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A tort, in common law jurisdictions, is a civil wrong that causes another individual to suffer loss or harm and results in legal liability for the person who actually committed the tortious act. In the case of Jones v. Tsige (“Jones”), 2012 ONCA 32, the Ontario Court of Appeal recognized for the first time a tort called “intrusion upon seclusion”. This developing tort may have important implications for employers.

In Jones, both 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 over 170 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 in moral damages. This amount was awarded as Tsige’s direct actions did not cause Jones any financial losses. In doing so, the Court of Appeal noted that the law has to evolve to recognize the need to protect individuals from unreasonable intrusion into their private lives.

Intrusion upon Seclusion
The tort of intrusion upon seclusion (i.e. invasion of privacy) was described by the Court of Appeal as follows: an individual who deliberately intrudes, whether physically or otherwise, upon the seclusion of another person’s private affairs, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.

The Court of Appeal explained some of the key factors 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;
(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.

Employers often use various methods to gather personal information regarding future or current employees, including using social media to conduct background checks, monitoring workplace computer use, and even hiring private investigators to conduct surveillance on employees suspected of malingering or disability fraud. This new tort may, in certain circumstances, provide Ontario employees with recourse if they feel their employer has invaded their privacy.

Employers should 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. It may seem logical that information an individual makes publicly available online cannot be considered “private”. However, the Information and Privacy Commissioners for BC and Alberta 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 PIPAs 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 Supreme Court of Canada decision in R. v. Cole, 2012 SCC 53, suggests that employees can have a reasonable expectation of their 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.

(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. To protect against “offensive” invasions of privacy, Employers should ensure that PIs are retained only for objectively reasonable purposes (like investigating fraud) and should also ensure any PIs it retains are well trained and professional as they could be liable for the PI’s misconduct.

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice.