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It's not clear though, adds Beagan Flood, whether the tort of "intrusion upon seclusion" is intended to overlap for employers already subject to the fed- eral Personal Information Protection and Electronic Documents Act, or whether it's only intended to fill in the gaps where PIPEDA doesn't apply. "I think one con- cern for employers is the extent to which they could be vicariously liable for torts committed by their employees," says Bea- gan Flood. "That's not an issue the court of appeal addressed at all in this case but it is a potential issue for liability of employ- ers." So will Tsige really open the floodgates to new privacy actions? Probably not, but employers are advised to review their cur- rent policies and consider the potential holes in their current privacy programs. "I think it's interesting that the Court of Appeal mentioned in the decision that recognizing a broader invasion of pri- vacy tort could become unmanageable, so they realized there was a potential for the floodgates to open and were quite careful to put limits around the new tort they were recognizing including reckless and intentional behaviour. But at the same time this raises a whole host of questions that simply aren't dealt with by the Court of Appeal," says Beagan Flood. She adds it's important for employers to recognize that the appeal court limited this tort to intentional and reckless actions so having proper policies and procedures and con- sents in place can help an employer show it wasn't acting recklessly. Nieuwland agrees there are some un- knowns as a result of the new tort. "So what's a private affair and what's a lawful justification? That's not addressed in the decision. We're kind of leſt to guess a bit. Justice Sharpe has broken new ground Find the and decision at at here so there's not a lot of guidance, but one can look at privacy legislation in other provinces that talk about justifiable use and distribution of employee information and circumstances under which it is jus- tifiable." For example, in B.C. the Personal Information Protection Act allows an employer to collect, use, and distribute information about an employee if the col- lection is reasonable for an investigation or a proceeding. "That's a relatively broad exception and I think a court would take some guidance from that in deciding what is a lawful justification for the purposes of tort law," he says. This is particularly applicable in the case of video surveillance. "If you're an employer and have reasonable grounds to suspect disability fraud, if you sought consent from the employee to observe them they would just continue their charade of being unable to work," says Nieuwland. "Surreptitious observation is necessary for that type of work." CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL MORE THAN 5,800 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. Let us open right door for you the ORDER# 804218-62303 $341 2 volume looseleaf Anticipated upkeep cost - $219 per supplement 4-5 supplements per year Supplements invoiced separately 978-0-88804-218-3 CD-ROM or Internet version available separately Prices start at $473 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 www.CANADIAN Lawyermag.com A PRIL 2012 49 ntitled-3 1 7/13/11 4:01:40 PMuretzky_CL_May_11.indd 1 4/14/11 10:32:23 AM Jones v. T ole sig e c ourts.c htm decisions/2011/2011O R. v. C a/decisions/2012/2012O ontarioc N C ontario C A0218.htm. N a/ ourts.c A0032. -

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