Motions for summary judgment
[8] Jones proceeded under the simplified procedure of Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and moved for summary judgment. Tsige brought a cross-motion for summary judgment to dismiss the action.
[9] The motion judge found that Tsige did not owe Jones a fiduciary obligation and dismissed that claim. Jones has not appealed that finding.
[10] The motion judge then reviewed the jurisprudence concerning the existence of a tort of invasion of privacy. He observed that recent Superior Court decisions have refused to strike out such claims at the pleading stage and that some academic writing indicates that that the tort may exist.
[11] The motion judge concluded, however, that the statement of Cronk J.A. in Euteneier v. Lee 2005 CanLII 33024 (ON CA), (2005), 77 O.R. (3d) 621 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 516, at para. 63, is, in his words, “binding and dispositive of the question” of whether the tort of invasion of privacy exists at common law in Ontario. Euteneier concerned a lawsuit brought by a woman whose clothes were forcibly removed by police following her suicide attempt while she was detained in a holding cell. In considering whether the trial judge had accurately described the plaintiff’s privacy and dignity interests, Cronk J.A. observed, at para. 63, “[the plaintiff] properly conceded in oral argument before this court that there is no ‘free-standing’ right to dignity or privacy under the Charter or at common law.”
[12] The motion judge added that given the existence of privacy legislation protecting certain rights, any expansion of those rights should be dealt with by statute rather than common law.
[13] The motion judge dismissed Jones’ motion for summary judgment and granted the motion brought by Tsige. He rejected Jones’submission that costs should be denied on the ground