I’ve often said that my job is mostly about people behaving badly at work, so the fact situations underlying the cases I read are often all too human in nature.
Consider the case of Winnie, who was fighting with her common-law husband about money. She wasn’t convinced he was actually paying child support payments to Sandra, his former wife, so she used her status as a bank employee to check Sandra’s bank records. Not just once or twice, but 174 times over four years! Sandra, employed by another branch of the same bank, eventually became suspicious and reported Winnie to their mutual employer. Winnie was disciplined by the employer, who imposed a one-week suspension and denied her a bonus.
Sandra didn’t leave it at that. She filed a statement of claim in Ontario Superior Court, asking for damages from Winnie for invasion of her privacy. But Winnie defended the action, and persuaded a motions court judge to dismiss the claim because Ontario has not historically specifically recognized the tort of invasion of privacy.
Undeterred, Sandra appealed the motions court decision, with the result that the Ontario Court of Appeal has now specifically recognized Winnie’s actions as constituting the tort of “intrusion upon seclusion”. After surveying case-law and legislation (including the Charter) from provincial, national and international jurisdictions, the Court concluded:
As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message. …
Technological change poses a novel threat to a right of privacy that has been protected by hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.
Finally, and most importantly, we are presented in this case with facts that cry out for a remedy. While [Winnie] is apologetic and contrite, her actions were deliberate, prolonged and shocking. Any person in [Sandra’s] position would be profoundly disturbed by the significant intrusion into her highly personal information. … In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.
That legal remedy imposed by the Court of Appeal is the acceptance of the existence of an action for intrusion upon seclusion:
The key features of this cause of action are, first that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. … [D]amages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
Later in the decision, the Court indicated that damages for intrusion upon seclusion should not exceed $20,000 – the “modest sum” awarded to Sandra was $10,000.
So what does this mean for employers? Our first recommendation is to review your policies, procedures, codes of conduct, etc. very carefully to ensure that your employees’ “seclusion” (ie. privacy) is protected from intrusion both by co-workers and management. We think this may be difficult, in practice, at least until we have more direction from the Courts on the issue. For example, how far can an investigation go? What aspects of the workday will be considered employees’ “private affairs or concerns”? What will constitute “lawful justification” for intrusion?
We anticipate that the Court of Appeal decision will be appealed to the Supreme Court of Canada, but in the meantime, employers must be aware of increased potential liability on this new front. Sigh.
Jones v. Tsige, 2012 ONCA 32.