This presentation discusses the emerging tort of "intrusion upon seclusion" in Canada. It summarizes a key court case, Jones v. Tsige, that recognized this tort for the first time. The tort involves the intentional and unauthorized intrusion upon a person's private affairs or concerns in a manner highly offensive to a reasonable person. The presentation examines the implications of this new tort for corporate data security, computer monitoring, employer surveillance, private investigations, and litigation involving investigations. It advises employers to have clear, well-enforced policies governing access to employee information and electronic devices to reduce risks from this developing area of privacy law.

1. Intrusion Upon Seclusion
The New Privacy Tort and Your
Workplace
Joint HR/Legal Presentation
February 15, 2012
John Bruce and Dan Michaluk

2. Invasion of Privacy
• U.S. and U.K. courts have recognized torts
• Canadian courts more cautious to date
• Privacy interests protected under other torts –
defamation, nuisance, trespass
• Four provinces with limited statutory torts
• Misappropriation of personality tort (Ontario, 70s)
• Now, “intrusion upon seclusion” tort recognized
The Privacy Tort and Your Workplace

3. Jones v. Tsige
• Bank employee snoops on other bank employee’s
banking records
• Bank disciplines defendant, plaintiff sues
• Motion judge dismiss – no cause of action
• Court of Appeal recognizes tort, awards $10,000
in damages
The Privacy Tort and Your Workplace

4. Jones v. Tsige
One who intentionally intrudes, physically or otherwise, upon the seclusion of
another or his private affairs or concerns, is subject to liability to the other for
invasion of privacy, if the invasion would be highly offensive to a reasonable
person.
1. Intentional, unauthorized intrusion
2. Upon private affairs or concerns
3. Highly offensive to the reasonable person
The Privacy Tort and Your Workplace

5. What the Tort Is
• A personal tort
• Scope will reflect competing interests (free
expression, freedom of the press)
• No proof of damages required, but non-pecuniary
damages ordinarily no more than $20,000
• Court signals “highly offensive” relates to
sensitivity of information (e.g., financial records,
sexual practices and orientation, employment)
The Privacy Tort and Your Workplace

6. What the Tort Is Not
• About intentional disclosure of private information
• About asking for information (as employers do)
• A rule that governs the exclusion of evidence
The Privacy Tort and Your Workplace

7. Impact on Corporate Data Security
• Risks driven by pre-existing duties
• Breach of direct “supervisory” or “custodial” duty
based in negligence, fiduciary status, contract
• Reasonable safeguarding duty under legislation
• Are vicarious liability claims a practical risk?
• Employee snooping is a known, common risk that
you should address through access control
technology and well enforced policy
The Privacy Tort and Your Workplace

8. Impact on Computer Monitoring
• Things are changing… very quickly
• R. v. Cole raises questions about a reasonable
expectation of privacy arising out of personal use
• SCC will hear an appeal this year
• Tsige suggests that breaching a reasonable
expectation of privacy is not enough
• But don’t be a test case
The Privacy Tort and Your Workplace

9. Impact on Computer Monitoring
1. Articulate purpose for which you may access stored information
2. Make sure conditions tied to personal use are clear
3. Claim your interest in the entire system, including devices issued to
employees
4. Make clear that access controls are employed for the company’s
benefit
5. Make clear that passwords are to foster user accountability and are
for the company’s benefit
6. Deal with access to forensic information
7. Ban work on personal devices unless you develop a “BYOD” policy
that manages the risks
The Privacy Tort and Your Workplace

10. Employer Surveillance and Investigations
• Other potential intrusions?
• Desk searches
• Locker searches
• Bag searches
• In-plant/facility video surveillance
• Surveillance outside the plant/facility
The Privacy Tort and Your Workplace

11. Private Investigation Retainers
• An obvious risk that you ought to address
• Structure the decision to retain
• Reasonable grounds?
• Who decides?
• Structure the retainer
• Authorized means? Unauthorized means?
• Requirements (e.g., video only in public)
• Indemnification for breach
The Privacy Tort and Your Workplace

12. Investigations and Litigation
• Expect the tort to be plead where your cause case
rests on an investigation
• Expect claims from family members
• On the positive side, it’s an option for structuring
settlement payments for better tax treatment
The Privacy Tort and Your Workplace

13. Intrusion Upon Seclusion
The New Privacy Tort and Your
Workplace
Joint HR/Legal Presentation
February 15, 2012
John Bruce and Dan Michaluk