Employment law governs the rights and obligations between individuals and their employers. They arise from the common law in most provinces and the civil law in Québec. Employment lawyers negotiate and draft individual employment contracts; advise as to the obligations that arise from the employer-employee relationship; draft non-solicitation, non-competition, golden parachute and arbitration clauses; and engage in litigation arising from the employment relationship.
Lawyers are divided on the impact of the Ontario Court of Appeal's January 2012 decision in Jones v. Tsige, which recognized a new common law cause of action for invasion of privacy, on the business community and employers in particular.
What is clear is that the court did not establish the broad tort of invasion of privacy but limited the cause of action to “intrusion upon seclusion” and specifically confined its decision to the particular facts of the case before it.
Adopting the principles found in the US Restatement (Second) of Torts (2010), the court ruled that to succeed in a claim for intrusion upon seclusion, the plaintiff had to prove that:
- The defendant acted intentionally or recklessly and negligence alone would not suffice;
- The defendant invaded the plaintiff's private affairs or concerns without lawful justification; and
- A reasonable person would regard the invasion as highly offensive and causing distress, humiliation or anguish.
The upshot is that claims can arise only for deliberate, significant intrusions for highly offensive matters such as financial or health records, sexual preferences, employment, or private correspondence. As well, the court noted that the right to privacy is not absolute and must be balanced with the rights to freedom of expression and freedom of the press.
Although the court did suggest $20,000 as the limit for “symbolic or “moral” damages, the new tort does not require proof of economic loss. Otherwise, the decision could affect the law relating to proprietary commercial information and prompt class actions in the telemarketing arena and other areas where organizations collect or use information in a manner that amounts to an invasion of privacy.
Jones arose when Winnie Tsige, who worked at a different BMO branch than Jones, another BMO employee, accessed Jones' personal banking records on 174 occasions over four years. Tsige had been involved in a relationship with Jones' former husband and became involved in a financial dispute with him. She acknowledged having accessed Jones' records for personal reasons, largely because of a desire to ascertain whether the husband had been paying child support to Jones. Tsige apologized and accepted discipline amounting to a five-day suspension and a loss of her annual bonus.
Jones sued Tsige for the tort of breach of privacy. Both parties moved for summary judgment. Justice Kevin Whitaker of the Ontario Superior Court of Justice dismissed the action. He concluded that an earlier 2005 decision from the Ontario Court of Appeal, Euteneier v. Lee, had established that the tort of invasion of privacy did not exist in Ontario.
Euteneier involved the privacy expectations of a prisoner in a jail cell who had attempted to commit suicide, but whose counsel conceded on appeal that there was no tort of invasion of privacy. In acknowledging the concession, the Eutenier court appeared to indicate that the concession reflected the law.
Whitaker took this remark as binding upon him and dismissed Jones' claim, but Justice Robert Sharpe, writing for the unanimous Court of Appeal in Jones, disagreed. “Accordingly, it is clear from the context and from the words used that the passage [in Euteneier] at para. 63 relied on by the motion judge — “[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” — could not have been intended to express any dispositive or definitive opinion as to the existence of a tort claim for breach of a privacy interest,” Sharpe stated. “No such claim had been advanced by the plaintiff, no argument on that point was addressed by counsel, and in my view, no opinion on that point was expressed by this court.”
Whittaker also observed that Jones had a right of complaint against the Bank under the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA). “For this reason, I do not accept the suggestion that Ms. Jones would be without any remedy for a wrong, if I were to determine that there is no tort for the invasion of privacy.” Whitaker wrote.
Again, Sharpe saw the issue otherwise. “PIPEDA is federal legislation dealing with “organizations” subject to federal jurisdiction and does not speak to the existence of a civil cause of action in the province,” he wrote. “While BMO is subject to PIPEDA, there are at least three reasons why, in my view, Jones should not be restricted to the remedy of a PIPEDA complaint against BMO. First, Jones would be forced to lodge a complaint against her own employer rather than against Tsige, the wrongdoer. Second, Tsige acted as a rogue employee contrary to BMO's policy and that may provide BMO with a complete answer to the complaint. Third, the remedies available under PIPEDA do not include damages and it is difficult to see what Jones would gain from such a complaint.” As for Ontario's privacy legislation, it also had “nothing to do with private rights of action between individuals.”