A recent decision of the Ontario Superior Court confirms that an employer finding out their employee was acting against its interests and then dismissing them is not an intrusion of their privacy. In Wakeling v. Desjardins General Insurance Group Inc., Healey J., was faced with simultaneous motion by the parties to strike, and amend, the plaintiffs’ statement of claim against Desjardins and its internal counsel.

While there was A LOT going on in this claim, Healey J.’s comments relating to intrusion upon seclusion are probably the most interesting. In finding that there was no prospect of success for these claims, she performed a thorough analysis that should bring some comfort to employers who are seeing an increase in these types of overly broad privacy claims.

The Facts

The facts of this case are particularly interesting. The claim involved two plaintiffs, Wakeling, and  Evison. Evison was involved in a dispute over statutory accident benefits with her insurer, Desjardins. Wakeling was Evison’s friend and a long-term employee of Desjardins.

There were two defendants, Desjardins, and its in-house counsel Costantino. Costantino represented Desjardins in the accident benefits dispute with Evison.

Evison disputed Desjardins denial of certain benefits by filing an application with the Licence Appeal Tribunal, an administrative tribunal with the jurisdiction to hear these disputes.  As part of its process, the LAT scheduled a case conference to take place between Evison and Desjardins in May 2019. Wakeling attended the teleconference for the purpose of acting as Evison’s aide. Wakeling was on vacation at the time. Costantino was present as the legal representative of Desjardins, as were Desjardins’ adjusters.

The LAT disclosure requirements mandated that the parties exchange witness lists prior to the hearing. Wakeling’s name appeared on Evison’s witness list. This was provided to Desjardins. In her role as its counsel, Costantino informed Desjardins of the names on the witness list.

On her return from vacation Wakeling was advised by Desjardins that she was being investigated. Shortly thereafter Desjardins terminated Wakeling’s employment.

The Plaintiffs alleged that both defendants had committed the tort of intrusion upon seclusion. In Wakeling’s case, she alleged that Desjardins had invaded her privacy by allowing her information to be transmitted to Desjardins human resources department who subsequently used that information to terminate her employment.

In dismissing the privacy claims against the defendants, Healey J., outlined the following requirements for the tort of intrusion upon seclusion:

  1. The defendant’s conduct must be intentional;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. A reasonable person must regard the invasion as highly offensive causing distress, humiliation or anguish.

For a motion to strike, the analysis is based solely on the pleadings and the allegations are assumed to be true.

The Intentional Act (or lack thereof)

The statement of claim alleged that the defendants individually or collectively disclosed the witness list to Desjardins management who then used that information for a purpose beyond the LAT proceeding. The claim alleged that the Desjardins’ management personnel “went into” or “intruded” into the accident benefits file containing the witness list and used that information to fire Wakeling.

Healey J., found that, even if true, this was not an intentional act. Evison gave the witness list to Desjardins and Costantino before the teleconference. Wakeling appeared at the teleconference of her own volition. There was no suggestion that either defendant compelled or caused either of these acts to occur. The plaintiffs were the active parties in providing the information. This was not the type of intentional intrusion, physical or otherwise, that was required to satisfy the first branch of the test.

The Unlawful Invasion of Private Affairs (or lack thereof)

The second branch of the test has three elements (1) an invasion, (2) of private affairs or concerns, (3) without lawful justification.

Healey J., found that the facts as pleaded could never be considered an invasion. Desjardins did not have to “go into” the accident benefits file; it was a party to the proceeding who received the witness list provided. Both defendants were passive recipients of the information that Wakeling would be a witness; Desjardins as a party, and Costantino as counsel to Desjardins. The information was not private. Wakeling’s presence at the teleconference or on the witness list for the LAT proceeding was not concealed in any way. Even though Wakeling’s attendance at the case conference was initially known only to its counsel and adjusters in attendance, it could never be successfully argued that, as a party to the proceeding, Desjardins was not entitled to have that information.

The plaintiff attempted to argue that Desjardins should have made “firewall’ between the AB file and the rest of Desjardins’ management. The judge made short work of this argument. Healey J., found that the argument that Desjardins should not have shared the information related to Wakeling with itself had no basis in law in the circumstances.

In addressing the second element of “private affairs” Healey J., found that a witness list and Wakeling’s attendance at the case conference, is not the sensitive personal or medical information the tort is meant to be responsive to.

For good measure, Healey J., also noted that there was a “legal justification” because the provision of witness lists was mandated by the Tribunal. Where the law mandates disclosure, the tort cannot be made out.

Highly Offensive Behaviour (or lack thereof)

Initially, the plaintiffs failed to plead the final element of the claim, that the intrusion was highly offensive and caused distress when viewed by an objective party. They tried to add this element in their cross motion.

Healey J., found that a reasonable person viewing the matter objectively would not consider the alleged intrusion – Desjardins learning that Wakeling intended to act as a witness in Evison’s LAT proceeding as a result of information provided by Evison – as “highly offensive”. 

A Final Word on “Dissemination” and “Breach of Confidence”

The plaintiffs’ claims against Constantino alleged that she intruded upon Wakeling’s private affairs and disseminated and misused the private information. Healey J., rightly pointed out that “intrusion upon seclusion” does not care about dissemination or the use of private information. It is the intrusion that is tortious.

In dismissing the plaintiff’s motion to amend the claims to include “breach of confidence”, Healey J. found that the facts as outlined could not possibly support the required elements of (1) confidential information being conveyed, (2) it was conveyed in confidence, and (3) it was misused by the individual it was communicated to, to the detriment of the plaintiff.

Healey J.’s succinctly noted that no reasonable person would expect the fact of Wakeling’s attendance at the teleconference or hear appearance on the witness list to have the necessary qualify to confidentiality. As a party to the proceeding, it was Desjardins itself who received the information. Similarly, there was no “misuse” by Constantino in sharing this information with her client, a party to the proceeding. This was not “misuse” but a central obligation as her role as counsel.

Conclusion on Intrusion

There are a few main take-aways from this decision:

  1. The tort of intrusion upon seclusion is about the intrusion, not the subsequent use of the information.
  2. It is not an intrusion if the information is provided by the employee to the employer;
  3. An employee’s participation in a proceeding is not “private” information;
  4. Learning that an employee is acting against their employer’s interests is not “highly offensive”.

This decision is an excellent reference for organizations and their counsel who are facing a growing number of claims that include intrusion upon seclusion as a “one size fits all” cause of action. This decision illustrates that intrusion upon seclusion should be seen as applying to a narrow range of situations and is generally inappropriate for situations where the parties have a pre-existing relationship where the information in dispute is readily available to the “intruding” party.

On a final note, as a lawyer who regularly deals with employment, privacy, and statutory accident benefits matters, this decision was my unicorn. It is an excellent example of the unexpected and often unexamined issues that can arise when these areas overlap.  It also stresses the importance of properly drafted pleadings and the need to take a hard look at the potential individuals involved and whether their inclusion as a party is truly necessary.

See Wakeling v. Desjardins General Insurance Group Inc., 2020 ONSC 6809 (CanLII), 

Devan Marr

As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.

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