As of today, individuals can now sue for the tort of privacy in Ontario. (Thanks to Professor Doorey for the heads up in a tweet and blog post this afteroon).
The new tort is based on the following statement:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his or her private affairs or concerns, is subject to liability to the other for invasion of his or her privacy, if the invasion would be highly offensive to a reasonable person.
Jones v Tsige
Today the Court of Appeal of Ontario released its highly anticipated decision in Jones v Tsige, which finds that an individual can now file an action with the court based on the tort of “intrusion upon seclusion”.
In this case, one bank employee named Tsige looked into the bank account of another employee named Jones (who became involved with Tsige’s ex-husband) at least 174 times over 4 years. Jones sued, lost at trial and appealed. The Ontario Court of Appeal awarded her $10,000 for the tort of intrusion upon seclusion.
Important Development in the Law
Previously, courts held that there was no right to an independent claim based on privacy, and that any privacy claims must be part of another claim, such as breach of an employment contract that contained a privacy provision. Plaintiffs therefore required another underlying action in order to also address any privacy claims.
Furthermore, given that no privacy legislation applies to non-health related personal information in most private sector workplaces in Ontario, there has been a gap in the legislation that prevented employees from filing a complaint with the Privacy Commissioner.
See my post on Privacy in the Workplace 101 from last summer for more details on the gap.
Take-Away for Employers
Employees can now take their claims of invasion of privacy directly to court. While the Jones v Tsigecase involves two employees, there is nothing that prevents an employee from taking his or her employer to court over a privacy issues.
In light of this very important development in the law, employers will want to consider whether their workplace policies, procedures and processes sufficiently address protection of privacy, now that employees have direct recourse in the courts.