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CCCA_V6No2_Col-McCarthys-FIN_CCCA_V6No2_Col-McCarthys 5/24/12 12:38 AM Page 52 Legal Update – McCarthy Tétrault LLP What employers need to know about the “new” tort of breach of privacy. By Erica J. Baron n January 18, 2012, the Ontario Court bank so as to avoid facing a well-funded or an employee. It should be made clear Oof Appeal (ONCA) released a decision defendant. However, now that this tort has that the only possible circumstances in explicitly recognizing, for the first time in been clearly recognized as part of the com- which it is appropriate for an employee to Ontario, a tort for the invasion of personal mon law of Ontario, there are potential access personal and private information privacy in the case of Jones v. Tsige, 2012 implications for organizations, rather than about another individual is for legitimate ONCA 32. just individuals, arising from this decision, business purposes of the organization. The case arose whenTsige, an employee particularly on the basis of vicarious liability. 3. Take immediate steps to punish individ- of a bank, accessed (but did not disclose to Whether an organization will be found uals who are discovered to have breached anyone else) private information about to be vicariously liable for the conduct of any such policy.This might not prevent a Jones, the former wife of Tsige’s ex- its employees, even if there has been an finding of vicarious liability but it may boyfriend. Jones was both a customer and intentional act on the part of the employ- act as a deterrent for future cases. an employee of the bank.While Tsige had ee,is a factual determination.The Supreme access to information about bank cus- Court of Canada in Bazley v. Curry, [1999] Furthermore, while not raised by this tomers for the purposes of her job, there 2 S.C.R.534 set out the relevant factors to case, the ONCA appears to have accepted was no business reason for Tsige to access be considered: that there are three other circumstances Jones’s information; to the contrary, it was 1. the opportunity that the employer where a tort of breach of privacy may be done for purely personal reasons. After a afforded the employee to abuse his or found.The four categories are: lengthy review of legal literature, jurispru- her power; 1. intrusion upon the plaintiff’s seclusion dence and statutes related to breach of pri- 2. the extent to which the wrongful act or solitude, or into his private affairs; vacy from other jurisdictions (British may have furthered the employer’s aims 2. public disclosure of embarrassing pri- Columbia, Saskatchewan, Manitoba and (and hence be more likely to have been vate facts about the plaintiff; Newfoundland all have statutes providing committed by the employee); 3. publicity which places the plaintiff in a for a statutory right to sue for damages 3.the extent to which the wrongful act was false light in the public eye; and arising from a breach of privacy),Jones was related to friction,confrontation or intima- 4. appropriation,for the defendant’s advan- awarded $10,000 in damages (although was cy inherent in the employer’s enterprise; tage, of the plaintiff’s name or likeness. not awarded any costs given the novel issue 4. the extent of power conferred on the raised by the case) for the tort of“intrusion employee in relation to the victim; and No doubt individuals will be embold- on seclusion.” 5.the vulnerability of potential victims to ened by the ONCA’s decision, and what While the breach at issue occurred at the wrongful exercise of the employee’s power. was once viewed as litigation with little Bank of Montreal, it is noteworthy that the likelihood of success may be viewed as Bank of Montreal was not a defendant to the Organizations might consider the fol- worth pursuing. While the damages that proceeding. It is, however, noted by the lowing steps in the hopes of avoiding flow from this tort may be limited, the ONCA that the Bank of Montreal had in vicarious liability: reputational impact of such litigation place a Code of Business Conduct and Ethics 1. Take steps to limit access of employees to could be significant for organizations, par- which prohibited this type of behaviour,and personal and private information of cus- ticularly those who cannot demonstrate also took steps to discipline Tsige upon tomers and other employees to the their proactive steps to prevent such learning of her behaviour.It may be that the extent reasonable. breaches by their employees. plaintiff believed that this would provide a 2. Institute written policies instructing defence to a vicarious liability claim. employees about appropriate and inap- Erica J. Baron is a partner in McCarthy Alternatively, it may have been that the propriate use of personal and private Tétrault's Litigation Group inToronto. Her gen- plaintiff did not wish to sue her employer. information,which the organization may eral litigation practice focuses on complex commer- Finally, given the novel nature of this claim, have collected as a result of their relation- cial disputes, medical malpractice defence and the plaintiff may have elected not to sue the ship with an individual, be it a customer estates and trusts litigation.(ebaron@mccarthy.ca) 52 CCCA Canadian Corporate Counsel Association SUMMER 2012