The evolution of the thorny issue of privacy in the Canadian
workplace continues. In recent months we have updated you on
labour arbitration decisions. In a recent case, an individual
employee tried to take privacy one step further, suing another
employee for invasion of privacy. In a ruling welcomed by employers
and others, the Ontario Superior Court of Justice confirmed
– in its decision in Jones v. Tsige – that such
a claim does not exist in law in Ontario. But the matter is
proceeding to the Court of Appeal. If successful, the case could
open the floodgates for employees and others to claim damages for
alleged breaches of privacy directly from the courts, bypassing
existing privacy legislation.
Jones v. Tsige involves a claim against an employee of
a bank who repeatedly viewed the plaintiff's banking
information without authorization over a number of years. The
plaintiff also worked at the bank. The bank investigated the
incident and disciplined the defendant. The plaintiff brought an
action against the defendant for "invasion of privacy".
The plaintiff did not bring a claim against the bank.
The Court said that there was no right to sue for "invasion
of privacy" in Ontario. As a result, the claim was thrown out.
In reaching its decision, the Court noted that many jurisdictions
have created statutory privacy regimes which are better equipped
than the courts to deal with these types of claims. The Court
specifically noted that the plaintiff may have had recourse under
the Personal Information Protection and Electronic Documents
Act (PIPEDA), which is applicable to the banking sector. The
decision has been appealed and will be heard by the Ontario Court
of Appeal, likely sometime late this year.
Analysis: Potential Implications for Employers
Although the case deals specifically with a claim made by one
employee against another, the same principles would apply to claims
brought by employees against their employer. If employees were
permitted to bring such claims through the courts, it would impose
significant additional obligations on many employers, not to
mention the potential claims that could be brought by customers or
When considering any employee privacy issues, an employer should
it has a clear understanding of the statutes and other privacy
related laws applicable to its operations. While the legal
requirements are similar across many jurisdictions, there are
important differences of which you need to be aware; and
even in jurisdictions where there is no applicable privacy
legislation, it has policies and practices in place that protect
the basic privacy-related interests of all its employees.
The law surrounding workplace privacy issues is evolving
quickly. Staying ahead of the curve requires taking proactive steps
to ensure that your practices do not leave you open to either new
or existing types of claims – whether through the courts,
labour arbitration or under privacy legislation.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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