Thursday, January 19, 2012

Hello privacy! Ontario Tort law gets a sorely needed update

Employees in Ontario don't have much in the way of privacy rights, although one can argue that there's an implied duty of good faith in employment contracts under which privacy falls. While there are a smattering of statutes that cover privacy in certain situations (i.e. healthcare, dissemination of personal information), these laws haven't created a free standing right to privacy for employees in Ontario and there remains a large gap. This situation is problematic as young people are taking to the Internet in greater numbers and posting vast amounts of personal information online (often with horrible results).

Enter Jones v. Tsige, a decision released yesterday by Ontario's Court of Appeal which overturned a 2011 Superior Court decision penned by Justice Kevin Whitaker. The Court of Appeal created a tort of intrusion upon seclusion. This is a case where one Bank of Montreal employee, Winnie Tsige, accessed the financial information of another bank employee, Sandra Jones, 174 times over the span of four years. Ms. Tsige was in a relationship with Ms. Jones ex-husband and for unknown reasons wanted to snoop on financial information.

This decision is a badly needed development as legislatures across Canada have been hesitant to address privacy rights in a meaningful way that brings them in line with the realities of the information age. Often Courts are unfairly described as being activist, but this decision shows how the judges often have to bridge the gap between legislative stagnation and the realities of daily life. While this decision is great to have, much more needs to be done to address the privacy deficit in Ontario in areas such as social media, pre-employment Google searches and the intersection of human rights and privacy.

For additional analysis of this decision, see: Doorey's Law Blog has an article about the most recent decision and commentary on the lower Court's reasoning; Lisa Stam posted an article on her blog; and, David Fraser has written a great post over at the Canadian Privacy Law Blog. I would expect additional and more comprehensive commentary to appear shortly as people have time to digest the decision. I'll be posting additional information on my Twitter page so follow me and keep up with this developing issue.

Update: some great analysis on the case is starting to appear. Michael Power, one of Ontario's leading privacy experts, has posted a great analysis on his website; uber-blawger Omar Ha-Redeye has written an article about the case for Slaw; and, not to be outdone, David Doorey has written a blog post covering off the workplace law implications arising from the OCA decision in Jones v. Tsige.

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