Canadian Lawyer InHouse

By Malcolm J. MacKillop and Hendrik T. Nieuwland New tort leaves many unanswered questions 'Intrusion upon seclusion' may give employers new cause for concern. I n Jones v. Tsige, the Ontario Court of Appeal recognized for the first time a tort called "intrusion upon seclusion." This new tort may have important implications for employers. In that case, Sandra Jones and Winnie Tsige both worked at a bank. Tsige became involved with Jones' former husband, and used her workplace computer to access Jones' personal account information at least 174 times. Jones learned of Tsige's misconduct and sued for breach of pri- vacy. The Court of Appeal allowed the action and awarded Jones $10,000 in "symbolic" or "moral damages" (since Tsige's actions did not cause Jones any financial loss), saying the law had to evolve to recog- nize the need to protect individuals from unreasonable intrusion into their private lives. The Court of Appeal described the tort of "intrusion upon seclusion" as follows: "One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liabil- ity to the other for invasion of his pri- vacy, if the invasion would be highly offensive to a reasonable person." The Court of Appeal explained some of the key features of this new tort: 1) the defendant's conduct must be inten- tional or reckless; 2) the defendant must have invaded, without lawful justification, the plaintiff 's private affairs; 3) a reason- able person would regard the invasion as highly offensive causing distress, humilia- tion, or anguish; and 4) the plaintiff can recover damages even if there is no actual financial harm caused by the invasion of privacy, but capped these "symbolic" or "moral" damages at $20,000. In recent years employers have been using various methods to gather infor- mation about prospective or current employees. These include using social media to conduct background checks, monitoring the use of workplace comput- ers, and using private investigators to con- duct surveillance on employees suspected of malingering or disability fraud. Most employees in Ontario work for private- sector, provincially regulated employers, and Ontario does not have private-sector privacy legislation. The only remedy for an employee who feels her privacy has been invaded by an employer using these methods is to sue for "intrusion upon seclusion." Employers should therefore examine and adjust the way they gather information to protect against invasion of privacy claims. The difficulty is there are a number of unanswered questions for employers. 1) What is an employee's "private affair?" The answer will impact employer use of social media (LinkedIn, Facebook) for background checks. At first blush, it seems logical that information an indi- vidual makes publicly available online cannot be considered "private." But the information and privacy commissioners for B.C. and Alberta recently released guidelines that caution such background checks may violate their respective Personal Information Protection Acts (PIPA). It is worth noting, however, that both acts allow for the collection and use of employee information in an electronic "publication" that is available to the pub- lic, which arguably would include social media. 2) When does an employer have "law- ful justification" to invade an employee's privacy? The recent Ontario Court of Appeal decision in R. v. Cole suggests that employees can have a reasonable expecta- tion of privacy in their workplace com- puters absent a policy saying otherwise. Employers who want "lawful justification" to conduct electronic workplace mon- itoring are well advised to have a policy that makes it clear that employees have no reasonable expectation of privacy in their workplace computers. When exam- ining whether invasion of privacy is "jus- tified," it is expected Ontario courts will be guided by "justifiable" collection and use of information in privacy legislation like PIPA. For example, B.C.'s PIPA allows employers to collect and use employee information if obtaining consent would compromise the information and the information is reasonably required for an investigation or proceeding. 3) When is an employer's invasion of privacy "highly offensive?" Using a private investigator is one of the most effective methods of gathering information about employees suspected of malingering or disability fraud. In the case of Davis v. McArthur, the B.C. Court of Appeal con- cluded that retaining a PI did not violate B.C.'s Privacy Act because the PI was used for a legitimate purpose, was not motiv- ated by malice, and acted with "circum- spection." To protect against "offensive" invasions of privacy, Ontario employers should retain PIs for objectively rea- sonable purposes , and ensure the PI retained is well trained and professional as the employer could be liable for the PI's misconduct. IH Malcolm MacKillop and Hendrik practise Nieuwland employment law with the firm Shields O'Donnell MacKillop LLP of Toronto. INHOUSE APRIL 2012 • 13

• Cover