In a landmark decision, the Ontario Court of Appeal has clarified that a cause of action for invasion of privacy exists in Ontario, namely, intrusion upon seclusion. 

Prior to the Court’s decision in Jones v. Tsige (2012), 108 O.R. (3d) 241, it was generally believed that no cause of action existed in Ontario for invasion of one’s privacy.  Instead, litigants typically resorted to related claims such as nuisance, trespass, defamation, misappropriation of personality, among others.  The Court of Appeal noted in Jones that, up until its decision, Ontario had at the very least remained open to the proposition that a tort action will lie for an intrusion upon seclusion.  Now it has been clarified that such a tort does indeed exist.

The Court of Appeal held that by recognizing a cause of action for intrusion upon seclusion, an incremental step was being taken by the Court consistent with its role in developing the common law in a manner consistent with the changing needs of society.

Essentially, the elements of the cause of action are met where a defendant intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, provided the invasion would be highly offensive to a reasonable person. 

The element of intent includes recklessness, and the invasion must be without lawful justification.  In order for the invasion to be highly offensive to a reasonable person, it appears that the conduct must cause distress, humiliation or anguish.

Given the intangible nature of the interest protected by the claim, the Court stated that damages will ordinarily be measured by a modest conventional sum, especially where the plaintiff has suffered no pecuniary loss.

A flood of new cases may be feared by some as a result of the new tort.  However, given the general limit on damages, it is expected that claims for intrusion upon seclusion will typically be pleaded as derivative claims in conjunction with related causes of action for which higher measures of damages are available. 

It will be interesting to see how this tort evolves in the coming years.

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When is it fair to compel a defendant to produce surveillance evidence – before or after a defence medical examination?

In Aherne v. Chang, [2011] ONSC 3846 (Ont. Sup. Ct.), the defendants argued that they were not obligated to disclose their surveillance evidence until the moment they produced their defence medical report.

In keeping with the principle that expert witnesses are to take a non-partisan role in proceedings, Justice Perell upheld the decision of Master Short and found that the privilege associated with surveillance evidence was waived upon it being disclosed to the medical practitioner who conducted the defence medical examination.

Such disclosure was held to be supported by the existing law and deemed to be “procedurally fair, efficient and productive to the settlement or adjudication of the lawsuit”.

Early disclosure was also found to be consistent with the policy of the modern Rules of Civil Procedure, and to reduce the risk of ambush and surprise being utilized as tactical weapons in the adversarial system of adjudication.

It is hoped that Justice Perell’s decision will lead to personal injury disputes being resolved faster and in a more expeditious manner.

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Shortly after January 1, 2012, it is expected that the Courts will be flooded with motions seeking to set aside deemed dismissal Orders.

It may come to the surprise of many litigators that on January 1, 2012, actions that were commenced before January 1, 2010 will be deemed to be dismissed as abandoned if no steps are taken in the action between January 1, 2010 and December 31, 2011.  Such dismissals will occur under Rule 48.15(6) of the Rules of Civil Procedure.

Exceptions apply where, for instance, the Plaintiff is under disability or the action is governed by Rule 76 or Rule 77 (or Rule 78 immediately before January 1, 2010).

The deemed dismissal shall be treated as if it were an Order of the Registrar. Such Orders are not to be taken lightly and will not necessarily be set aside, even where the Consent of all parties is filed.

If you are planning to book a motion before a Master in the New Year, book it early, and expect to face longer than usual waiting times.

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On May 12, 2011, the Better Tomorrow for Ontario Act (Budget Measures), 2011, S.O. 2011, c. 9 (the “Act”) received Royal Assent.

Schedule 14 to that Act contains a number of revisions to the Estate Administration Tax Act, 1998, S. O. 1998, c. 34, Sch. (“EATA”), which revisions came into force upon the Act receiving Royal Assent.

Beginning on January 1, 2013, applicants for Certificates of Appointment of Estate Trustee (with or without a Will) will need to deliver to the Minister of Revenue such information about the deceased person about whom the application is subject as may be prescribed by the Minister of Finance. To date, no regulations have been enacted, and it remains to be seen what information the Minister might seek.

Additionally, the Minister of Revenue now has the power to assess an estate in respect of its tax payable under the EATA. Assessment or reassessment may occur at any time within four years after the day the tax first became payable. However, the Minister may also assess or reassess an estate’s tax under the EATA if the Minister establishes that any person failed to provide the prescribed information required by the Minister of Finance, or the Minister establishes that any person made a misrepresentation that is attributable to neglect, carelessness or wilful default, or has committed any fraud in supplying any information regarding an estate or in omitting to disclose any information regarding the estate.

The Minister of Revenue may now appoint one or more inspectors who are authorized to exercise any of the powers and perform any of the duties of a person authorized by the Minister of Finance under subsection 31(1) of the Retail Sales Tax Act, R.S.O. 1990, c. R.31 for any purpose relating to the administration and enforcement of the EATA.

The Act also imposes an obligation upon estate trustees to keep at their residence or place of business records or books of account in the form and containing the information that will enable the accurate determination of tax payable under the EATA. Offences for non-compliance with the Act have been created, which include fines ranging between $1,000.00 and twice the amount of tax payable by the estate, imprisonment for under two years, or both.

It seems apparent that the changes to the EATA are meant to address the under-reporting of Estate Administration Tax, both before and after Certificates of Appointment of Estate Trustee are issued.

It will be interesting to see if the Act will have any chilling effect, and whether Estate Trustees will renounce probate more frequently. While tomorrow may be better for Ontario under the new Act, tomorrow is clearly not better for Estate Trustees.

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If one does talk, one should expect his or her statement to be admissible in evidence at trial.  In some instances, this may even occur where one has requested, and been denied, the advice of legal counsel (despite the right, pursuant to section section 10(b) of the Canadian Charter of Rights and Freedoms,  upon arrest or detention to retain and instruct counsel without delay and to be informed of that right).   Speaking with counsel for as little as six minutes has been held, at least within the facts of the Supreme Court of Canada case of R. v. Sinclair, 2010 SCC 35, to constitute sufficent legal advice to cause the accused’s subsequent statements made to the police admissible in evidence. 

So, as quoted from the Ontario Criminal Lawyers’ Association at paragraph 86 of the dissenting reasons in R. v. Sinclair ,  ”keep your mouth shut”.  

Sometimes the simplest advice is the best advice (unless it is only six minutes long). 

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