Invasion of privacy

Ontario Court of Appeal ruling opens possibility of liability for employers that intrude into employees’ private lives

Stuart Rudner

By Stuart Rudner

For years, it has been an open question as to whether someone could be sued for invasion of privacy in Canada.

While many individuals assume they have a right to privacy, the courts had never clearly defined a legal cause of action arising for the infringement of an individual’s privacy. Instead, they relied upon traditional doctrines such as trespass. However, in the modern times of social media, smartphones and the ability to find and share information more easily than ever, many were waiting for the law to evolve. The Ontario Court of Appeal took a step forward in this regard last week in its decision in the case of Jones v. Tsige.

In that case, the parties were both employees of the same bank, though they did not know each other or work together. However, Winnie Tsige was in a romantic relationship with Sandra Jones’ former husband. She used her access as a bank employee in order to view Ms. Jones’ banking records at least 174 times over a period of about four years. The evidence showed Tsige really did not have a legitimate explanation for her actions.

Initially, a motions court judge held there was no tort of breach of privacy in Ontario, and the action must therefore fail. The matter was appealed to the Court of Appeal, which reversed that decision and awarded $10,000 based upon its recognition of a new tort, known as “intrusion upon seclusion.”

In this decision, the Court of Appeal identified four different types of torts relating to breach of privacy:

•intrusion upon a plaintiff’s seclusion or solitude, or into his private affairs

•public disclosure of embarrassing private facts about a plaintiff

•publicity which places a plaintiff in a false light in the public eye

•appropriation, for the defendant’s advantage, of a plaintiff’s name or likeness.

The case in question fell into the first category, which the court went on to discuss at length. In particular, the court explained that in order to be actionable:

•the defendant’s conduct must be intentional or reckless

•the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns

•a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The court’s rationale for confirming this new tort is interesting. The court wrote as follows: “We are presented in this case with facts that cry out for a remedy. While Tsige is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in Jones’ position would be profoundly disturbed by the significant intrusion into her highly personal information. The discipline administered by Tsige’s employer was governed by principles of employment law and the interests of the employer and did not respond directly to the wrong that had been done to Jones. In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.”

The court also noted there are limitations regarding this new tort: “Claims from individuals who are sensitive or unusually concerned about their privacy are excluded.”

Further, the court acknowledged that: “Claims for the protection of privacy may give rise to competing claims. Foremost are claims for the protection of freedom of information and freedom of the press. … suffice it to say, no right to privacy can be absolute and many claims for the protection of privacy will have to be reconciled with, and even yield to, such competing claims.”

It remains to be seen how this new tort will be treated by the courts in other contexts, and particularly in situations where an employer has allegedly breached the privacy of its employees. However, such potential claims are not difficult to imagine, and employers should be mindful of the fact this decision of the Ontario Court of Appeal has now made it possible that intruding into their employees’ private lives will result in liability for intrusion upon their seclusion.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

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