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No “Tort of Privacy” at Work. But is there a Contractual Right to Privacy at Work?

UPDATE: Court of Appeal has granted leave to hear an appeal from Jones v. Tsige. Will a tort of privacy rise from the ashes? Stayed tuned… [Hat Tip Chris Davidson]

My hockey buddy Alex Cameron (he’s a goon) from Fasken Martineau argued a case before Justice Kevin Whitaker (formerly Chair of the Ontario Labour Relations Board) last December involving an odd set of facts.  The case is called Jones v. Tsige, and it rules that there is no tort of privacy in Ontario.  For my non-law students, remember that a tort is a wrong done by one person (or corporation) to another that judges have recognized as unlawful.  For example, we learn a little about the torts of trespass, defamation, and nuisance.

In Jones v. Tsige, an employee of the Bank of Montreal began snooping on another employee (Jones) of BMO.  Tsige accessed Jones’ financial bank records 174 times over a period of 4 years.  Tsige’s common law spouse was Jones’ ex-husband, and Tsige apparently had some personal interest in Jones’ finances.  Oh, the sorted lives of bank employees!   Jones was none to happy when she found out that her banking information was being used for Tsige’s own entertainment purposes.  BMO imposed a “five day suspension” on Tsige for her misconduct (Hhmmm.  Can a nonunion employer impose a five day suspension for misconduct?  Not an unpaid one, unless the employment contract gives the employer that right).  Jones sued Tsige, alleging a violation of the tort of privacy.

Justice Whitaker reviewed the case law and concluded that there is no free-standing tort of invasion of privacy in Ontario.  Therefore, the case was dismissed.  He said he was bound by the decision of the Court of Appeal in a case called Euteneier v. Lee, in which Justice Cronk noted that there was no “right to dignity or privacy under the Charter or at common law”.  Whitaker also noted that since banks are covered by the Personal Information Protection and Electronic Documents Act, 2000, (“PIPEDA”), “ Ms. Jones had the right to initiate a complaint to the Commissioner under that statute.”

Is that correct, my PIPEDA expert friends?

Jones v. Tsige was about employee on employee snooping. More often, employees are concerned about their employers intruding on their privacy. The law governing privacy at work is governed by an odd patchwork of laws at present. As Whitaker J. notes, some workplaces are governed by privacy legislation, while others are not.  In some provinces, like British Columbia, a tort of privacy is created by statute.  Section 1 of the B.C. Privacy Act says this:

1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

When I began practicing labour law in B.C. back in the 1990s, after coming from Ontario, I was surprised to find this.  It made it much easier to argue privacy cases on behalf of employees.  In Ontario, arbitrators and judges have sometimes found backdoor ways to protect employee privacy.  I noted  a case last year called Colwell v. Cornerstone in which the Ontario Superior Court ruled that a nonunion employer constructively dismissed an employee when it secretly videotaped her in her office.  You might ask, if the employee had no right to privacy, then what legal wrong did the employer commit?

The answer:  the employer breached a new implied contract term:   “that each party would treat the other in good faith and fairly, throughout the existence  of the contract, as well as during termination”. So there was no tort of privacy, but it doesn’t matter, because there is an implied contract term that has the same effect.  If an employer invades an employee’s privacy, it is breaching the employment contract.  And if you are breaching a term of the contract, you can recover damages, I would think (although the Court in Caldwell got confused about this point).

Perhaps all this legal gymnastics could be avoided if Ontario just followed B.C.’s lead and introduced a general right to privacy by statute.  Would that be a good idea in your opinion?

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6 Responses to No “Tort of Privacy” at Work. But is there a Contractual Right to Privacy at Work?

  1. Don Jordan Reply

    May 13, 2011 at 1:09 pm

    The BC Privacy Act is no panacea. While s 1(1) creates a tort, s1(2) provides: “The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances giving due regard to the lawful interests of others.” The Privacy Act did not prevent the admissibility of videotape evidence of an employee caught sleeping in a lunchroom on an unsupervised night shift. (see: Richardson v. Davis Wire (1997) 33 BCLR (3d) 224) nor does it prevent monitoring of employees on disability leave when they are in public . So the prima facie tort is not the protection it first appears. Each case involves what was a reasonable expectation of privacy in the circumstances.

    • Doorey Reply

      May 13, 2011 at 2:44 pm

      Thank you Don. Yes, I do recall that the actual application of the Privacy Act was unpredictable. That sort of balancing of rights is probably a sensible approach overall. At least the Privacy Act gives employees a way into the argument. Absent the legislation in Ontario, nonunion employees often have no access to that sort of balancing, except when they find a judge willing to be creative in finding some right to privacy while claiming that no common law right of privacy exists.

  2. Dennis Buchanan Reply

    May 13, 2011 at 5:48 pm

    “Can a nonunion employer impose a five day suspension for misconduct?” If the misconduct would otherwise constitute just cause for termination, then yes, according to Justice Echlin’s commentary in the Carscallen decision. And considering the circumstances, I’d say there’s a good pitch for just cause.

    That Jones was an employee of BMO is a red herring. She didn’t know Tsige, didn’t deal with her at all in an employment-related capacity, and worked at a different branch. Jones was a client, which comes with myriad contractual and statutory protections, which BMO breached through Tsige’s misconduct. It was because Jones was a client that Tsige had access to her personal information, and Tsige abused that privilege for her own personal advantage. Puts it into the same framework as if you or I had our banking information compromised by an adverse bank employee.

    Consider, by contrast, a circumstance in which an employee of a Provincially-regulated employer in Ontario has his/her personal information aired by an unhappy colleague with access to personnel files. Might be hard for such an employee to find any avenue of recourse.

  3. Chris Davidson Reply

    May 16, 2011 at 1:44 pm

    The Ontario Court of Appeal is going to hear the appeal to Jones v. Tsige ( see The Law Times: http://www.lawtimesnews.com/201105098435/Headline-News/Appeal-court-to-consider-privacy-tort), so we might book-mark the tort of invasion of privacy in Ontario.

  4. Chris Davidson Reply

    January 18, 2012 at 2:40 pm

    The Court of Appeal has given its decision in Jones v. Tsige. The unanimous decision recognizes a tort of invasion of privacy in Ontario: http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm

  5. Dennis Buchanan Reply

    January 18, 2012 at 2:56 pm

    The decision on the appeal was released today: They allowed the appeal, recognizing and defining the tort of “intrusion upon seclusion”.

    http://www.ontariocourts.on.ca/decisions/2012/2012ONCA0032.htm

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