CASE LAW:

1. R. v. Cole, 2012 SCC 53 - Employee’s reasonable expectation of privacy when using

employer technology
Facts:
The accused was a high school teacher who was allowed to use a school-owned laptop computer
for personal use. A technician tasked with maintaining the computer on behalf of the school
discovered nude photographs of an underage female student on the hard drive. He turned the
computer over to the school principal who subsequently turned it over to police.

Issue:

The issue was whether the accused had a reasonable expectation of privacy in regard to the
contents of the laptop, whether his right to be free from unreasonable search and seizure had
been infringed, and whether the evidence should be excluded under Section 24(2) of the Charter.

Held:

In the decision, the SCC determined that the police acted unconstitutionally in obtaining
evidence from the employer without a warrant; however, in the circumstances of the case, the
evidence should not be excluded at trial. The case also includes some valuable lessons for
employers regarding privacy in work-issued computers.

2. Jones v. Tsige, 2012 ONCA 32 - Tort of invasion of privacy and intrusion upon seclusion

Facts:

The defendant, Winnie Tsige, was a bank employee, who involved a dispute with her former
partner, who was the plaintiff’s former husband. Over a four year period she accessed the
plaintiff’s banking records more than 174 times. The accessed information included not only
transaction details, but also address, date of birth, and marital status. No information had been
published, distributed, or recorded by the defendant in any way. However, access to the banking
records allowed the defendant to determine whether—and how much—child support was being
paid between the former spouses.

The plaintiff brought a claim for invasion of privacy, seeking general and exemplary damages
and an injunction. The first instance judge decided that no tort of invasion of privacy existed at
common law in Ontario. The plaintiff appealed.

Issue:

Does Common law recognize a cause of action in tort for invasion of privacy - invasion of
privacy.
Held:

The Court of Appeals for Ontario reversed and remanded the lower court’s decision, recognizing
the common law tort of “intrusion on seclusion” for the first time in Ontario. In reaching its
decision, the Court looked to general trends of Canadian and international law and concluded
that both Canadian law and general legal trends are increasingly concerned with protecting the
privacy interests of individuals. The Court also looked to the Canadian Charter of Rights and
Freedoms and concluded that the right to privacy set out in the Charter endorsed the Court’s
recognition of a common law tort protecting privacy. The Court articulated that, in order for a
tort claim based on invasion of privacy to succeed, it must be brought against “[o]ne who
intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs
or concerns.” Such an intruder will be “subject to liability to the other for invasion of his privacy,
if the invasion would be highly offensive to a reasonable person.”

3. Fasken Martineau DuMoulin LLP v. McCormick, 2012 BCCA 313 – Partnership cannot
discriminate against partners

Facts:

Michael McCormick was an equity partner in the Vancouver offices of Fasken Martineau
Dumoulin LLP (“Fasken”), an international law firm operating as an extra-provincial limited
liability partnership under British Columbia’s Partnership Act. Fasken’s partnership agreement
required equity partners to retire at the end of the year in which they turn 65, subject to the
discretion of the firm’s managing partner. McCormick turned 65 in March of 2010. Prior to that,
he had discussions with the managing partner regarding the possibility of continuing to practice
as a lawyer in the partnership beyond reaching age 65. No agreement was reached permitting
him to continue in the partnership and he was therefore expected to retire at the end of the year in
which he turned 65.

Held:

The Court held that the existence of an employment relationship was determined by reference to
control exercised by the employer over working conditions and remuneration and a
corresponding dependency on the part of the employee. The partner was not in a position of
dependency; he was not vulnerable to the partnership’s control or subordinate to it in any way.
He was a member of the group that controlled the partnership, with rights to participate in its
management and to benefit from other control mechanisms. While the legislation was to be
interpreted broadly to achieve its intended purpose, it could not be interpreted as extending
protection to this relationship. The Court did not rule out the possibility that a partner could be
found to be an employee of a partnership if the required elements of control and subordination
were present on the facts.

4.Devaney v. ZRV Holdings, 2012 HRTO 1590 - Family status discrimination; mandatory
elder care
Facts:
Devaney is an architect, who was employed by ZRV Holdings until 2009. Devaney also
provided elder care to his mother, through a flexible work arrangement that ZRV had permitted.
However, as his mother’s condition worsened, ZRV believed that his productivity was being
affected. On numerous occasions, ZRV told him that he would need to spend more time in the
office, or he would be fired. Unfortunately, Devaney was not able to do so, and he was fired,
allegedly with cause. Devaney brought a human rights complaint, alleging that ZRV had
discriminated against him on the basis of family status.
Held:
Finding that ZRV had failed in accommodating Devaney, the Ontario Human Rights Tribunal
awarded $15,000 in damages. This case makes clear that “family status” as defined under
the Human Rights Code includes elder care obligations.