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Torts - Privacy

Ludmer v Ludmer (Ont CA, 2014)

In this case the Court of Appeal commented as follows on the tort of invasion of privacy:
[47] This Court has recognized the tort of invasion of privacy – sometimes referred to as “intrusion upon seclusion” – in Jones v. Tsige, 2012 ONCA 32 (CanLII), 346 D.L.R. (4th) 34. Sharpe J.A. identified the elements of the cause of action at para. 71 of his reasons:
The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
[48] In this respect, he adopted, at para. 70 of his reasons, the essential elements of the action for intrusion upon seclusion from the Restatement (Second) of Torts § 652B (2010), which states:
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 the other person.
[49] The trial judge correctly identified the elements of the cause of action and he found as a fact (a) that Mr. Spira had neither “hacked into” nor had access to Mr. Ludmer’s email account; (b) that Mr. Spira had never, himself, intercepted any of Mr. Ludmer’s emails; and (c) that Mr. Spira had never read any of the emails. The trial judge concluded that the simple fact that Mr. Spira had forwarded certain of these emails to Ms. Ludmer’s lawyer at her request was not sufficient to ground a claim for invasion of privacy. He found that it was Ms. Ludmer, not Mr. Spira, who had intentionally intruded upon Mr. Ludmer’s private affairs, and that whatever assistance Mr. Spira provided was not for purpose of assisting in her intrusion upon those private affairs.
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