Civil Damages and Divorce: The Tort of "Intrusion Upon Seclusion"

Can I read my ex's emails? 

The short answer? No.

It’s important to respect your partner’s privacy, both during and after separation or divorce proceedings. While it may seem tempting to go through your partner’s personal emails, social media accounts, or financial records, according to a 2012 case from the Ontario Court of Appeal, your partner can now make a civil claim for invasion of privacy.  In this post, Xinya Wang, a University of Ottawa law student and our current summer intern, reviews the law in this area.

In Jones v Tsige, the Court adopted the tort of invasion of privacy, also known as “intrusion upon seclusion.” Winnie Tsige was in a common-law relationship with Sandra Jones’ former husband; although neither party knew each other, both worked for the same bank. Over four years, Tsige had used her employee credentials to repeatedly access Jones’ banking record. In his decision, Justice Robert Sharpe found Tsige’s actions to be a “significant intrusion into [Jones’] highly personal information” and awarded $10,000 in damages.

What might count as a legally actionable invasion of privacy?

According to Justice Sharpe, conduct that qualifies as an invasion of privacy must:

  1. be intentional or reckless;
  2. have invaded, without lawful justification, the other party’s private affairs or concerns; and
  3. be such that a reasonable person would view the conduct as highly offensive, causing distress, humiliation, or anguish.

However, this tort only applies for acts that are “deliberate and significant invasions of personal privacy.” Courts will exclude individuals who are “sensitive or unusually concerned” about their privacy. When viewed objectively on the reasonable person standard, the intrusion should be highly offensive. These include intrusions into financial or health records; sexual practices and orientation; or employment, diary or privacy correspondence.

What are possible consequences?

Damages for an “intrusion upon seclusion” are usually limited to $20,000.00. When deciding the amount of damages, judges will consider several factors. These factors include:

  1. the nature, incidence, and occasion of the act;
  2. the effect of the act on the other party’s health, welfare, social, business, or financial position;
  3. any relationship, whether domestic or otherwise, between the parties;
  4. any distress, annoyance, or embarrassment suffered by the other party; and
  5. the conduct of the parties, both before and after the act, including any apology or offer of amends.

What have the courts decided?

Since Jones, Ontario courts have acknowledged a variety of scenarios, such as:

  • Accessing a Legal Aid file, which resulted in damages of $7,500.00 (McIntosh v Legal Aid Ontario);
  • Accessing a pilot’s work schedule, which resulted in damages of $1,500.00 (Stevens v Walsh); and
  • Secretly installing a video camera to film the other party, without her consent, which resulted in damages of $15,000.00 (Patel v Sheth).

Courts have also acknowledged that “hacking” an email account (Ludmer v Ludmer); disclosing financial information to a third party (Rosati v Cornelio et al); and recording telephone calls without the other party’s consent (BDC v BJB) may meet the test.  In the case of BDC, the recorded phone calls were between a child and a former spouse.

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