I reported on this case a while back, when Justice Kevin Whitaker (ex Chair of the OLRB) decided that there was no “tort of invasion of privacy” in Ontario. Yesterday, the Ontario Court of Appeal has released
I was tied up most of yesterday and today, and now that I am getting round to the decision, it is already old news. That’s the power of the blogging medium! I described the basic facts in my earlier post, and there isn’t much I can add to the other excellent summaries already out there, which include:
Slaw (Omar Ha-Redeye)
Michael Power, Barrister & Solicitor
Youth and Work
In essence, the Court ruled that it is time for the law to move forward and recognize the need to protect people from unreasonable intrusion into their private lives by recognizing a new free-standing tort called intrusion upon seclusion. For my employment law students, we discuss how torts are legal rules developed by judges over time when they think that someone ought to be prohibited from doing something to someone else. New torts can emerge over time as society’s (and judges’) values change.
People have argued for courts to recognize a tort of “invasion of privacy” for a very long time. Judges have resisted, and sometimes governments have stepped in to deal with the issue by passing privacy legislation. Ontario has not legislated a general right to privacy, and courts have been reluctant to develop a distinct tort. For my students, read the Court’s explanation of why it is appropriate now for the courts’ to invent this new tort. It is summarized from paragraphs 66-69. The Courts’ concern with the snooping capacities of new technologies is interesting, and welcome.
Here is what needs to be proven to make out the tort:
1. An unauthorized intrusion;
2. The intrusion was highly offensive to a reasonable person;
3. The matter intruded upon was private; and
4. The Intrusion caused anguish and suffering (although the Court suggests this last one will be assumed when the first three are satisfied)
The Court rejects the lower court judge’s conclusion that, because provincial and federal governments have already addressed privacy in a patchwork of legislation, the issue of how best to govern privacy issues should be left with the elected governments. That is an argument that has succeeded before, such as in Seneca College v. Bhadauria, where the Supreme Court declined to exercise a new tort of discrimination because government had already turned its mind to the issue of discrimination in human rights codes. In Jones, the Court says that existing privacy legislation regulated organizations and not individuals, and therefore, the state had not closed off the potential for a new tort creating a right to sue individuals for breach of privacy. One may retort that the fact that the government elected to impose privacy responsibilities only on organizations signals its desire to not to impose such duties individuals. However, the Court rejected that claim.
As the Court notes in Jones, the fact that there has not until now been a free-standing tort of privacy has not always prevented judges from finding ways to punish people who they think have acted inappropriately in intruding upon others’ private lives by extending other known torts, like “nuisance” or “trespass”. The Court didn’t mention that judges have also implied contract terms that protect privacy, including in employment contracts (see my discussion of Colwell v. Cornerstone: secret installation of camera in employee office is breach of implied term that employer will treat employee ‘fairly and in good faith”.)
What effect will this case have for Employment and Labour Law in Ontario?
Because courts have already shown creativity in protecting privacy issues in clearly offensive situations, it is questionable whether this new tort will have the revolutionary impact some commentator’s are already predicting. Certainly, it cleans up the law and provides a clearer roadmap as to what is allowed and what is not. It is no longer necessary to push the boundaries of nuisance, or to rely on courts’ uneven approach to implying contract terms.
It will no doubt halt some practices we occasionally see in employment. For example, insofar as employers might engage in secret research of employee or job applicant’s credit ratings (the issue raised in Somwar v. McDonalds, which the court in Jones cited approvingly), or other personal information not otherwise publicly available, this tort would seem to apply. Does it prevent an employer from searching an employee’s facebook accounts? Probably not, unless perhaps if a person’s settings are set so as to exclude non-friends from viewing, and employer somehow hacks in (Is that possible? Do any employers do this?).
If an employer gets into a person’s facebook page when the employee did not authorize or intend the employer to have access, do you think that satisfies the elements of the tort listed above?
What about locker searches at work? Do you think that this imposes new restrictions on the right of employers to go through an employee’s locker or other items without the employee’s permission? Are workplace lockers “private”, or is there no expectation of privacy in a locker? What about an employer who secretly monitors private emails of employees, or web browsing by employees. Is software that tracks employee mail and internet use an unauthorized intrusion into employee privacy? If so, is the employer safe provided it posts an internet useage policy warning employees that they are being watched? Does the new tort impose any new restriction on the right of employers’ to install surveillance cameras in the workplace?
These are the sorts of issues that could be tested under this new tort.
The tort might also end up being important in cases when employers send out private investigators to spy on employees they think are malingering and pretending to be disabled. Would videotaping a person in their home by such a person be caught by this new tort?
Finally, the new tort could prove useful as a tool for establishing an “independently actionable wrong” in situations where courts have required this, such as in considering whether aggravated or punitive damages are available.
Those are my off the cuff thoughts. How do you think this new tort might influence employment and labour law?
