Simon's Legal Resources

Torts - Infringement of Privacy (4)

. Duka Property Management Inc. v. Estrada

In Duka Property Management Inc. v. Estrada (Div Ct, 2026) the Divisional Court partially allowed a multiple defendants' Small Claims Court appeal, that brought against joint and several orders for "$15,000.00 in damages for intrusion upon seclusion, $2,000 for trespass, and $10,000 in punitive damages, this against a "condominium corporation, the management company and the security company".

Here the court considers the tort of privacy ('intrusion upon seclusion'), particularly whether the tort only applies to 'informational privacy' (it doesn't):

F. The Tort of Intrusion Upon Seclusion

(i) Overview

[36] The appellants submit that the trial judge erred in his analysis of the tort of intrusion upon seclusion. The elements of the tort were identified in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at paras. 70-71 and require that the plaintiff establish 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.

[37] The appellants have not raised any issue with respect to the trial judge’s treatment of the first two of these elements, intentionality and unjustified invasion of privacy. However, they submit that the trial judge erred in his treatment of the third requirement, the requirement that the conduct would be viewed by a reasonable person as “highly offensive, causing distress, humiliation or anguish.”

[38] The trial judge concluded that the third element was met because the intrusion was “into an intimate or private space under the circumstances of a recent loss of the plaintiff’s fiancée.” The appellants submit that the third element requires proof that the intrusion involved “access to financial, health, sexual orientation, employment, diary or correspondence that a reasonable person would find offensive” and since there was no evidence of such access in this case, the trial judge’s conclusion that the third element was established was in error.

(ii) Types of Privacy Interests

[39] The tort of intrusion upon seclusion protects privacy interests: Jones v. Tsige, at para. 66. Privacy can take many forms which are often divided into three categories: personal privacy, informational privacy and territorial privacy. Personal privacy relates to a person’s bodily integrity: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 41; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 65; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 21. Informational privacy relates to an individual’s right to determine when, how, and to what extent information about them is communicated to others: R. v. Bykovets, 2024 SCC 6, 489 D.L.R. (4th) 1, at para. 29; Jones, at para. 41; Tessling, at para. 23. Territorial privacy relates to places where an individual has a reasonable expectation of privacy: Tessling, at para. 22.

(iii) Does the Tort Only Apply to Informational Privacy?

[40] The appellant’s position is that the tort of inclusion upon seclusion applies only to informational privacy, not personal or territorial privacy. I am not aware of any authority that specifically states this, but there is some support for the appellant’s position. Informational privacy is what was at issue in the vast majority of cases involving the tort of intrusion upon seclusion. There is also language in Jones v. Tsige that could be taken as suggesting that the tort relates only to informational privacy. For example, at para. 66, the court stated:

The case law, while certainly far from conclusive, supports the existence of such a cause of action. Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. Charter jurisprudence recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy that is distinct from personal and territorial privacy. The right to informational privacy closely tracks the same interest that would be protected by a cause of action for intrusion upon seclusion.

At para. 72, the court stated:

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.

[41] Despite this, I am not persuaded that the tort is limited in the way the appellants suggest for several reasons. First, informational privacy is what was at issue in Jones v. Tsige, so the language quoted above has to be considered in the context of the facts of the case. Other portions of the decision suggest that the tort applies to broader categories, in particular para. 70, where the court set out the elements of the tort:

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

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.

[42] As explained in Jones v. Tsige, at paras. 18-19, the Restatement definition is based on an article by Professor Prosser (W.L. Prosser, “Privacy” (1960), 48 Cal. L.R. 383), which is where the term “intrusion upon seclusion” comes from. Professor Prosser’s discussion includes cases involving territorial privacy: Prosser, at pp. 389-390.

[43] One of the cases cited in Jones v. Tsige in support of the court’s conclusion, at para. 25, that Canadian law seemed to be “drifting closer to the American model” is Roth v. Roth (1991), 1991 CanLII 7220 (ON CTGD), 4 O.R. (3d) 740 (Gen. Div.), where interference with the use of property (a cottage) was found to be actionable as an invasion of privacy.

[44] Second, tort cases decided under privacy legislation in other provinces have included territorial privacy. As noted in Jones v. Tsige, at para. 54, no precise definition of what constitutes an invasion of privacy is found in any of this legislation and its definition is left to be determined by the courts.

[45] For example, in Everett v. McAskill, 2014 MBQB 185, 309 Man. R. (3d) 178, at para. 33, aff’d 2015 MBCA 107, 323 Man. R. (2d) 164, the court appears to have concluded that the statutory tort created by s. 2(1) of the Manitoba Privacy Act, C.C.S.M., c. P125, would apply to an unlawful police search of a home, although the claim was dismissed because the police were found to have been acting lawfully. See also Mallett v. McCaskill, 2014 MBQB 227, 312 Man. R. (2d) 17, at paras. 63-66, aff’d 2016 MBCA 114.

[46] In Getajanc v. Brentwood College Assn., 2001 BCSC 822, 6 C.C.L.T. (3d) 261, tort liability pursuant to s.1(1) of the British Columbia Privacy Act, R.S.B.C. 1996, c. 373, was found to exist based on a school employee’s entry into a student’s home. In Foote v. Canada (Attorney General), 2011 BCSC 1062, 239 C.R.R. (2d) 367, at para. 52, the court concluded that the execution of a wrongly obtained search warrant could ground a tort claim.

[47] Third, and most importantly, there is no principled reason why the protection of territorial privacy is less deserving of protection than other types of privacy. One of the factors which animated the recognition of the tort in Jones v. Tsige was that privacy is important enough to be worthy of constitutional protection, and while the Charter does not apply to disputes between individuals, the common law should be developed in a manner consistent with Charter values: Jones v. Tsige, at paras. 39-46. Territorial privacy is just as worthy of constitutional protection as other types of privacy.

[48] I recognize that territorial privacy interests are already protected to some extent by the tort of trespass to property. While there may be some overlap between the torts of trespass to property and intrusion upon seclusion, they protect different interests. No invasion of privacy has to be proven to establish a trespass to property. As well, a claim for trespass can only be made by a person who is in possession of the property: Delavalle v. Acciavatti, 2024 ONSC 5137, 63 R.P.R. (6th) 282, at para. 61. However, a person may have a reasonable privacy interest in a place which is not in his or her possession, such as where the person is a guest: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 137.

[49] For these reasons, I am not persuaded that the trial judge erred in concluding that the third element of the tort of intrusion upon seclusion was established despite there being no invasion of informational privacy.

(iv) The Trial Judge’s Findings

[50] The trial judge’s conclusion that the intrusion would be highly offensive to a reasonable person is entitled to deference. The entry was into the respondent’s home, a place where he enjoyed a heightened expectation of privacy as “the home is where our most intimate and personal activities take place”: R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 45; Tessling, at para. 22.

[51] I reject the submission that the respondent had a lower privacy interest because he lived in a condominium rather than a house, or, as put by counsel for the Appellant Paragon at trial, “a man’s home is his castle unless he lives in a condominium.” The intrusion was into the respondent’s unit, not a common area of the building. His expectation of privacy was “as high as that of a resident of a single dwelling unit”: R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549, at para. 15.