By Ian Campbell and Justine Connelly
The evolution of privacy rights in the Canadian workplace continues. In recent months we have updated you on court and labor arbitration decisions that have commented on employee privacy rights. An individual employee tried to take her rights one step further when she sued another employee for invasion of her privacy rights.
Luckily for employers, the Ontario Superior Court of Justice has confirmed — in its decision in Jones v. Tsige — that such a claim doesn’t exist. But the matter is proceeding to the Ontario Court of Appeal. If successful, it could open the door for employees to claim damages for breaches of privacy directly from the courts.
Review of colleague’s bank records
Jones and Tsige worked at different branches of one of Canada’s national banks, where Jones also did her personal banking. Over the course of approximately four years, Tsige accessed Jones’ personal banking records on roughly 174 different occasions. Tsige’s actions were allegedly motivated by a financial dispute with her common law spouse, who also happened to be Jones’ ex-husband. Tsige wanted to confirm whether her partner had been paying child support to his ex-wife.
When the situation was brought to the attention of the bank, it investigated and disciplined Tsige. But that didn’t satisfy Jones. She decided to take matters into her own hands and sued Tsige for invasion of privacy.
Because Ontario has no provincial privacy legislation relevant to individual persons, the court had to consider whether there is a general right to privacy and whether someone can sue another person for invasion of privacy.
Decision
The court said that there was no right to sue for invasion of privacy in Ontario. As a result, Jones’ claim was thrown out.
In reaching its decision, the court noted that many jurisdictions have already created statutory privacy regimes that are better equipped to deal with these types of claims than the courts. The court specifically noted that because both Jones and Tsige were bank employees, Jones may have had recourse to the complaint procedures provided for under the federal Personal Information Protection and Electronic Documents Act (PIPEDA).
The decision in Jones v. Tsige has already been appealed and will be heard by the Ontario Court of Appeal, likely sometime late this year. One of the issues likely to be raised on appeal is whether the same result would have been reached had the workplace at issue not been federally regulated (i.e., had PIPEDA not been arguably applicable), thereby leaving no other avenue of recourse for Jones.
Analysis: potential implications for employers
Although Jones v. Tsige deals specifically with a claim made by one employee against another, the same principles would apply to claims brought by employees against their employer. To the extent that employees were permitted to bring such claims through the courts, it would impose significant additional obligations on many employers.
When considering any employee privacy-related issues, an employer should ensure that:
- 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 rights in Canada is evolving quickly. Staying ahead of the curve requires taking proactive steps to ensure that your practices don’t leave you open to either new or existing types of claims — whether through the courts, labour arbitration, or under privacy legislation.