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February 3, 2012

New tort of ‘intrusion upon seclusion’ may impact employers

Authors Malcolm MacKillop and Hendrik Nieuwland

In Jones v. Tsige, 2012 ONCA 32, the Ontario Court of Appeal recognized for the first time a tort called “intrusion upon seclusion”. This new tort may have important implications for employers.

In that case, Jones and Tsige both worked at a Bank. Tsige became involved with Jones’ former husband, and used her workplace computer to access Jones’ personal account information at least 174 times. Jones learned of Tsige’s misconduct and sued for breach of privacy. The Court of Appeal allowed the action and awarded Jones $10,000.00 in “symbolic” or “moral damages (since Tsige’s actions did not cause Jones any financial loss), saying that the law had to evolve to recognize the need to protect individuals from unreasonable intrusion into their private lives.

The Court of Appeal described the tort of “intrusion upon seclusion” as follows:

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.

The Court of Appeal explained some of the key features of this new tort: (1) the defendant’s conduct must be intentional or reckless; (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; (3) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish; and (4) the plaintiff can recover damages even if there is no actual financial harm caused by the invasion of privacy, but capped these “symbolic” or “moral” damages at $20,000.00.

In recent years employers have been using various methods to gather information about prospective or current employees. These include using social media to conduct background checks, monitoring the use of workplace computers, and using private investigators to conduct surveillance on employees suspected of malingering or disability fraud. Most employees in Ontario work for private sector, provincially-regulated employers, and Ontario does not have private sector privacy legislation. The only remedy for an employee who feels her privacy has been invaded by an employer using these methods is to sue for “intrusion upon seclusion”. Employers should therefore examine and adjust the way they gather information to protect against invasion of privacy claims. The difficulty is that Jones v. Tsige leaves a number of important questions for employers unanswered.

(1) What is an employee’s “private affair”? The answer will impact employer use of social media (like LinkedIn or Facebook) for background checks. At first blush, it seems logical that information an individual makes publicly available online cannot be considered “private”. But the Information and Privacy Commissioners for BC and Alberta recently released guidelines that strongly caution that such background checks may violate their respective Personal Information Protection Acts (“PIPA”). It is worth noting, however, that both Acts allow for the collection and use of employee information in an electronic “publication” that is available to the public, which arguably would include social media.

(2) When does an employer have “lawful justification” to invade an employee’s privacy? The recent Ontario Court of Appeal decision in R. v. Cole, 2011 ONCA 218 suggests that employees can have a reasonable expectation of privacy in their workplace computers absent a policy saying otherwise. Employers who want “lawful justification” to conduct electronic workplace monitoring are well advised to have a policy that makes it clear that employees have no reasonable expectation of privacy in their workplace computers. When examining whether invasion of privacy is “justified”, it is also expected that Ontario courts will be guided by “justifiable” collection and use of information in privacy legislation like PIPA. For example, BC’s PIPA allows employers to collect and use employee information if obtaining consent would compromise the information and the information is reasonably required for an investigation or proceeding.

(3) When is an employer’s invasion of privacy “highly offensive”? Using a private investigator (“PI”) is one of the most effective methods of gathering information about employees suspected of malingering or disability fraud. In the case Davis v. McArthur, 17 D.L.R. (3d) 760, the BC Court of Appeal concluded that retaining a PI did not violate BC’s Privacy Act because the PI was used for a legitimate purpose, was not motivated by malice, and acted with “circumspection”. To protect against “offensive” invasions of privacy, Ontario employers should retain PIs for objectively reasonable purposes (like a fraud investigation), and should ensure the PI retained is well trained and professional since the employer could be liable for the PI’s misconduct.
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