APPELLATE COURT RECOGNIZES NEW COMMON LAW TORT

In the recent decision of Jones v. Tsige, the Ontario Court of Appeal became the first appellate level court to recognize the tort of invasion of privacy in the province of Ontario. Traditionally, it had generally been held that there was no right to an independent claim based on an invasion of privacy.

In Jones v. Tsige, both parties were employees of the Bank of Montreal, although they did not know one another. After Tsige became involved with Jones’ ex-husband, she began to use her workplace computer to access Jones’ bank account on at least 174 separate occasions for the purpose of snooping via Jones’ banking transactions. Upon learning of the unauthorized access, Jones commenced an action against Tsige in the Ontario Superior Court of Justice for an invasion of privacy. The action was initially dismissed on the grounds that the tort of invasion of privacy did not exist at common law in Ontario. However, upon appeal by Jones, the Court of Appeal overturned the initial decision. The Court of Appeal reasoned that the internet and digital technology have accelerated the pace of technological change, causing personal data to be particularly vulnerable, and that an evolution of the law was necessary to properly address novel threats to privacy.

Adopting the American definition of the tort of intrusion upon seclusion, the Court of Appeal identified the key elements that are required to sustain a cause of action for the new tort:

(1)    The intrusion must be intentional and unauthorized;

(2)    The defendant must have invaded, without lawful justification, the plaintiffs private affairs or concerns; and

(3)    A reasonable person would regard the intrusion as highly offensive, causing distress, humiliation or anguish.

As it was expressed, the new tort is quite limited in its application to situations involving a deliberate and significant invasion of personal privacy. For example, in a subsequent arbitral decision(Complex Services Inc. and OPSEU, Local 278), interpretive guidance was provided by arbitrator George Surdykowki who stated that it still remains the case that an employer is entitled to request and receive an employee’s confidential medical or other information to the extent necessary to answer legitimate employment related concerns or to fulfill its obligations under the collective agreement or legislation, including human rights and safety legislation.

Nonetheless, prudent employers should exercise a degree of caution in the wake of the Jones v. Tsige decision. Those in a position to access sensitive employee information should always ensure that they have a clear business reason for doing so. Given that the Court expressed its opinion that damages for a breach of the new tort not exceed $20,000 in most circumstances, employers will most likely see employees adding an alleged breach of privacy in applicable wrongful dismissal claims where litigation costs are already being expended.