Privacy at Work
Christine Davies looks at a one of the few cases in which an arbitrator has considered recent developments in privacy law
In a landmark decision last year, the Ontario Court of Appeal endorsed the tort of invasion of privacy. In Jones v. Tsige, the parties were both employees of the Bank of Montreal. In 2009, Jones discovered that Tsige had been surreptitiously looking at her banking records. She sued Tsige for $90,000 in damages, claiming that Tsige had infringed her personal privacy. A lower court threw out the claim, holding that there was no free-standing right to privacy at common law and ordered Jones to pay Tsige’s court costs in the amount of $35,000.
The Court of Appeal disagreed with the lower court. It adopted the approach of American jurisprudence, which has recognized four distinct branches to the tort of invasion of privacy:
- Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Jones’ claim fell into the first category of “intrusion upon seclusion”, which captures the conduct of one who “intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns…if the invasion would be highly offensive to a reasonable person”. The Court of Appeal left open the possibility that the other three branches of the tort should be similarly recognized.
More recently, in R. v. Cole, the Supreme Court of Canada recognized that employees have a right to privacy even when using employer-owned equipment.
Thus far, however, few labour arbitrators have addressed the newly changing privacy landscape. One of the first to do so was Arbitrator Sims in Alberta and A.U.P.E.
When the Alberta government discovered that fraudulent program cheques were being passed through its spousal and child maintenance enforcement program, one of its investigators decided to conduct a credit check to see if any employees in the department were experiencing “financial difficulties”. The employer conceded that the credit checks were conducted in violation of Alberta’s Freedom of Information and Protection of Privacy Act. The arbitrator held that an employer in possession of employees’ personal information has an obligation to “protect that information and ensure its use for only legitimate purposes.” The arbitrator determined that, taking into account the unauthorized credit checks were not distributed further and the employer had agreed to cover the cost of having the checks expunged from the employees’ credit records, only modest damages of $1250 per employee should be awarded.
The Alberta case is important in establishing a positive obligation on employers to safeguard private employee information, and the liability of the employer for breaches of employees’ right to privacy in their personal information. This could include, for instance, inappropriate snooping and spying into employees’ personal information (such as financial or health care information that is maintained by employers).
It remains clear, however, that legitimate demands for private information will not be considered a violation of the right to privacy. For instance, in two recent cases – Canadian Bank Note Co. v. IUOE, Local 772, and Complex Services Inc. v. O.P.S.E.U., Local 278 – Arbitrator Surdykowski determined that there was nothing in the Court of Appeal’s decision in Jones v. Tsige to prevent an employer from asking an employee for information for a legitimate purpose (such as substantiating an absence) or as permitted by legislation or the collective agreement.
Returning to Jones v. Tsige, it may also be worth noting that, in considering the damages that might be ordered for intrusion upon seclusion, the Court of Appeal held that, where a plaintiff has suffered no monetary loss, damages “should be modest but sufficient to mark the wrong that has been done” and fixed the range at up to $20,000. In allowing the appeal, the Court of Appeal granted summary judgment in Jones’ favour but ordered Tsige to pay Jones only $10,000 in damages; which was much less than the $90,000 Jones had been seeking. Moreover, the Court held that, given the novel issue raised in the case, it would not order Tsige to pay any of Jones’ legal costs; rather, the parties were required to bear their own legal costs.