Employer liable after employee breaches privacy legislation: Court

Power company employee checked records of cousin's house
|Canadian Employment Law Today|Last Updated: 06/15/2011

A Saskatchewan employer may have to assume some responsibility after an employee breached another person’s privacy while on the job, the Saskatchewan Court of Appeal has ruled.

Saskatchewan’s Privacy Act says that “it is a tort...for a person wilfully and without claim of right, to violate the privacy of another person.” There have been few reported decisions about the legislation and its application to the employment context is largely undefined. However, in Bigstone v. St. Pierre, the court indicated that it is possible for an employer to be vicariously liable for an employee’s actions if the employee violates another person’s privacy.

The dispute in this case involved the plaintiff, Garnet St. Pierre, and his cousin, Patricia Bigstone. St. Pierre obtained title to their grandmother’s house but Bigstone claimed St. Pierre obtained it through illegal means and brought a lawsuit to set aside the transaction for being unconscionable.

While the first lawsuit was going on, Bigstone, who worked for Saskatchewan Power Corporation (SPC), accessed SPC’s records to see if the house had been rented to a third party. St. Pierre brought a second lawsuit against Bigstone claiming that this amounted to a violation of the Privacy Act. He also sued SPC, alleging that it was vicariously liable for Bigstone’s actions. Bigstone and SPC brought a motion to dismiss the action on the basis that St. Pierre’s claim disclosed no reasonable cause of action.

The Court of Appeal ruled that St. Pierre’s lawsuit had some chance of success if it proceeded to trial, therefore it could not be struck out at the preliminary stage. In doing so, the court articulated some of the requirements of a successful claim under the act:

•The alleged privacy violation is that of a person.
•The type of privacy interest violated is generally identifiable.
•The violation is wilful and without claim of right.

Employers should be aware they can potentially be found liable for privacy breaches under the Privacy Act. Not only can they be found vicariously liable for their employees’ actions, they can also be directly liable for violating their employees’ privacy. See Bigstone v. St. Pierre, 2011 CarswellSask 193 (Sask. C.A.).