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Tort Claims

Ontario Court of Appeal to consider tort of invasion of privacy in work context case

Jurisdiction: - Ontario

The Law Times ran a story ("Appeal court to consider privacy tort") today on the decision in Jones v. Tsige, 2011 ONSC 1475.

It is a case concerning two employees of the Bank of Montreal who worked at different branches. Over the course of four years, one employee (the "Defendant") accessed the personal banking information of the other employee, who was also a customer of the bank (the "Plaintiff"), on 176 occasions. 

Rather than filing a complaint with the federal privacy commissioner under PIPEDA, and ultimately going to the federal court for recourse, the Plaintiff sued the Defendant for the common law tort of invasion of privacy.

In its decision issued on March 23, 2011, the Ontario Superior Court of Justice, citing precedent, ruled that there is no tort of invasion of privacy in Ontario.

The Ontario Court of Appeal will now have an opportunity to weigh in on this issue.  read more »

"Anti-Bullying Legislation"

Robyn Durling of the BC Human Rights Coalition prepared a paper on, "Anti-Bullying Legislation", for the Human Rights Conference (Continuing Legal Education Society of British Columbia) in November 2010.

“'I’m Being Sued For What?!' Deconstructing the Different Damages in an Employee’s Statement of Claim"

Genny Na and Naomi E. Calla, lawyers at Borden Ladner Gervais in Toronto, have prepared a paper entitled,  “I’m Being Sued For What?!” Deconstructing the Different Damages in an Employee’s Statement of Claim".

The paper was written for the firm's 13th Annual Labour & Employment Group Symposium held on November 4, 2010.

The authors have attached to the paper an extremely useful, and comprehensive, chart that lists court decisions in Canada from 1984-2010 where "excess damages" (aggravated, bad faith, punitive, etc.) have been awarded.

Supervisor's defamatory appraisal of dismissed employee protected by qualified privilege

In Dawydiuk v. Insurance Corporation of British Columbia, 2010 BCCA 353, the BC Court of Appeal addressed whether the contents of an email written by a dismissed employee's supervisor were defamatory and , if so, whether they were  protected by the defence of qualified privilege.

Background 

Ms. Dawydiuk began her employment with the Insurance Corporation of British Columbia ("ICBC") in 1988 as a clerk. At the time of her dismissal in 2004, she was 38 years-old and in a managerial position.

Ms. Dawydiuk had been off work since June 2003, first on a sick leave and then on a maternity/parental leave.  She was scheduled to return to work on October 4, 2004.

On July 5, 2004, while still on leave, Ms.Dawydiuk was phoned by her supervisor and advised of a restructuring that had resulted in her position being eliminated. Her supervisor advised her of two other available managerial positions, however, and asked her to let him know which one she would like.  read more »

"Arbitral Jurisdiction over Tortious Privacy Violations"

Jurisdiction: - British Columbia

"Arbitral Jurisdiction over Tortious Privacy Violations" (June 18, 2010) is the title of the paper that Pamela R. Costanzo and Stephanie T. Mayor, of Black Gropper in Vancouver, presented at the Labour Relations Conference - 2010.

The conference was put on by the Continuing Legal Education Society of British Columbia in Vancouver, BC. The paper:

...examines whether an arbitrator appointed under the Labour Relations
Code
would have jurisdiction to apply the BC Privacy Act, or award a remedy
under it. It examines the historical development of the arbitral jurisprudence
on breach of privacy. It also considers whether a common law tort of breach of
privacy exists, and what alternative torts, and remedies, are available to
plaintiffs who have experienced a breach of privacy in the context of
employment.

Tort of negligent infliction of mental suffering not available in employment context, ONCA rules

In an important decision that came out on May 28, 2010 - Piresferreira v. Ayotte, 2010 ONCA 384 - the Ontario Court of Appeal ruled that employees cannot sue their employers for the tort of negligent infliction of mental suffering, at least in Ontario.

Background

At the time of the incident that led to the termination of her employment with Bell Mobility, the plaintiff, Ms. Pieresferreira, was an Account Manager, had 10 years service, was 60 years olds, and had received mostly excellent performance reviews.

As set out by the Court of Appeal, her supervisor, Mr. Ayotte, was a "critical, demanding, loud and aggressive manager" who was known to "swear at employees, had a temper and would bang his fist on the table to make a point" (para. 5).  read more »

Dismissed employee can examine immediate supervisor; tort claim against affiliated company allowed to proceed

Jurisdiction: - British Columbia
Sector: - Forestry

The decision in Higginson v. Babine Forest Products Ltd., 2010 BCSC 614, concerned pre-trial applications in a wrongful dismissal lawsuit about the following issues:

  1. which employer representative should be required to submit to an examination for discovery and
  2. the court's jurisdiction over a US company affiliated with the employer, and a claim against that company for inducing breach of the employment contract.

The plaintiff had 34 years of service and was in a managerial position at a mill when he was dismissed. He was dismissed for failing to perform his duties.

In this decision, the court determined that:  read more »