The City of Oshawa is being sued for breach of confidentiality,
breach of contract and invasion of privacy after information about
a former employee's dismissal was leaked on social media,
sparking wide spread public debate about the employee's
character, actions and professionalism.
According to public reports, the City of Oshawa's Real
Estate Manager was terminated after for two years employment,
during which he was involved in the controversial purchase of a new
works depot for the City. The purchase was the subject of
much public controversy, scandal, investigation, and
After his termination in May 2013, the former Real
Estate Manager reached a settlement with the City about the
terms of his termination. The Agreement included a
confidentiality clause, requiring confidentiality on matters
related to his employment and the settlement.
An email was sent to Counselors and senior staff advising them
not to discuss the termination of "a staff member in the Real
Estate division" and noting that the position of Real Estate
Manager would not be filled. The email ended up being posted
Although the email did not name the former employee, he was
identifiable by the reference to his position. Subsequent
comments on Facebook by the public specifically named him.
The former employee has now filed a lawsuit
alleging breach of contract, negligence, breach of
confidentiality, and damages related to a new Ontario common law
tort, invasion of privacy or intrusion on seclusion. He is
seeking over $1,000,000 in damages.
The lawsuit also claims against "John
Doe" the employee or elected official who leaked the
information. The former employee claims the City knows who it
is. For more details, see the news story here.
The City has not yet field a defence to the lawsuit.
What this means to you
While this lawsuit is in its infancy, it is cause for concern
Information related to an employee's departure must
be kept confidential: particularly if there is settlement
agreement with a confidentiality clause. Courts will uphold
these clauses. An Ontario court recently found that
confidentiality clauses can cover more than just the dollar amount
of the settlement. A former employee who publicized the
details of her departure, but not the dollar amount of the
settlement she was given, was ordered to re-pay her
An employer may be held responsible for the actions of
its employees or agents: if confidential information about
an employee is leaked, the employer may be held responsible,
regardless of whether the individual who leaked the information had
the authority to do so or not.
Publicizing an employee's departure information may
also be a breach of privacy: in 2012, the Ontario Court of Appeal recognized a new common
law tort, invasion of privacy or intrusion on seclusion.
We wrote about this tort in a
Client Update if want to know more about it. As with
all torts, an employer can be held vicariously liable if its
employee or agent commits the tort of intrusion on seclusion.
Once something is up on social media, the poster loses
control but may be held accountable for the results: The
former employee's lawsuit is claiming the City is
responsible for disparaging comments made by members of the public
who commented on the email. It may never have been the intention of
"John Doe" to put the City at risk when he leaked the
email, but it remains to be seen whether the
courts will hold the City responsible for the public
commentary or not. In the mean time, it is advisable that all
employers have social media policies that, among other
things, prohibit employees from disclosing confidential
Company information online.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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