Canadian Lawyer

LEGAL REPORT/LABOUR & EMPLOYMENT Intrusion upon seclusion: New tort in Ontario should prompt employers to review privacy policies. BY JENNIFER BROWN zations. In the wake of a recent Ontario Court of Appeal decision involving two employees of the same company, con- cerns have turned to how to better pre- serve privacy standards internally. In Jones v. Tsige, the Ontario Court F of Appeal recognized for the first time the tort of "intrusion upon seclusion." In the case, Sandra Jones and Winnie Tsige both worked at the Bank of Montreal, but at different branches and did not know each other. However, Tsige became in- volved 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 invasion of pri- vacy and breach of fiduciary duty, seek- ing damages of $20,000. The Court of Appeal allowed the ac- tion and awarded Jones $10,000 in "sym- bolic" or "moral damages" indicating that Tsige's actions did not cause Jones any financial loss. The decision stipu- lated that the law had to evolve to rec- ognize the need to protect individuals or years now companies have been focused on how to keep internal data from getting into the wrong hands outside their organi- from unreasonable intrusion into their private lives. It's a case that employers should pay close attention to, says employment lawyer Hendrik Nieuwland of Shields O'Donnell MacKillop LLP. Nieuwland predicts there will be more action coming in this area. "I have no doubt you're going to see more lit- igation in this realm. It's almost like Wal- lace all over again," he says, referring to "Wallace-type damages." Before Wallace v. United Grain Growers Ltd., employees were not entitled to compensation for in- juries due to a dismissal. Prior to Wallace, it was also extremely difficult for plaintiffs to obtain damages based on the manner in which they had been dismissed. The Court of Appeal described the tort of "intrusion upon seclusion" as: "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 of- fensive to a reasonable person." In his decision, Justice Robert Sharpe explained the limitations of the 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, humili- ation, or anguish; and 4) the plaintiff can recover damages even if there is no actual financial harm caused by the invasion of privacy, but the court capped damages at $20,000. "I don't see it as changing life dra- matically; the tort is probably built best for disputes between individuals who are very angry at each other," says Dan- iel Michaluk of Hicks Morley Hamilton Stewart Storie LLP. "It's a little bit like def- amation in that sense. It doesn't shape the actions of a corporation on a day-in, day- out basis but for employers and private investigators it's key and I think they'll get claims and I think it will modify the use of private investigators." Michaluk says he sees two sets of issues for employers to consider. One relates to the collection of information about em- ployees inside the workplace. "I think em- ployers will be given a wide berth inside the workplace. That has been the experi- ence in the United States where courts have said that inside the workplace em- ployers have to do things like investigate and audit, and your expectation of privacy is limited," says Michaluk. "I would hope that would be the case here, too." www.CANADIAN Lawyermag.com A PRIL 2012 47 justifiable? What's ALExI vELLA

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