Jones v. Tsige; The Canadian Civil Liberties Association et al., Moving Parties/Proposed Intervenors [Indexed as: Jones v. Tsige]

106 O.R. (3d) 721

Court of Appeal for Ontario,

Watt J.A. (in Chambers)

August 25, 2011

Civil procedure -- Parties -- Intervenors -- Appeal in private litigation raising issue of existence of common law tort of invasion of privacy -- Moving parties denied leave to intervene as friends of court -- Appeal not involving conflict between individual and state -- Moving parties not having related expertise -- Permitting interventions would cause injustice to defendant as she would have to file new or revised factum and hearing of appeal would probably have to be adjourned -- Moving parties offering nothing more than repetition of plaintiff's arguments.

The parties both worked for a bank. The defendant accessed confidential banking information about the plaintiff without any lawful authority. The plaintiff sued for invasion of privacy and breach of fiduciary duty. The defendant's motion for summary judgment dismissing the action was granted on the grounds that the common law does not recognize a tort of invasion of privacy and there was no fiduciary relationship between the parties. The plaintiff appealed. The moving parties sought leave to intervene as friends of the court.

Held, the motions should be dismissed.

The appeal arose out of a private dispute between two parties. It did not involve the use of some new or emerging technology and its implications on privacy, nor the interest of a defined group of individuals in keeping information about their health to themselves. Nor did it have to do with a conflict between the state and the individual. The expertise of one of the moving parties was far removed from the issues in the appeal, and the expertise of the other moving party on issues of privacy tended to involve conflicts between the state and individuals. The interventions would cause an injustice to the defendant. The hearing of the appeal had been scheduled. To permit the interventions, which would support the plaintiff's position, would require the defendant to file a new or revised factum and would require revision of the times assigned for oral argument. The hearing would probably have to be adjourned. The moving parties had nothing more to offer than a repetition of the plaintiff's arguments. That was not enough to grant them leave to intervene as friends of the court.

MOTIONS for leave to intervene as a friend of the court in an appeal taken from a decision of Whitaker J., [2011] O.J. No. 1273, 2011 ONSC 1475 (S.C.J.).

Cases referred to

1162994 Ontario Inc. v. Bakker, 2004 60019 (ON CA), [2004] O.J. No. 816, 184 O.A.C. 157, 129 A.C.W.S. (3d) 286 (C.A.); Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 4382 (ON CA), [2001] O.J. No. 2768, 147 O.A.C. 355, 9 C.P.C. (5th) 218, 106 A.C.W.S. (3d) 622 (C.A.); Childs v. Desormeaux (2003), 2003 47870 (ON CA), 67 O.R. (3d) 385, [2003] O.J. No. 3800, 231 D.L.R. (4th) 311, 44 C.P.C. (5th) 5, 125 A.C.W.S. (3d) 970 (C.A.); Fairview Donut Inc. v. TDL Group Inc., 2008 60983 (ON SC), [2008] O.J. No. 4720, 172 A.C.W.S. (3d) 609 (S.C.J.); Issasi v. Rosenzweig, [2011] O.J. No. 1085, 2011 ONCA 198 (C.A.); Oakwell Engineering Ltd. v. EnerNorth Industries Inc., [2006] O.J. No. 1942, 148 A.C.W.S. (3d) 39 (C.A.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378, 46 Admin. L.R. 1, 45 C.P.C. (2d) 1, 2 C.R.R. (2d) 327, 22 A.C.W.S. (3d) 292 (C.A.); R. v. M. (A.), [2005] O.J. No. 4017, 66 W.C.B. (2d) 642 (C.A.); Tadros v. Peel Regional Police Service, [2008] O.J. No. 4599, 2008 ONCA 775, 172 A.C.W.S. (3d) 551 (C.A.) [page722]

Rule and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 13.02, 13.03(2)

Counsel

Christopher Du Vernet and Carlin McCoogan, for appellant Jones.

Michael Power, for moving party/proposed intervenors Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.

Matthew I. Milne-Smith, for moving party/proposed intervenor the Canadian Civil Liberties Association (CCLA).

Alex Cameron and Nicole Melanson, for respondent.

[1] WATT J.A.: -- Sandra Jones and Winnie Tsige worked at different branches and in different jobs at BMO. For almost three years, Ms. Tsige helped herself to personal banking information about Ms. Jones. On none of the 174 occasions on which Ms. Tsige accessed this information did Ms. Jones know what Ms. Tsige was doing, much less consent to it. And Ms. Tsige knew full well that she had no authority to do what she was doing.

[2] Bank investigators found out about Ms. Tsige's unauthorized activities. Ms. Tsige was disciplined by the bank, but not terminated from her job.

[3] Sandra Jones sued Winnie Tsige. Ms. Jones claimed damages for invasion of privacy and breach of fiduciary duty. Ms. Jones also sought punitive and exemplary damages.

[4] Both Jones and Tsige moved for summary judgment. Ms. Jones failed. Ms. Tsige succeeded. The motion judge concluded that the common law does not recognize a tort of invasion of privacy. He also decided that there was no fiduciary relationship between the parties. In the result, the motion judge dismissed Ms. Jones' action.

[5] Sandra Jones has appealed the motion judge's decision to this court. She has perfected her appeal which is scheduled for hearing on September 29, 2011. Times for oral argument have been assigned to the parties.

The Motions

[6] The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Aid Clinic Ontario ("Legal Network/HALCO") and the Canadian Civil Liberties Association ("CCLA") seek leave to intervene as friends of the court on the hearing of the appeal. [page723] The appellant, Jones, supports both proposed interventions. The respondent, Tsige, opposes.

[7] Both proposed intervenors seek leave to file a factum and to participate in oral argument. CCLA is content with the extant record, but the Legal Network/HALCO wants to augment the current record by filing a survey report and HIV/AIDS Attitudinal Tracking Survey 2006.

[8] Under rule 13.03(2) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], the associate chief justice has designated me to hear the motions for intervention.

The Positions of the Parties

[9] For the CCLA, Mr. Milne-Smith acknowledges that this case involves private litigation rather than the conflicts between individuals and the state that is the traditional fare of the CCLA. But intervention is not limited, he submits, to cases that have a constitutional dimension or a state versus individual controversy. This case, which examines whether the common law recognizes the tort of invasion of privacy, extends well beyond the confines of the specific dispute between Jones and Tsige.

[10] Mr. Milne-Smith says that the CCLA has an abiding interest and experience in privacy issues and includes amongst its experience interventions in private litigation involving defamation.

[11] The focus of the submissions that CCLA proposes to make will be on why the tort of invasion of privacy should be recognized. The CCLA will point out the legislative gaps and common law shortfall and urge creation or recognition of the tort from a different perspective than the appellant.

[12] Mr. Milne-Smith denies that the respondent will suffer any prejudice from the proposed intervention. To respond to another or different argument is not prejudice, otherwise no interventions would ever be permitted. The record remains intact and the respondent has adduced no evidence of any added costs if the intervention were permitted.

[13] For the Legal Network/HALCO, Mr. Power emphasizes that the issues on this appeal extend well beyond the private dispute between the appellant and the respondent. Whether the common law does or should take cognizance of the tort of invasion of privacy is an issue of great public importance. It is especially so and of abiding significance to vulnerable groups such as those for whom the Legal Network/HALCO advocate.

[14] The Legal Network/HALCO underscores its expertise on privacy issues and urges its intervention to broaden the perspective that the court will have in resolving the core issue on the [page724] appeal. Neither original party will be prejudiced by the proposed intervention or the introduction of the survey as further evidence.

[15] The appellant supports both proposed interventions. Mr. Du Vernet says that both proposed intervenors have the necessary expertise to be of significant assistance to the panel hearing the appeal. Further, each, but especially the CCLA, can make submissions about the influence of technology on privacy interests and the need to provide a mechanism to protect privacy against technological encroachment. Submissions like this will help the court to decide whether to recognize a tort of invasion of privacy and to define or shape its contours.

[16] The respondent provides the lone dissenting voice about the proposed interventions. Mr. Cameron acknowledges that the legal issue raised on appeal, whether the court should recognize a tort of invasion of privacy, transcends the boundaries of the dispute between the appellant and respondent. But that is something that could be said about many cases, thus the argument advanced on behalf of the proposed intervenors proves too much. The authority to permit intervention is discretionary. To permit intervention on the sole basis that the decision may create or reject a new head of tort liability would be to substitute a fixed rule for a malleable discretion.

[17] Mr. Cameron says that neither proposed intervenor has met the requirements for intervention. Neither filed a draft factum to elucidate their proposed submissions, and their oral argument on the motion reveals simply a repetition of the submissions of the appellant. The implications of new technologies on personal privacy have nothing to do with this case, nor will submissions about their impact assist the court in deciding on the existence or scope of the tort.

[18] The respondent points out that the expertise of the CCLA has to do with privacy in a different context: conflicts between individuals and the state. The issue in this case does not arise in the criminal law context, nor does it have national implications. The courts of each province must determine whether the tort of invasion of privacy should be recognized in the absence of any statutory enactments that occupy the field.

[19] Mr. Cameron further submits that to permit either or both interventions would prejudice the respondent. The appeal has been perfected. The date and times for oral argument have been assigned. To permit intervention would require the respondent to file a new factum to respond to the intervenors' arguments. The time assigned for oral argument would likely require [page725] an adjournment of the hearing, thus add to the respondent's costs and ennui about the conclusion of the litigation.

The Governing Principles

[20] The principles that govern leave to intervene are largely uncontroversial.

[21] Rule 13.03(2), the enabling authority, permits intervention as an added party or as a friend of the court, but says nothing about the basis upon which leave to intervene may be granted. Under rule 13.02, intervention is granted for the purpose of rendering assistance to the court by way of argument.

[22] In general terms, the relevant factors of which account is to be taken in deciding whether to grant leave to intervene are these: (i) the nature of the case; (ii) the issues that arise in the case; and (iii) the likelihood that the proposed intervenor will be able to make a useful contribution to the resolution of the appeal without injustice to the immediate parties. See Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378 (C.A.), at p. 167 O.R.; Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 4382 (ON CA), [2001] O.J. No. 2768, 147 O.A.C. 355 (C.A.), at para. 6.

[23] The nature of the case is an important factor. Where the litigation in which the intervention is sought is a private dispute, rather than a public prosecution pitting an individual against the state, the standard to be met by the proposed intervenor is more onerous or more stringently applied: Authorson, at paras. 8 and 9; 1162994 Ontario Inc. v. Bakker, 2004 60019 (ON CA), [2004] O.J. No. 816, 184 O.A.C. 157 (C.A.), at para. 5. This more onerous threshold may be softened somewhat where issues of public policy arise: Childs v. Desormeaux (2003), 2003 47870 (ON CA), 67 O.R. (3d) 385, [2003] O.J. No. 3800 (C.A.), at paras. 3 and 10.

[24] The issues that arise in cases involving private litigation fall along a continuum. Some have no implications beyond their idiosyncratic facts and occupy the interest of none save the immediate parties. Others transcend the dispute between the immediate parties and have broader implications, for example, the construction of a legislative enactment or the interpretation of the common law: Bakker, at paras. 5-6; Childs, at para. 10. [page726]

[25] Of no trifling influence in the decision about intervention is the likelihood that the proposed intervention will be of assistance to the court in the resolution of the appeal. The likelihood of assistance is a function of many variables, including, but not only, the experience and expertise of the proposed intervenor: Authorson, at para. 18; Issasi v. Rosenzweig, 2011 ONCA 198, [2011] O.J. No. 1085, 291 ONCA 198 (C.A.), at para. 18; R. v. M. (A.), [2005] O.J. No. 4017, 66 W.C.B. (2d) 642 (C.A.), at para. 3; and Tadros v. Peel Regional Police Service, [2008] O.J. No. 4599, 2008 ONCA 775 (C.A.), at para. 3.

[26] To permit intervention in private litigation may cause injustice to the original litigants. Injustice may result from the timing of the proposed intervention: Tadros, at para. 9; Oakwell Engineering Ltd. v. EnerNorth Industries Inc., [2006] O.J. No. 1942, 148 A.C.W.S. (3d) 39 (C.A.), at para. 13. Injustice may also ensue in cases in which the proposed intervenor seeks to augment the record established by the parties to the appeal, rather than to accept the record as established in accordance with the general rule: Tadros, at paras. 8 and 10; Bakker, at para. 9; Childs, at para. 18; Issasi, at para. 21; and M. (A.), at para. 4.

[27] In this case, as in many, the proposed intervenors will make submissions that align with those advanced by a party.

[28] It should scarcely surprise, indeed it would seem almost the very essence of intervention, that the position to be advanced by a proposed intervenor would tend to support that of one of the original litigants and oppose that of the other. While we cannot ignore the potential of injustice to an original litigant by an accumulation of intervenors, neither should we be quick to dispatch those with some value to add for this reason alone. Assistance from intervenors can come in assorted shades and from different perspectives. The likelihood of useful contribution should exert the greater influence: Childs, at paras. 13-14; Oakwell, at para. 9.

[29] In the end, a proposed intervenor must have more to offer than mere repetition of the position advanced by a party. The "me too" intervention provides no assistance: Peel, at para. 8; Oakwell, at para. 11; and Fairview Donut Inc. v. TDL Group Inc., 2008 60983 (ON SC), [2008] O.J. No. 4720, 172 A.C.W.S. (3d) 609 (S.C.J.), at para. 5.

The Principles Applied

[30] For reasons that I will develop, I would not grant either proposed intervenor leave to intervene as a friend of the court.

[31] First, this appeal arises out of a private dispute between two parties. The respondent acquired confidential banking information about the appellant without any lawful authority. [page727] The appellant sued for invasion of privacy and breach of fiduciary relationship. The trial judge granted the respondent summary judgment and dismissed the action. The judge decided that there was no tort of invasion of privacy and that no fiduciary relationship existed between the appellant and respondent.

[32] The appeal in this case does not involve the use of some new or emerging technology and its implications on the privacy of others, nor the interest of a defined group of individuals in keeping to themselves information about their health. Nor does it have to do with a conflict between the state and the individual and a determination of the limits that should be placed on state activities to avoid incursions into the personal, territorial or informational privacy of individuals.

[33] What transcends the borders of this case is the trial judge's determination that the common law does not acknowledge or recognize a tort of invasion of privacy. The argument that the trial judge was wrong and that such a tort does exist is taken up by the appellant, who proposes to examine in oral argument: (i) the right to privacy; (ii) the foundations of the tort of invasion of privacy; (iii) the content of the common law tort of invasion of privacy; (iv) the failure of the legislature to enact an adequate legislative scheme to do the work of a tort; and (v) the nature of the remedy that should be fashioned for invasions of privacy.

[34] Second, the expertise of the Legal Network/HALCO seems far removed from the issues that fairly arise here. Indeed, this proposed intervenor seeks to augment the record by the introduction of a now dated survey about attitudes towards those suffering from HIV/Aids. It is unclear to me how such a survey would materially assist a panel of this court in determining whether Ontario law does or should recognize a discrete tort of invasion of privacy.

[35] The interest and expertise of the CCLA on issues of privacy is well documented. That said, its interventions tend to involve conflicts between the state and individuals, rather than disputes of the kind that arise here.

[36] Third, and most importantly, I'm not satisfied that to permit the interventions can be achieved without causing an injustice to the respondent. [page728]

[37] The appeal has been perfected and listed for argument. The times for oral argument have been assigned. To permit the interventions, which would support the appellant's position, would require the respondent to file a new or revised factum to answer the intervenors' submissions. Further, the times already assigned for oral argument would require revision to add time for oral argument by the intervenors, as well, to award the respondent more time to respond to those arguments. An adjournment of the hearing would seem almost inevitable.

[38] Neither proposed intervenor has filed a draft factum outlining the submissions it would make if permitted to intervene. In oral argument on the motion to intervene, each offered a brief glimpse of their positions. Nothing I heard then satisfied me that the intervenors would offer anything more than a repetition of or slightly different emphasis on the well-framed arguments of the appellant. In my view, this is not enough to grant the intervenors leave to intervene as friends of the court.

Disposition

[39] In the result, both motions to intervene are dismissed. This is not an appropriate case for an award of costs.

Motions dismissed.