The Ontario Court of Appeal ruled last week to permit the tort of breach of privacy in civil action lawsuits, signalling a significant change in privacy law that some might say was long overdue.
A short summary of the case Jones v. Tsige:
Sandra Jones worked for the Bank of Montreal, unknowingly alongside Winnie Tsige, the common law partner of her ex-husband. It was discovered that over the course of 4 years, Tsige had accessed Jones` financial information at least 174 times. After suspicions were raised by Jones, Tsige admitted to the wrongdoing and was disciplined with the denial of her bonus and a one week suspension without pay. Not satisfied that this was a sufficient resolution, Jones successfully challenged a limitation in civil court on the right of an individual to directly sue another for invasion of privacy. Referencing Professor William L. Prosser’s text “Privacy”, the judge appropriately named the new tort “Intrusion upon Seclusion”.
Who can be guilty of intrusion upon seclusion?
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
An important caveat to the scope provided was that cases need only be considered if the action(s) are both deliberate and significant. How effective these guidelines will be at deterring frivolous claims waits to be seen.
What does this mean for employers and employees?
It is important to consider both the cause of your privacy concern as well as your desired remedy. A good starting point is discussing the matter with your manager. If you are dissatisfied with the process that was followed, it may make more sense to pursue a complaint through the Personal Information Protection and Electronic Documents Act. (PIPEDA) This should give companies greater incentive to ensure that their policies and procedures on privacy are exceptional, as it will be easier to perform damage control sooner rather than later.
With individuals on the hook for up to $20,000, it certainly doesn’t hurt for employers to mitigate potential liabilities and for snooping employees to temper their impulses.