian courts were reluctant to recognize a separate right in light of the Ontario Court of Appeal’s decision in Eutenier v. Lee, where the court noted that there is no "free standing right" to dignity and privacy under the charter, and dismissed the plaintiff’s claim on the basis that Ontario law did not recognize a tort of breach of privacy. This position was criticized by many academics and even under IP Osgoode in this post by David Vaver.

This position was reversed by the Ontario Court of Appeal in a decision two weeks ago, whereby Sharpe J.A. recognized a new tort, “intrusion upon seclusion”, finding that aggrieved parties should have recourse for violations of their privacy, especially in an age where vast amounts of private information is generated and stored. Summary judgement was granted in Jones' favour, with damages amounting to $10,000.

A similar case was decided in the England and Wales High Court, Cooper v. Turrell, where a dispute between two directors of a company led to supposedly private conversations being used in a malicious way to make false allegations about the health of one of the directors. The director, Mr. Cooper, was having a private discussion with another director, whereby he disclosed certain health issues he was facing in a manner that was explicitly confidential. The CEO, Mr. Turrell, had the room “bugged”, and made public allegations about Cooper’s health on both his blog and Twitter account, embedding the transcript and the recording of the discussion. In coming to his decision, Tugendhat J., granted a permanent injunction for the plaintiff and a rather large sum of damages to Mr. Cooper: £50,000 for libel, an additional £30,000 for misuse of private information. It was also noted in obiter that had there been only misuse of private information, he would have given £40,000 in damages.

These cases demonstrate a growing trend around the world towards extending the common law to provide legal protection where one member of the public misuses the private information of another. In the ever-evolving reality of technological advances, it has become trivially easy for a malicious party to capture the personal and private information of an individual, and it is a welcome sight to see the Courts starting to take an active role in demonstrating that this form of behavior is not acceptable in today’s society.

Brian Chau is a JD candidate at Osgoode Hall Law School.