[66] The Court of Appeal adopted the definition of intrusion on
seclusion set out in the Restatement (Second) of Torts (2010):
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 rea-
sonable person.
[67] To establish an intrusion on seclusion, the Court of Appeal
held that the plaintiff must prove that (1) the defendant’s conduct was intentional or reckless; (2) the defendant invaded, without lawful justification, the plaintiff’s private affairs or concerns;
and (3) a reasonable person would regard the invasion as highly
offensive causing distress, humiliation or anguish.23 Proof of economic lass was not required, but, given the intangible nature of
the interest protected, damages for intrusion upon seclusion will
ordinarily only attract modest damages.
[68] The Court of Appeal declined to decide whether the other
breach of privacy torts described by Prosser should be recognized
in Ontario. As Sharpe J.A. explained [at para. 21]:
[A]s a court of law, we should restrict ourselves to the particular issues posed
by the facts of the case before us and not attempt to decide more than is
strictly necessary to decide that case. A cause of action of any wider breadth
would not only over-reach what is necessary to resolve this case, but could
also amount to an unmanageable legal proposition that would, as Prosser
warned, breed confusion and uncertainty.
[69] Despite this, the principles relied upon by the court in
Jones v. Tsige would apply equally to other potential causes of
action for breach of privacy.
[70] First, in Jones v. Tsige the Court of Appeal emphasized
that privacy interests underlie various rights protected under the
Canadian Charter of Rights and Freedoms. While the Charter
does not apply to private disputes, courts should develop the
common law in a manner consistent with Charter values.24
[71] Second, the Court of Appeal rejected the argument that
recognizing a tort for invasion of privacy would interfere with
regimes established through existing federal and provincial legis-
lation. As noted by Sharpe J.A., “invasion of privacy” is not
defined in any provincial privacy act. As a result,
The courts in provinces with a statutory tort are left with more or less the
same task as courts in provinces without such statutes . . . [E]xisting provin-
cial legislation indicates that when the legislatures have acted, they have
_____________
23 Jones v. Tsige, at para. 71.
24 Jones v. Tsige, at para. 46.
