Canada: Employee Privacy Breaches – Do They Warrant Discipline?

In 2012 the Ontario Court of Appeal first established the tort of intrusion upon seclusion to Canadian law in Jones v Tsige. Apart from the obvious impact of this case on those who are the victims of a privacy breach, the case has raised interesting questions in the field of labour and employment law. Namely, it places strong pressure on an employer to ensure prompt and sufficient discipline against employees who breach privacy rules in an effort to mitigate potential tort claims. The salient issue is how this new source of liability weighs against traditional labour and employment law concerning discipline. In other words, when does an employee's breach of a rule merit discipline and what discipline is warranted? While most cases thus far are in a labour context, these same general themes could be equally applied to non-unionized employees.

Privacy is serious business in certain industries

Arbitrators generally agree that confidentiality of certain records, particularly medical and banking records, is critically important. For that reason, many arbitrators have upheld the dismissal of employees for what may seem at first glance to be fairly minor breaches. While there is general consensus that privacy breaches are serious, outcomes begin to diverge when the adjudicator turns to the issue of mitigation: the reason why the snooping occurred, whether or not the employee was aware of a confidentiality policy, whether there is remorse, and whether the snooping is likely to happen again. Even where mitigation favours reinstatement, arbitrators impose lengthy unpaid suspensions. The issue is taken very seriously.

Especially the medical context

Most arbitrators find that there should be a zero tolerance standard when looking at confidential information in the medical context:

...I again wish to stress that the 'zero tolerance' standard should be the
norm and that only in compelling circumstances should termination not
be the result of deliberate breaches of the Act, Standard or confidentiality policies. ...

That quote is from Arbitrator Rayner in Bluewater Health and O.N.A. (Hardy) (Re), 2010 CLB 33129. The arbitrator said that the vulnerability of patients to the misuse of their medical records by employees with access to those records is obvious. But 'zero tolerance' does not always mean discharge is the only disciplinary response.

In the Bluewater matter, there were two grievors: one, a part time nurse with two years' service, accessed the medical records of four patients she had no connection to for very short periods – a matter of seconds. The grievor characterized this as 'accidental access'. The other grievor, a 15-year employee with a good work record, accessed the medical records of two patients – her daughter and her father. Her reason? She testified that she accessed her daughter's records because her daughter suffered from severe cerebral palsy and she was the primary caregiver. She said that she accessed her father's records because she wanted to explain and discuss what she discovered about his condition with him. In both cases, neither grievor had obtained consent, either express or implied, to access the patient records that they did. Arbitrator Rayner upheld the discharge of the first grievor, rejecting her de minimis argument and focusing on the fact that she failed to report any "accidental access" required by the policy. With the second grievor, he found that mitigation justified reinstatement without compensation, but with no loss of seniority.

In Timmins & District Hospital and O.N.A. (Peever) (2011), 208 LAC (4d) 43, Arbitrator Marcotte agreed with Arbitrator Rayner that "zero tolerance" is the norm. In Timmins, the grievor was a registered nurse, with 22 years' service who was discharged for breach of confidentiality after accessing the clinical mental health records of a patient. Her reason? The patient whose records she accessed had been married to her son who was embroiled in a custody dispute with the patient. Arbitrator Marcotte was unable to find any compelling circumstances to mitigate the penalty of discharge saying that, based on his conclusions that she knowingly accessed the information in violation of the employer's ethics and confidentiality policies and applicable privacy legislation without remorse, there was no assurance that her actions would not reoccur.

A very recent decision, released in March 2014 out of British Columbia, found compelling circumstances that favoured mitigation of a dismissal. In Vancouver Coastal Health Authority and HSA BC (Gamache), Re, (2014) 118 CLAS 104, the arbitrator was faced with a 24-year employee of the health authority who was dismissed for accessing and emailing contents of a patient's medical records. The employee had emailed this information to a friend of hers whose sister had recently separated from the patient. The employee claimed not to have known of the recent separation, but in any event, she had no consent to access the records. A three-month suspension without pay was substituted in lieu of dismissal. The arbitrator noted that despite a zero tolerance policy, the employer must still consider the unique facts of the case and that "extremely compelling" circumstances can justify penalties short of dismissal. The mitigating circumstances in this case included a lack of malice in disclosing the information, the employee's candid and sincere admissions of wrongdoing, her blemish-free record of employment and significant stressors in her life at the time.

Sometimes, discipline short of dismissal may be appropriate despite a "zero tolerance" policy due to mitigating factors.

Arbitrators in Canada recognize a well-known, well-understood and all-encompassing fundamental obligation on health care employees to maintain the confidentiality of patient information.

But lately, privacy isn't just restricted to health care settings; it's about trust

Steel v Coast Capital Savings Credit Union will be of interest to non-union employers who place a high expectation on their employees to ensure privacy and confidentiality of clients. This decision is also reviewed in Preparing for the office snoop: protect employee privacy and limit your liability. Ms. Steel's job description required that she "Respect the privacy and confidentiality of all customer and staff information at all times". In her job, Ms. Steel could access personal folders of employees when she was assisting with technical problems. Her access, however, was restricted by protocol: (a) the employee whose personal folders were to be accessed had to provide consent; or, (b) the VP of corporate security had to authorize it. Nevertheless, Ms. Steel, who had signed off on the employer's Acceptable Use Policy, Code of Conduct Policy and Information Confidentiality Policy, accessed a spreadsheet in a co-worker's personal file that contained confidential employee information including pay grades and seniority dates. After an investigation by the employer, Ms. Steel was terminated for cause. The court agreed that the employer had cause, saying:

Ms. Steel occupied a position of great trust in an industry in which trust is of central importance. In her position [she] was given the ability to access confidential documents. The employer established clear policies and protocols known to Ms. Steel at the relevant time that were to govern access to confidential documents.

The court found that the 'trust' fundamental to Ms. Steel's position was broken beyond repair.

What this means for employers

The outcome of an arbitration or court case can never be 100 per cent predictable because of the large role that individual facts play. What is predictable is that privacy breaches will continue, whether as a result of human curiosity or snooping. Nonetheless, employers are equipped with strong guidance from arbitrators as well as the courts. Decision makers are saying that in some industries, 'zero tolerance' is the standard and unless there are sufficient mitigating circumstances, dismissals are appropriate even for seemingly minor violations. Even in cases where mitigation does play a role, arbitrators are saying lengthy unpaid suspensions are warranted. Employers, whether unionized or non-unionized, in the health care, banking or any other sector where confidentiality is an expected condition of employment, should continue to educate employees through codes of conduct or confidentiality policies and should clearly say discipline will follow when these policies are violated. As in all cases, policies and discipline must always be consistent and equally applied. Hillary Clinton summed it up best when she said:

We count on the space of trust that confidentiality provides. When someone breaches that trust, we are all worse off for it.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions