Is Intrusion Upon Seclusion the Same As Breach of Privacy?

What Is Known As Intrusion Upon Seclusion Is a Type of Breach of Privacy Whereas the Law Recognizes Four Distinct Sub-Torts Within the Law of Breach of Privacy.

Understanding When Intrusion Upon Seclusion Constitutes As Tortious Conduct

Lawsuit Document Peeping Tom conduct is reasonably understood as an intrusion upon seclusion, meaning interference with the right of privacy other people; however, many other forms of intrusive behaviour can also constitute as a tortious breach of privacy in what is more accurately known in law as an intrusion upon seclusion.

The Law

The right to sue for breach of privacy was highly debated until the precedent setting Court of Appeal case known as Jones v. Tsige, 2012 ONCA 32 in which the question was finally put to rest with a confirmation that indeed, in Ontario, there is a right to sue for breach of privacy, and specifically for the type of breach of privacy known as intrusion upon seclusion.  Specifically, the Court of Appeal said:

[70] 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.

In the Jones case, the Defendant, Tsige, improperly accessed and viewed the banking records of Jones; however, many various forms of conduct have resulted in a determination of intrusion upon seclusion and therefrom a tortious liability finding.  For example, in addition to constituting the tort of nuisance, the shining of spotlights and pointing of cameras was found as an invasion of privacy, meaning intrusion upon seclusion, within the case of Cecchin v. Lander, 2019 CanLII 131883 whereas it was said:

90.  Invasion of privacy and more particularly the tort of intrusion upon seclusion was recognized in Jones v. Tsige, supra.  At para. 70 of the reasons of Sharpe J.A. the elements of the tort were formulated as follows:

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.

91.  A person’s residence represents a fundamentally important private and personal space.  It is a home and a place of seclusion from the world at large.  Having surveillance cameras and floodlights aimed at one’s residence is a clear and material intrusion into that space, particularly where, as I find in this case, this was done as part of a deliberate campaign of harassment.  I conclude that the torts of invasion of privacy and nuisance are made out.  The particular invasion would be highly offensive to a reasonable person; in the language of nuisance it would be unreasonable to require the plaintiffs to suffer the interference without compensation.

92.  In September 2018 the defendants had two new surveillance cameras installed at 920.  They already had a number of cameras installed but added two new ones.  Both were installed at the eavestrough level of the second story of 920 and well above the top of the plaintiffs’ new wooden fence separating the two properties.  Both are plainly shown in the plaintiffs’ photographic evidence to be pointed at the plaintiffs’ property (see Exhibit 2, Tab 19).  Photographs taken from the plaintiffs’ property show the defendants’ new surveillance cameras pointing straight at the photographer.

93.  I reject Mr. Bradbury’s evidence that the surveillance cameras did not point at the plaintiffs’ property.  His evidence appeared to ignore the width of perspective captured by these cameras.  I reject Ms. Lander’s evidence that she had nothing to do with their installation.  It was her house and there is no suggestion that they were installed over her objection or without her consent.  I find the installer’s report (Exhibit 32) unhelpful as it focusses on the cameras’ positions at the moment of installation.  It fails to explain how cameras pointed directly at the plaintiffs’ property would somehow not capture that property.

94.  On the other hand I accept the evidence of the plaintiffs’ surveillance expert Mr. Jon Kuiper concerning these cameras and the extent of the areas they capture (Exhibit 3, Tab 9, last two pages).  The defendants’ rear camera pointed at the plaintiffs’ property would capture essentially all of their backyard and the side of their house facing 920.  The front camera would capture substantially all of the plaintiffs’ front yard and part of the front side of their house facing 920.

95.  Photographic evidence plainly shows both Mr. Bradbury and Ms. Lander pointing their mobile phones at the plaintiffs’ property on various occasions as if taking photographs or video.  Their stance is aggressive.  They are often right at the property line and essentially “in the faces” of the plaintiffs and/or TNT personnel as the case may be.  On at least one occasion they enlisted the participation of a worker to join in their camera game (see Exhibit 2, Tabs 18-A, 18-F (lower)).  I find that the defendants were using video recording devices, including the surveillance cameras, as weapons in their retaliation campaign against the plaintiffs.

96.  I accept that the surveillance cameras are pointed so that they capture the plaintiffs’ bedroom window and washroom window in addition to the entirety of the backyard including the patio area.

97.  I reject the defence submissions that these cameras were somehow installed at the suggestion of the police.  First it is impossible to accept that any police officer would suggest installing surveillance cameras pointed at the neighbours’ property.  Second and in any event the police have no jurisdiction with respect to civil liability.  In this case the surveillance cameras amounted to weaponized technology which crossed the lines set by the law of nuisance and invasion of privacy.  Any suggestion that the defendants’ civil liability could somehow by immunized through police action or involvement makes no legal sense.

98.  Mr. Cecchin and Ms. Cecchin both testified that eventually, in response to a written demand through counsel, the cameras were redirected as were the floodlights.  The floodlights installed by the defendants were motion-activated and before they were redirected shone into the plaintiffs’ bedroom and bathroom windows (Exhibit 2, Tab 15).

99.  I accept that the surveillance cameras and floodlights constituted an unreasonable intrusion and interference with the plaintiffs’ residential property and privacy.  Moreover I accept that the installation of those devices was intended to have that effect and form part and parcel of Mr. Bradbury’s vindictive self-help campaign in which Ms. Lander joined as a willing full participant.  Accordingly I find the defendants jointly liable for invasion of privacy and nuisance based on the surveillance cameras and floodlights.

Another interesting example of intrusion upon seclusion, or invasion of privacy, is the case of Vanderveen v. Waterbridge Media Inc., 2017 CanLII 77435 which involved the filming of Ms. Vanderveen, who was out for a jog, without the knowledge or consent of Ms. Vanderveen, and then the publication of a promotional video that contained a clip with the jogging of Ms. Vanderveen.  In this case, it was said:

[16]  Applying the above legal principles to the facts of this case, I have no hesitation in concluding that in capturing the image of Mme Vanderveen and publishing it in a commercial video for Bridgeport, the defendant committed the tort of intrusion upon seclusion.  There can be no doubt, on the evidence before me, that the defendant’s conduct in taking her picture was intentional; that was admitted.  There existed no legal justification for taking her image or filming her running.  I find that a reasonable person, this legally fictitious person who plays an important role in legal determinations, would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her.

Summary Comment

As per the Jones case, the tort of intrusion upon seclusion is recognized as a sub-tort of the tort of breach of privacy and thereby provides the right to pursue compensation via legal action against those who improperly intrude upon the seclusion rights of others.  The nature of incidents that may give rise to an intrusion upon seclusion are varied and, as per the Jones case, may involve improperly accessing private information such as banking records, among other conduct concerns.

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Intrusion Upon Seclusion

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