Minding Your Own Business: The impact on the workplace of the recent court decision (Jones v. Tsige) creating a right to privacy

The Ontario Court of Appeal recently released Jones v. Tsige, a landmark decision recognizing a right to sue for invasion of privacy. This decision will have a profound impact on many areas of labour relations, such as workplace surveillance, drug and alcohol testing, access to medical information, and e-mail and Internet monitoring. Lancaster’s panel of experts will discuss the wide range of effects this decision will have for employers and employees. Questions to be addressed include the following:

• Privacy and Workplace Surveillance: What effect will this decision have on video surveillance by management in the workplace? Employer access to phone records? Biometric data? When can an employer now conduct surveillance of off-duty employee conduct?
• Privacy and Workplace Monitoring: What effect will this decision have on management access to computer records? E-mail? Internet usage? Will employers have the ability to access employee social media records, such as Facebook profiles?
• Drug and Alcohol Testing: Will the decision in Jones affect an employer’s ability to conduct drug and alcohol testing? What impact will the decision have on the approach of arbitrators when balancing the safety and business interests of employers against the privacy rights of employees? To what extent will the issue depend on the expectations of the parties and the just cause language in the collective agreement?
• Privacy and Access to Medical Information: Will the decision in Jones place further limits on employers’ access to employees’ medical information? What is the impact of the decision in light of legislation relating to the privacy of medication information, such as Ontario’s Personal Health Information Protection Act?
• Pre-Employment Screening, References and Background Checks: Will Jones change the way employers conduct background checks? Will employers be required to change the way they contact references or provide references? Can employers conduct credit checks on potential employees? Criminal record checks?
• Privacy and Personal Appearance: How will this decision affect employer rules about appearance or dress? Will this decision change the way arbitrators balance the privacy rights of employees against the legitimate business interests of employers? Can an employer now justify a rule regarding appearance if the rule will affect the employee’s appearance off duty, in private life?
• Damages: How should damages be measured in a successful invasion of privacy case? How will arbitrators apply the decision in Jones to union and employee grievances based on invasion of privacy? Will arbitrators and courts take the same or a different approach in their assessment of damages? What measure of damages has been applied in other provinces where privacy has been given legislative recognition?
• Other Issues: Can employees sue one another for intrusion upon seclusion? Can an employee sue an employer, and vice versa? How will a case, based on the Jones decision, be affected by existing privacy legislation, such as the Personal Information Protection and Electronic Documents Act? Will an employer be vicariously liable if an employee breaches the privacy of another employee? Does the recognition of the common law tort of privacy add anything to the privacy rights of employees in those provinces, such as British Columbia, where privacy has received statutory recognition? In applying the common law tort of invasion of privacy, what leeway do arbitrators have to adapt the common law tort in a labour arbitration context?