The Ontario Court of Appeal has recognized the tort of invasion of privacy; in other words, it is now possible to sue someone for invasion of privacy. This is going to have far-reaching consequences for condominium corporations.
Many people have always assumed that it was possible to sue someone for invasion of privacy, however, such an assumption has, to date, been incorrect. While other places, such as the United States of America, have permitted someone to sue over invasion of privacy, in Ontario people have been confined to seeking remedies for nuisance or trespass, or breach of statute, such as the Personal Information Protection and Electronic Documents Act.
In Jones v. Tsige, 2012 ONCA 32, the Court of Appeal sets out the elements for a cause of action for invasion of privacy as follows:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
In making the foregoing pronouncement, the Court of Appeal was careful to place limitations on the tort to prevent a flood of claims. The Court of Appeal goes on to write:
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into 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.
The Court of Appeal further recognized that there is no absolute right to privacy and that an action for invasion of privacy may be met with competing claims. The Court of Appeal suggested the example of freedom of expression and freedom of the press. It seems to me that it is reasonable to suggest that other competing claims might be the performance of a condominium corporation’s statutory duty, such as, for example, gaining entrance to a unit to remedy an unsafe condition or perform maintenance and repairs.
The Court of Appeal also suggested that general monetary damages (this does not include actual economic loss or punitive damages) be limited at around $20,000.00 (to put this in perspective, this is approximately in the range of money that a court might award for pain and suffering for an uncomplicated injury to a wrist or ankle resulting in some permanent loss of function).
In recognizing the tort, the Court of Appeal took into account, among other things, the increasing importance placed on personal privacy in an electronic age, as well as recent legislation aimed at protecting personal privacy and information.
So what does this mean for condominiums?
- Can a condominium be found liable for invasion of privacy for entering a unit to inspect the smoke detectors or maintain the HVAC?
- Can a condominium be found liable if a unit owner’s telephone number is accidentally released?
- Can soliciting proxies be the basis for a claim for invasion of privacy?
- Does taking pictures of an unauthorized back yard patio for the purposes of enforcement under the Condominium Act, 1998 amount to a claim for invasion of privacy?
I suspect that the existence of a statutory duty would be a strong defence to an action for invasion of privacy. The test requires the invasion to be significant and it requires an invasion into private affairs. It seems to me that there should be a good argument that a reasonable person would not find it highly offensive that the condominium enters their unit to change the HVAC filter pursuant to its maintenance and repair duties; when someone buys into a condominium they are presumed to know and agree to the reciprocal rights and duties of the condominium and the owners.
Time will tell. As boards and property managers know, all of the claims they have to deal with and spend money on do not always have merit. It is not unreasonable to forecast an increase in allegations of invasion of privacy once news of the new tort spreads. Going forward, boards, property managers and condo lawyers are going to have to be mindful of concerns over invasion of privacy.