Fear Thy Neighbour: Examining the Tort of Intrusion upon Seclusion

In News by northernlaw

Having difficult neighbours can make living even in a mansion unbearable. Common neighbour disputes revolve around issues like trespassing and nuisance. These issues are clear and actionable and the remedies for them typically address visible or tangible harm. However, courts in Ontario have recognized a distinct legal remedy that does not require proof of actual harm—the tort of intrusion upon seclusion. This tort allows individuals to seek redress for unwarranted invasions of privacy, even without presenting evidence of measurable damage. Recognition of the tort of intrusion upon seclusion marks a significant step in the evolution of privacy law. 

What is intrusion upon seclusion?

The tort of intrusion upon seclusion is closely tied to the protection of informational. As recognized by Ontario Court of Appeal (ONSC) in Jones v. Tsige

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.[1]

For a successful cause of action under this tort one needs to prove –

  1. that the alleged conduct was intentional (which includes recklessness); and,
  2. invasion, without lawful justification, into your private affairs or concerns; and,
  3. that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.[2]

Detecting of intrusion upon seclusion

Evidence of intrusion upon your seclusion may include the following:

  1. Surveillance cameras, floodlights installed by neighbours pointing towards your property.
  2. Neighbours recording video of you while you are on your property.
  3. Opening or examining of your private mail including letters, online orders, and other deliveries.
  4. Incessant telephone calling.

To establish a claim of intrusion upon seclusion, it is essential that the intrusion occurs in a context where the individual or situation has a reasonable expectation of privacy.

A person’s residence is afforded a high expectation of privacy. However, the protection offered by this tort is not location specific. As a result, the reasonable expectation of privacy may not apply to all activities within one’s home and may not necessarily support a successful claim. If your neighbours record your actions directed at them, it may not constitute an intrusion, even if those actions occur within your home. Such actions even though conducted in your own home, do not have a reasonable expectation of privacy.

In Grech v. Scherrer, a video by the defendant captured the activities of the plaintiff while the plaintiff was in his kitchen. The gestures of the plaintiff were directed towards the defendant. The court held the activities of the plaintiff had no reasonable expectation of privacy and that a reasonable man will not regard the alleged invasion “highly offensive causing distress, humiliation or anguish”.[3] Hence, the tort of intrusion upon seclusion was not made out.

Similarly, privacy protection can extend to activities conducted outside the home, such as while using a mutual driveway, or accessing mails delivered outside the perimeter of your house. Location is not, therefore, the most conclusive factor in determining privacy. In Vanderveen v Waterbridge Media Inc., the court held that by capturing an image of the plaintiff without legal justification, the defendant committed the tort of intrusion upon seclusion. It is worth noting that the image was captured when the plaintiff was jogging in a public place without her consent.[4]

Remedy

One need not prove any pecuniary loss to bring a successful claim of intrusion upon seclusion. Damages have been awarded by the courts where there is no economic harm with the cap of $20,000.00 subject to aggravated and punitive damages.[5] Absence any pecuniary loss, the damages are meant to be symbolic, awarded to “vindicate rights or symbolize recognition of their infringement”.[6] Therefore, they are measured by modest sums.

Aggravated and punitive damages are usually discouraged and are awarded only in exceptional cases where the conduct of the defendant is high handed warranting specific deterrence, such as,

  1. repetitive and deliberate intrusion,
  2. lack of remorse on the defendant’s part,
  3. where the intrusion is intended to gain advantage in another pending court proceeding[7],

impact of intrusion on the plaintiff.

Pursuing a claim

Parties often struggle gathering evidence to prove intrusion by their neighbours without risking accusation of intrusion themselves, as such evidence is typically in the form of surreptitiously obtained photos or videos. Guidance from an experienced lawyer in such scenarios is crucial. At Northern Law LLP, we excel in resolving neighbour disputes. Our experienced team of lawyers understand the complexities of neighbour disputes and are committed to protecting your privacy and property rights. Call us today at (705) 222-0111 or send an email to info@northernlaw.ca.


[1] Jones v. Tsige, 2012 ONCA 32 (CanLII), para. 70.

[2] Jones v. Tsige, 2012 ONCA 32 (CanLII), para. 71.

[3] Grech v. Scherrer, 2018 ONSC 7206 (CanLII), para. 35.

[4] Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (ON SCSM)

[5] Chen v. Huang, 2024 ONSC 1173 (CanLII), para. 6.

[6] Jones v. Tsige, 2012 ONCA 32 (CanLII), para. 75.

[7] Chen v. Huang, 2024 ONSC 1173 (CanLII), para. 16.