BY: VALERIE DYE
Apart from the likelihood of criminal prosecution that can arise from snooping, spouses can also face a civil suit for accessing private information belonging to the other spouse. In the 2012 case of Jones v Tsige the Ontario Court of Appeal recognized the tort of ‘intrusion upon seclusion’. The elements of the tort are that: 1. The Defendant’s conduct must be intentional (or reckless) 2. The Defendant must have invaded the plaintiff’s private affairs without lawful justification and 3. A reasonable person would regard the invasion as being highly offensive causing distress, humiliation, and anguish.
In Jones v Tsige, the defendant Ms. Tsige was in a common-law relationship with Ms. Jones former husband. Both parties worked at the Bank of Montreal and Ms. Tsige had her personal bank account with the Bank of Montreal. During a period of four years, Ms. Tsige accessed Ms. Jones personal bank account and became privy to personal information such as account balances and deposits as well as Ms. Jones date of birth and home address. Ms. Tsige claimed that she wanted to know if her common law spouse was paying child support to Ms. Tsige and if so how much he was paying.
In a civil suit filed by Ms. Jones, the Ontario Court of Appeal recognized that Ms. Jones was entitled to receive compensation from Ms. Tsige under the new tort of inclusion upon seclusion. It is to be noted that Ms. Tsige did not make the information public once she became aware of it and as such one can become liable on this ground even though the information that is accessed is not shared with a third party.
Although the tort of inclusion upon intrusion does not relate specifically to family law it is important for persons involved in family law issues to be aware of this tort as there is often the tendency for spouses to snoop on each other especially when there are marital difficulties. There is nothing preventing one spouse from being liable for intruding upon the seclusion of another spouse. This intrusion can take the form of hacking into e-mails, hacking into bank accounts or any other method used to gain access to private information.
A distinction should be drawn between intentionally hacking into another person’s private affairs and the situation where the other person already has access to that information such as the password to the other person’s e-mail account. In Ludmer vs Ludmer 2013 ONSC the court found that the wife could not be liable for intrusion upon seclusion as she already had the husband’s password.
In terms of the amount of damages or compensation that would be awarded for breach of privacy under the tort of intrusion upon seclusion, the court mentioned in Jones vs Tsige that this could be up to $20,000. In exceptional circumstances, this could be higher if the court awards punitive damages.