Desert island privacy cases for employment lawyers


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  • Let’s start our second half by going off to a desert island And, of course, life on a desert wouldn’t be perfect enough without practising a little employment law And lucky for us, this one just happens to be subject to Ontario law and the jurisdiction of our superior court Anyway… I’ve been asked to talk about case law that governs the rights and obligations of the non-unionized workplace in Ontario… And I’ve picked three “desert island” cases Ones that are not necessarily new… but are important to know -Colwell… from December 2008 -Somwar… from 2006 -And Ferenczy… from 2005
  • Before we get into them let me just say that its the statutory gap that makes this presentation relevant What do I mean about the statutory gap? Well… THE ONLY EMPLOYEES IN ONTARIO WHO ENJOY THE PROTECTION OF A PRIVACY CODE ARE FEDERAL SECTOR EMPLOYEES MFIPPA and FIPPA, our public sector privacy statutes, for the most part do not give public sector employees statutory privacy protection This is on account of an exclusion provision in both Acts that has been interpreted broadly by the Court of Appeal in the 2001 Solicitor General case And PHIPA does not regulate the collection of health information by employers for employment-related purposes except to require that they seek and abide by consent – I’m paraphrasing… but the statutory reference is section 49… consistent with section 63 of the OHSA It’s what makes it important for Ontario employment lawyers to watch judicial attitudes towards workplace privacy
  • COLWELL -I didn’t put this here because it’s significant in any principled way -It’s significant because it proves a theory of liability that has long been a basis for opinion -The facts, if you recall, were about surreptitious video surveillance of an employee with no proven basis -Constituted a fundamental breach of the employment relationship -So if you advise management like me… when this came out you might have been thinking back to your prior advice and saying… good… I’m not a wimp -Let me leave you with two more useful sentiments though… Despite Colwell, think about whether constructive dismissal is a practical constraint on management rights… there may be legal risk but are people really going to quit and sue… different kind of risk than one that flows from rights backed by an administrative regime and express whistleblower protection Think about the relevance of contract and policy to privacy expectations Courts have embraced the reasonable expectation of privacy concept Is a limiting doctrine… must have one to get in the door…. Though it is arguably normative, and about what ought to be done in the reasonable workplace, courts can and do look to actions taken to shape expectation
  • SOMWAR This is very well known… unlike Colwell its on the list because it has a ratio that is significant Ratio – an action founded on invasion of privacy should not be struck as disclosing no reasonable cause of action Facts are significant because they make it a pure information privacy case – about an allegedly unlawful collection of credit history information Information privacy protection doesn’t fit under the traditional was in which courts have protected privacy… -privacy related wrongs to property are protected in nuisance and the misappropriate ion of personality -privacy related violations of the person - harassment. assault -harm to reputation as a kind of privacy violation - defamation -collection of information doesn’t fit into any of these nicely -no doubt Madam Justice Stinson’s judgement was about information… talked about need for regulation of collection, access and dissemination of information in the information -said it strongly. .the time has come to recognize invasion of privacy as a tort in its own right -the clarity of the pronouncement and its currency that makes Somwar authoritative -go back you’ll see superior court cases that say the opposite -Don’t have great law on how to plead -reasonable expectation of privacy -violated -violated intentionally -violated without justification -no consent -no purpose based in public interest -no other justification at law
  • -last one is a bit of cheater -evidence case -How many of you also practice in labour -Know that some arbitrators… have excluded evidence on the basis that it was obtained in breach of a privacy right -This case says pretty strongly that, in a court of the answer is no… -Traditional view… explained in the Sopinka evidence text as the inclusionary rule of evidence… how it is obtained does not affect its probative value… illegality should not upset the truth seeking function of the court… the only exception to this (aside from the Charter) is derived from the law of privilege… which is a very conservative doctrine (National Post case from a month a go) -leave you with a couple of caveats on alternative remedies -gets more interesting… simple case and make it -Add a privacy claim to the SOC -Ask for relief from deemed undertaking to file PIPEDA complaint -Last bullet is a little misleading -If a document is private and privileged… one option is to move to get it back -Ashburton motion or injunction (from English case Ashburton v. Pape) -One form of remedy you can seek if you inadvertently disclose privileged information and an opposing party won’t give it back… other ways of seeking a remedy
  • Desert island privacy cases for employment lawyers

    1. 1. Desert Island Privacy Cases for Employment Lawyers Dan Michaluk June 15, 2010
    2. 2. Desert Island Privacy Cases <ul><li>Privacy rights for the non-union employee in Ontario? </li></ul><ul><ul><li>Federal sector employees have PIPEDA </li></ul></ul><ul><ul><li>Public sectors employees have no real protection under MFIPPA and FIPPA </li></ul></ul><ul><ul><li>One provision in PHIPA protects employees as employees, which dovetails with the OHSA </li></ul></ul><ul><ul><li>So the judge-made law is very relevant </li></ul></ul>
    3. 3. Desert Island Privacy Cases <ul><li>Colwell v. Cornerstone Properties (2008) </li></ul><ul><ul><li>First case to find a constructive dismissal based on a privacy breach </li></ul></ul><ul><ul><li>Relatively extreme facts </li></ul></ul><ul><ul><li>Demonstrative of a sound theory of liability </li></ul></ul><ul><ul><li>Question – how much can employers use policy and contract to shape the expectation of workplace privacy? </li></ul></ul>
    4. 4. Desert Island Privacy Cases <ul><li>Somwar v. McDonald’s Restaurants (2006) </li></ul><ul><ul><li>Action founded on invasion of privacy tort should not be struck as disclosing no reasonable cause of action </li></ul></ul><ul><ul><li>Recall that this was a claim by a current employee (and manager at that) </li></ul></ul><ul><ul><li>Elements of tort not defined, but will likely hinge on a breach of a “reasonable expectation of privacy” </li></ul></ul>
    5. 5. Desert Island Privacy Cases <ul><li>Ferenczy v. MCI Medical Clinics (2004) </li></ul><ul><ul><li>PIPEDA does not change traditional inclusionary rule of evidence </li></ul></ul><ul><ul><li>But Charter-bound employers can face 24(2) issues </li></ul></ul><ul><ul><li>What about a motion to give it back and refrain from any use? </li></ul></ul>
    6. 6. Desert Island Privacy Cases for Employment Lawyers Dan Michaluk June 15, 2010