Court File and Parties

COURT FILE NO.: CV-15-202 DATE: 2016Apr21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: John Stevens Plaintiff/Respondent – and – Glennis Walsh Defendant/Appellant

COUNSEL: Bryan G. Embree, for the Plaintiff/Respondent David Meirovici, for the Defendant/Appellant

HEARD: April 8, 2016 Justice R. John Harper

Issue and the Law

[1] This is an Appeal from the decision of Deputy Justice Forbes sitting in Small Claims Court that was issued March 23, 2015.

[2] The Appeal raises the following issues:

i. Whether the trial judge erred in finding that the tort of intrusion upon seclusion includes dissemination of private information; ii. Whether the trial judge erred in finding an "intrusion" despite the Appellant having permission to view the Flight Schedule; and iii. Whether the trial judge erred in finding that the Flight Schedule was "Private" information.

The Standard of Review

[3] The Standard of Review on questions of law alone is that of Correctness. Hausen v. Nikotulsen, 2002 SCC 1, [2002] S.C.J. No. 3.

General Principles of the Tort of Intrusion Upon Seclusion

[4] The leading authority on the tort of intrusion upon seclusion remains the Court of Appeal decision in Jones v. Tsige, 2012 ONCA 32, [2012] O.J. No. 148 (C.A.). In Jones, the Honourable Justice Sharpe confirmed the definition provided by the Restatement (second) of Torts (2010) at paragraph 19 as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another of his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

III. A reasonable person would regard the invasion as highly offensive.

[5] As a result, establishment of the tort of intrusion upon seclusion requires proof of three elements:

i. The Defendant’s conduct was intentional; ii. The Defendant must have invaded, without lawful justification the Plaintiff's private affairs or concerns; iii. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

Background

[6] The Appellant (Glennis Walsh) is a pilot of over sixteen (16) years' experience with Air Canada. The Respondent, John Stevens is also a pilot with Air Canada. Glennis is a friend of the Respondent’s estranged wife, Maura Stevens.

[7] An Air Canada website contains information about the schedules for pilots. It is a password protected site that only employees of Air Canada can access. Another website, called Crewsware, partially reflects the information on the Air Canada site. This site is also password protected. You must be employed at Air Canada to access the former but not the latter.

[8] The Crewsware site also creates family calendars. According to the testimony of John Stevens at the trial the family calendars can be created so that you can send the calendars off to friends and family so they know where you are. If you place someone on a “friends list” in the Crewsware site, your friends can see what your schedule is. Glennis Walsh was added by John Stevens to be a friend on the Crewsware site. Glennis Walsh testified that you had to be a pilot or flight attendant to be able to subscribe to Crewsware.

[9] Glennis admitted, in her testimony at the trial, that she accessed the flight schedule information of the Respondent, John, and that she disseminated that information to her friend Maura Stevens. Glennis also provided an affidavit in support of Maura Stevens in her divorce file. This affidavit contained the scheduling information of John that was taken off of the above mentioned websites.

[10] John Stevens’ complaint is not that Glennis accessed his schedule by using the above websites; his complaint is that she passed that information on to someone else.

[11] Glennis stated, in her evidence, that her friend Maura called her and she was very upset. She told Glennis that the extent to which her husband worked was an issue in her divorce. Glennis thought that Maura would have access to her husband’s schedules. However, Maura was so frantic that Glennis wanted to help her friend calm down and she accessed the site and gave the scheduling information to Maura and, subsequently, signed an affidavit setting out that same information. A complaint was lodged by John Stevens against Glennis to Air Canada. The union became involved. The Air Canada Employee Privacy Policy became a central issue within that complaint.

[12] The Air Canada Employee Privacy Policy reads, in part, commencing at p 23:

It is the Company’s policy to protect the personal information of its employee and to collect such information only for the purpose relevant to the Companies business. Upon request, employees have the right to have access to this personal information. Personal information means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee. Employee personal information refers to those records like the employee file and other documents collected and used to provide services or support like pay or benefits information.

All personal information must be protected by safeguards appropriate to the level of sensitivity of the information and may only be used for the identified purposes for which it was collected. Disclosure of an employee’s personal information without his/her consent is limited to those within the Company who require it for identified purposes or whose duties require it, or to third parties only in circumstances where required by law. All employees-both supervisors and non-supervisors-holding personal employee information must handle it in compliance with the privacy principles…

[13] The trial judge found at paragraph 9 of his Judgment:

The three elements of intrusion upon seclusion have been defined as follows:

1. An intentional conduct, which includes recklessness;
2. An invasion, without legal justification, of the Plaintiff’s private affairs or concerns; and
3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

I find all three elements have been made out by the Plaintiff.

[14] The trial judge did not give reasons as to why he found that the three elements of the tort had been made out. He went on to state in paragraph 10 that: “general damages are symbolic or moral damages. Herein, I find for the Plaintiff, and assess the damages in the amount of $1,500 on a symbolic or moral basis.” The trial judge ordered $300 costs of the one day trial. Neither the damages nor the costs were appealed if the Judgment were to be upheld.

Law and Analysis

[15] I find that the deputy trial judge did not give any reason for the finding that all of the elements of the tort of intrusion upon seclusion had been met. Nevertheless, in my view, after a review of the record, I find that all of the elements of the tort are satisfied.

[16] The policy of Air Canada, that must be followed by all employees, emphasises the privacy rights of the employees. This policy specifically prohibits any employee from disseminating personal information of another employee to third parties without express permission of the other employee. The sharing of personal information between employees is clearly restricted for work related purposes only. Permission to review and obtain this information is not given unless it is for work related purposes. If the information is reviewed and used for any other purpose, this results in conduct that constitutes an intentional invasion of the private affairs or concerns. In addition, I find that a reasonable person would regard this type of invasion of privacy as highly offensive and causing distress, humiliation and anguish to the person.

[17] For an employee to obtain information under the guise of review for legitimate work related purposes and to then use it by sharing it with the estranged wife of a colleague against the colleague in a divorce proceeding falls within the “significant invasions of personal privacy” that is referred to in paragraph [72] of the seminal case in the Ontario Court of Appeal Jones v. Tsige 2012 ONCA 32, [2012] O.J. No. 148 (C.A.).

[18] In McIntosh v. Legal Aid Ontario, 2014 ONSC 6136, 246 A.C.W.S. (3d) 928, Cornell J. was faced with similar circumstances as the case before this court. In McIntosh, the Defendant accessed the file for an improper purpose and not for an authorized work related purpose. Cornell J. found that the Defendant violated the procedures and protocols of Legal Aid.

[19] I find that the accessing of the information by the Appellant for non-work related purposes did amount to an intrusion. The dissemination of the information is corroborative of the improper access.

[20] For the above reasons the appeal is dismissed.

Harper, J. Released: April 21, 2016