Professor David Vaver of Osgoode Hall Law School & member of IP Osgoode’s Advisory Board.
Can one’s bank account be spied on with impunity? In Ontario it seems so, if the decision of the Superior Court in Jones v. Tsige 2011 ONSC 1475 is to be believed.
There a bank employee used her computer on 174 occasions over four years to access and look at a customer’s bank account. The customer happened to be an employee at another branch of the bank and the snoop, who was living with the customer’s ex-husband, apparently wanted to know what alimony he was paying. The bank eventually discovered her misconduct. She admitted she had no legitimate reason to access the account and promised to be good in future. The bank disciplined but did not fire her.
The customer sued in Superior Court for damages and an injunction for breach of privacy – and lost. Whitaker J. summarily dismissed the proceedings before trial, saying there was no common law action for breach of privacy in Ontario. He also summarily dismissed an alternative action for breach of fiduciary duty, although one might have thought that an action for breach of confidence against the snoop would have had more chance of success.
The decision will be the subject of a Note in a forthcoming issue of the Intellectual Property Journal later this year. Meanwhile it is pertinent to note that other Ontario judges have awarded remedies for invasion of privacy (see cases cited in Somwar v. McDonald’s Restaurants of Canada Ltd. 2006 CanLII 202, cited in Jones), and others have refused to strike such claims summarily (see, e.g., Nitsopoulos v. Wong, 2008 CanLII 45407, also cited in Jones). What then has changed?
Whitaker J. claimed that the Ontario Court of Appeal’s decision in Euteneier v. Lee 2005 CanLII 33024 was “binding and dispositive” against the claim [Jones at ), but it is not. Euteneier involved negligence, assault and Charter claims against the police for mishandling an arrested individual. In one sentence the court said that plaintiff’s counsel “properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law.” A counsel’s concession during argument about a cause of action that was neither pleaded nor in issue is not “binding and dispositive” on anything. A judgment that prefers a dictum to contrary decisions of co-ordinate courts and neglects comparable developments in other common law jurisdictions in Canada (e.g., Dyne Holdings Ltd. v. Royal Insurance Company of Canada 1996 CanLII 3672 (P.E.I., A.D.)) and abroad (e.g., Douglas v. Hello! Ltd.  UKHL 21; Hosking v. Runting  NZCA 34) will have little impact outside Ontario, and deserves to have little within it either.