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January 15 2014

Privacy in the Workplace: A New Tort is Born

"Over the last two years, courts have repeatedly addressed a new form of workplace violation. With these decisions they have begun transforming the face of privacy law in the workplace. With technology being a tool at the forefront of many workplaces, personal information has become vulnerable data requiring protection. In two recent cases, the Ontario Superior Court of Justice and the Court of Appeal for Ontario both recognized this vulnerability along with the existence of the tort of invasion of privacy in Ontario. This new tort was based upon an actionable ""intrusion upon seclusion"". The Court defined this intentional tort as being one where the intrusion into the seclusion of another person 's ""private affairs or concerns"" would be found as ""highly offensive to a reasonable person"". In terms of changes to employment law, these decisions added the welcomed caveat to an employer 's obligation to protect its employees ' privacy in the workplace. For employers, this change means that a breach of this obligation could potentially expose them to punitive damages up to $20,000. For employees, it means among other things, that they can have a ""reasonable expectation of privacy"" in their workplace while using technological tools provided by their employers in the course of their employment."