The recent decision of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, (on which Christian Paquette of our firm blogged on January 18th, 2012) has garnered much attention.  This is because it has formally recognized a tort for an invasion of privacy, labelled as Intrusion Upon Seclusion.  The question remains however how courts will interpret and apply this new tort. 

What is certain to be a long line of jurisprudence to mould and refine this concept has already begun to build. 

In the labour context, the concept was addressed in the recently released arbitral decision in Complex Services Inc. v. Ontario Public Service Employees Union. This case involved two separate grievances.  The first was a union grievance alleging discrimination against and harassment of an employee.  The second was an employer grievance which alleged that the Union and the grievor had not met their obligations with respect to the grievor’s disabilities and accommodation requirements.  In this second grievance, the employer argued that the grievor had unreasonably refused to provide further medical information that was requested and that in not doing so the grievor failed to fulfill her obligation to participate in the accommodation process.

The Ontario Court of Appeal had released its decision after the parties had submitted their written submissions.  Both parties subsequently made submissions on the matter in light of Jones v. Tsige.  The arbitrator accordingly commented on whether the Ontario Court of Appeal decision had any impact on the case.  Specifically, the arbitrator reviewed whether the tort of Intrusion Upon Seclusion had any impact on an employer’s ability to seek confidential medical information. 

The arbitrator’s answer? No.

The arbitrator specifically found that the tort of Inclusion Upon Seclusion did not go so far as to interfere with what were deemed to be reasonable requests on the part of the employer for medical information.  The arbitrator specifically stated the following:

 “It remains the case that an employer is entitled to request and receive an employee’s confidential medical or other information to the extent necessary to answer legitimate employment related concerns, or to fulfill its obligation under the collective agreement or legislation, including the human rights or health and safety legislation (for example).”

The arbitrator also stated the following:

“I agree with the Employer that nothing in Jones v. Tsige alters its right to manage its workplace(s), or to obtain confidential medical or other information as required or permitted by legislation or the collective agreement, or which it reasonably requires for a legitimate purpose.”

The arbitrator proceeded to review the type of confidential information generally permissible for accommodation purposes, including but not limited to information regarding the nature of the illness and whether a disability is permanent or temporary. 

It is still early to assess how this new privacy tort will be applied.  The first indication however, both from the Ontario Court of Appeal itself and the decision discussed above, is that there appears to be an appetite to limit the types of cases that will succeed at establishing the elements of this new tort. 

This is definitely an area of law we will be watching as we seek to understand its potential impact on our clients.