‘Privacy, Corrective Justice and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario’ by Thomas D C Bennett in (2013) 59
McGill Law Journal 49 [
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Elaboration of the law relating to invasion of privacy has been proceeding apace in the common law world in recent years (for example, in England and in New Zealand). As such, we might see recent development in this area of the law in Canada as an instance of playing catch-up. Such a view would, however, be wide of the mark. For when I scrutinize the recent Canadian case of Jones v. Tsige, I find that it brings into focus issues that require more judicial and academic work across the common law world (and indeed beyond). These issues are the process of judicial elabo- ration of the law (“incrementalism” to common lawyers), the moral impulses at work in the law, and the relevance of imagination to its operations. I will examine each of these matters in detail below. And, at the conclusion of this essay, I will use them to point up a contrasting tendency for judges and, in particular, the English academic community to get bogged down in matters of technical detail and to lose sight of these large issues that invest this branch of the law with politico-legal significance.
Jones is particularly worthy of study because it represents a significant incremental step for the common law: the recognition of a novel head of tortious liability. That this has taken place in order to secure protection for a controversial interest, privacy, only adds to the case’s importance.
By way of comparison, in England a (more limited, information- focused) tort of “misuse of private information” has been recognized in recent years, and the broad academic consensus is that this English tort is the result of the incremental development of the older equitable doctrine of confidence. The “intrusion upon seclusion” tort recognized in Jones, however, has developed very differently; it has not evolved from a pre- existing cause of action. Key to this is the fact that in Jones, Justice Robert J. Sharpe (who gives the lead judgment) makes an appeal to “Charter values” as a justification for extending the scope of tortious liability to cover intrusions upon the plaintiff’s privacy. Broadly speaking, this idea bears significant similarity to the notion of “indirect horizontality” under the Human Rights Act in the U.K. But Jones is not simply a matter of the indirect horizontal application of the Canadian Charter of Rights and Freedoms; that horizontality is supplemented by an appeal to another overarching principle which underpins tort law itself: corrective justice. I will explore the role that corrective justice plays in the judgment and will also seek to contribute to a wider academic debate on the position that this concept occupies in tort law more generally.
We will see in Justice Sharpe’s judgment in Jones a particular imaginative process that can be analyzed by reference to a notion of “legal imagination”. Justice Sharpe’s exercise of the “legal imagination” leads him to identify and make use of a particular incremental method to achieve the development he seeks. We will see that he appeals to an established principle underpinning tort law generally: its “protective purpose”. I will also note the limits of the (Canadian legal) system in which Justice Sharpe is exercising imagination and delineate the edges of the “space” within which he is operating. Justice Sharpe recognizes that, in order to deflect the most vehement criticism that might be levelled against his judgment, he must point to at least some doctrinal evidence that tort law may protect against intrusions upon privacy. It is noteworthy in this respect that he states that the court has “recognized” rather than created the new tort. Moreover, his assertion that the court should develop the common law in accordance with Charter values pays heed to the notion that higher-order constitutional principles ought to be reflected in burgeoning tortious development while recognizing that the limits of this are to be set by higher courts (in this instance, the Supreme Court of Canada). Finally, I will consider the incremental nature of the development which Justice Sharpe pursues and, ultimately, achieves.
The essay concludes that this development of tort law may properly be classed as an incremental step since it fits two academically-recognized and judicially-accepted models of incrementalism. As such, I will demonstrate how Justice Sharpe’s judgment in Jones may be defended against accusations that he has stepped beyond the role of the courts and intrud- ed into the realm of the legislature.
It is also worth mentioning at the outset one aspect of the case with which this paper is not concerned. This is the measure of damages that the court ultimately awarded the plaintiff in Jones and the method by which Justice Sharpe came to his decision on quantum. While it is doubtless an important aspect of the case in its own right, this essay does not intend to engage with it. The reason for this is that the essay focuses on the way in which liability may be established for a novel tort, as opposed to discussing the remedies that may then become available.
