In the digital age it is almost inevitable your employer will have electronically stored personal records regarding you. This can lead to increased access to your personal file by co-workers. Some may even have constant access to your file, for instance due to their management role or job duties. Despite this, you still have informational privacy rights, which can be enforced by the courts if a privacy violation occurs.

The Employer

If you suspect that your private information is being accessed by a co-worker, the first step is to inform your employer. They have duties to protect your information and should take steps to ascertain whether such a breach occurred, and then to correct the situation going forward if so.

The Coworker

Even if the employer takes steps to protect your information going forward, that may not correct the breach of your privacy that already occurred. In such a situation you may want to bring a legal claim against your co-worker based on the legal principles from the Ontario case of Jones v Tsige. 

Jones v Tsige

In Jones, a bank employee became suspicious that a co-worker had accessed her personal records and made a complaint to her employer. The bank discovered the co-worker in question had illicitly accessed the plaintiff's financial records over 174 times over 4 years. The bank suspended the co-worker and denied her a bonus, but the plaintiff  decided to personally sue the co-worker for invasion of personal privacy. The co-worker openly admitted her guilt and acknowledged that she was in breach of bank policy. She also was fully aware how her actions violated both her professional responsibilities and the privacy rights of the employee. While the co-worker's motivations remained unclear, it was noted that she was in a common-law relationship with the plaintiff's ex-husband.

Initially, the judge dismissed the case claiming that Ontario provincial law offered no free-standing right to privacy at common law. Further the privacy legislation only dealt with government and public institutions, not privacy between individual people or individuals and private employers.

However on appeal the Court addressed the fundamental human right to informational privacy, and stated it was worthy of lawful protection. A new tort of invasion of privacy was introduced: “intrusion upon seclusion.” This allowed the employee to hold her co-worker personally accountable for the invasion of privacy.  The co-worker was held liable and the employee was awarded $10,000 in damages.

Intrusion Upon Seclusion

In Jones v Tsige the Court of Appeal set out a test for when intrusion upon seclusion will be established. It requires the following to be met:

1. the defendant's conduct must have been intentional, including recklessness;
2. the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
3. a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

If the above elements are met than an individual will be able to establish a breach of their informational privacy rights.

Conclusion

If you are concerned an employer or co-worker is breaching your right to informational privacy meet with us. We can review your situation and advise you on the right path forward.

About the Author

Dan Howitt assists both employees and employers with managing all phases of the employment relationship.  His focus is helping clients achieve a fair and cost effective solution to their employment related problems. His emphasis is on negotiation and settlement.  If you would like to schedule a meeting with Dan or another lawyer, call us at 604-988-1000. We will be happy to help.