On January 18, 2012, the Ontario Court of Appeal released its decision in Jones v. Tsige, marking the first time that an Ontario appellate court has directly addressed the question of the existence of a tort of invasion of privacy.
The plaintiff was an employee at a bank. The defendant, an employee at a different branch, began looking at the plaintiff’s banking records after becoming involved in a relationship with the plaintiff’s former husband. When the plaintiff found out, she sued the defendant for breach of privacy. The matter was ultimately heard by the Court of Appeal.
Noting the development of law in recent years, the Court held that it was appropriate to confirm the existence of the tort of invasion of privacy – or more accurately “intrusion upon seclusion”. To be successful under this new cause of action, a plaintiff must show that the defendant intentionally or recklessly invaded, without lawful justification, the plaintiff’s “private affairs or concerns”, and that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
Recognizing the potential for the opening of the proverbial floodgates, the Court noted that only “deliberate and significant invasions of personal privacy” would permit recovery, and that any potential damages should be “modest”. The Court opined that damages should be capped at $20,000 in the most serious cases. The Court also emphasized that claims for protection of privacy will often have to yield to competing claims, such as freedom of expression and freedom of the press.
Applying these principles to the case at hand, the Court found that the defendant was liable for intrusion upon seclusion. Although the defendant’s actions were egregious and deeply upset the plaintiff, the plaintiff had suffered little tangible harm and the defendant had apologized. In light of these circumstances, the court decided that a moderate damage award of $10,000 was appropriate.
Although this case involved two employees, this tort would also apply to relationships between employers and their employees. In this respect, it is not uncommon for employees to allege invasion of privacy where the employers have searched company computers, email accounts and lockers, or where employers have conducted video surveillance of employees in public places. Unfortunately, the Court did not provide much guidance as to what might constitute an employee’s “private affairs or concerns”, except to note that there must be a subjective expectation of privacy which is objectively reasonable. It remains to be seen whether an employee’s work email or off-duty conduct will be considered sufficiently private, though these questions will no doubt be decided on a case-by-case basis.
To minimize exposure to these types of claims, prudent employers would do well to ensure they have communicated expectations with employees through formal written policies. Where employees have been duly informed of the reasonable limits on their privacy, particularly with respect to company computers, email and lockers, employers should be better equipped to defend against invasion of privacy allegations.
If you have any questions about the implications of this case, or any other questions related to employee privacy, or for assistance with the development of written policies, please do not hesitate to contact a Mathews Dinsdale lawyer.
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