THE EMPLOYERS' EDGE
Privacy Rights Expanded by the Ontario Court of Appeal – How the Decision Could Impact Ontario Workplaces
Earlier this week the Ontario Court of Appeal released its much-anticipated decision in Jones v. Tsige (“Jones”), recognizing, for the first time in Ontario, the tort of intrusion upon seclusion or breach of privacy. Until this recent decision, courts and arbitrators alike had agreed that in Ontario there was no independent tort of breach of privacy and employees needed to rely on legislation or specific employment contract/collective agreement language when seeking to protect limited privacy rights.
In Jones, Jones and Tsige were both employees of the Bank of Montreal (“BMO”). Tsige, in a relationship with Jones’ former husband, accessed Jones’ personal BMO bank records a whopping 174 times over four years to obtain information about her financial situation, without Jones’ knowledge. Jones became suspicious, filed a complaint with BMO and filed a civil law suit against Tsige, asserting that her privacy rights were violated.
The trial judge followed the consensus in Ontario and found that there is no free-standing right to privacy at common law. The Court of Appeal disagreed. It reasoned that the internet and digital technology have accelerated the pace of technological change exponentially, causing personal data to be particularly vulnerable. The common law, the Court found, is capable of evolving to respond to problems caused by the current expansion of technology and the exposure of personal data, and now is the right time to recognize an independent tort that would protect an individual’s right to privacy.
In making its determination, Ontario’s top court found that Tsige’s conduct was intentional or reckless, that she invaded Jones’ private affairs or concerns without lawful justification, and that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or aguish. Jones did not need to show that she suffered actual damages, as the tort is meant to protect hurt feelings, embarrassment or mental distress rather than economic interest. The Court held that damages will typically be “symbolic” or “moral”, and capped at $20,000.00. However, the Court left open the possibility of aggravated and punitive damages awards in exceptional cases. The Court awarded $10,000.00 in damages to Jones.
What does this mean for employers?
Although in its decision the Court stated that “recognizing this cause of action will not open the floodgates”, employers may see an increase in claims for “breach of privacy” where employers/co-workers have viewed private e-mails and other private documents sent on work computers using a work e-mail account, surveillance at and outside the workplace and the requirement of medical records by employers in certain situations until courts better define which actions fall within the parameters of the new tort. We also predict that “breaches of privacy” claims will make their way into wrongful dismissal actions in increasing numbers as a way of supporting a claim for punitive damages.
In our April 19, 2011 blog we summarized the Court of Appeal’s decision in R. Cole where the Court of Appeal considered an employee’s reasonable expectation of privacy when using an employer’s computer equipment for personal enjoyment. In that blog we recommended that employers have a clearly worded policy on technology use that confirms that employees should not have an expectation of privacy when using the employer’s computers, internet or work e-mail. The Jones decision emphasizes the importance of communicating expectations in written policies so that employees understand what they should and should not expect in terms of maintaining their privacy in the workplace. Employers who take steps to define the reasonable expectations in the workplace will not only be better equipped to defend against these claims in the future but will also be well positioned to argue that they should not be held vicariously liable for employees who breach policies by accessing or otherwise violating the privacy rights of other employees.
We would encourage you to contact one of the lawyers at CCP if you have any questions about this new tort and how it may affect your organization.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.