No relief for victims of harassment – Ont CA

I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy. 

Rainy River (Town) v. Olsen, 2017 ONCA 605.

ONSC affirms damages award for “friend’s” leak of work schedule

On April 8th, the Ontario Superior Court of Justice affirmed a $1,500 damages award for a privacy breach that entailed the disclosure of information that the defendant received because she was the plaintiff’s social media friend.

The plaintiff and defendant were pilots who worked for the same airline. The plaintiff shared his work schedule with the defendant though an application that allowed him to share his information with “friends” for the purpose of mitigating the demands of travel. The airline also maintained a website that made similar information available to employees. The defendant obtained the schedule information through one or both of these sites and shared it with the plaintiff’s estranged wife.

There are a number of good issues embedded in this scenario. Is a work schedule, in this context, personal information? Does one have an expectation of privacy in information shared in this context? Does the intrusion upon seclusion tort proscribe a disclosure of personal information?

The appeal judgement is rather bottom line. In finding the plaintiff had a protectable privacy interest, the Court drew significance from the airline’s employee privacy policy. It said:

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.

The defendant did not appeal the $1,500 damages award.

John Stevens v Glennis Walsh, 2016 ONSC 2418 (CanLII).

Ontario arbitrator upholds discharge for Facebook postings

On May 15th, Arbitrator Trachuk upheld the discharge of a short service crane operator for posting disparaging and sexually explicit comments about a female coworker on his Facebook. The decision is fact specific and not surprising. Arbitrator Trachuk, however, does make the following statement about admissions and apologies (in the context of a social media offence) that is sensible and of note:

The union asserts that the grievor’s apology is another mitigating factor. The grievor did apologize to the company in his first meeting and offered to apologize to X. An admission and an apology are not exactly the same thing. An admission after a person has already been caught is not worth much. The grievor’s offense was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained. However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self-serving. That is why a grievor who wants to persuade an arbitrator about his sincerity will testify. This grievor did not. The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

United Steel Workers of America, Local 9548 and Tenaris Algoma Tubes Inc. (15 May 2014, Trachuk).

Complaint challenging timidity of employer response to attack blog dismissed

On January 22nd, the Ontario Grievance Settlement Board dismissed a group complaint alleging that an employer failed to respond appropriately to a union blog that attacked members of management.

Vice-Chair O’Neil heard the complaint. The following is her description of the content of the blog:

The more objectionable posts in evidence allege managerial corruption or negligence, such as never seeing inmates or having “screwed up” the previous attendance management program. Others insult managers in general, using terms such as useless, pathetic, vindictive, morons and misfits. Cartoons and comments referred to attendance management procedures and imposition of discipline as “kangaroo courts”. Suspensions for excessive use of force were referred to as attacks on people just trying to do their best, and it was suggested that the safety of the staff was never a concern. Mocking allusions to acquiescing to being strip searched were used to describe those in the union accused of lacking courage to take action against policies the blogger did not like. Staff who took acting assignments and worked overtime were criticized as siding with management, and managers who work significant amounts of overtime accused of having social problems. Pay for performance was characterized as bonuses for screwing up, and it was suggested that the superintendent and deputies would get a higher percentage of pay for performance the more short-staffed the institution was.

Some, but not all of the blog’s authors were identifiable. Nonetheless, the employer chose to take a measured approach to dealing with the blog and did not discipline any perpetrators. Instead, it authored a joint memo with the local union president that encouraged respectful conduct and issued its own warning letter to those responsible for the blog. The blog then became password-protected, which members of the targeted management group did not feel was an adequate resolution. They complained.

In dismissing the complaint, Vice-Chair O’Neil said the following about an employer’s duty to respond to workplace harassment:

In respect of providing a harassment-flee workplace, it is important to acknowledge that it is not humanly possible to prevent all behaviour that amounts to harassment, defamation or disrespectful behaviour towards employees. There are very real limits to the power of an employer to anticipate and control such behaviour even in the workplace, let alone outside its physical bounds. In recognition of this reality, the law does not make the employer responsible for all actions of its employees that have a negative impact on other employees. In the area of harassment in the workplace, arbitral case law has generally found, in the absence of a contractual provision requiring it to take particular action, that an employer will not be held liable unless it has been negligent or fails to act.

Vice-Chair O’Neil held that the employer did not fail to meet any specific requirement of the applicable policy and otherwise acted within its discretion.

Lee v Ontario (Ministry of CommunitySafety and Correctional Services), [2013] O.P.S.G.B.A. No. 1 (G.S.B.).

Municipality breaches privacy statute by communicating via Facebook

Last September 27th, the Newfoundland and Labrador OIPC held that a municipality breached the Newfoundland Access to Information and Protection of Privacy Act because an employee, in the course of her duties, identified the Facebook accounts of two members of the public and messaged them through her own Facebook account.

The OIPC held that this use of Facebook led the municipality to engage in an improper use of personal information and breach its safeguarding duty. One problem, according to the OIPC, was the use of a means of communication not governed at all by the municipality:

Facebook is a social media website that is accessible from any computer or device which is capable of accessing the internet. In this sense, the use of Facebook by the Town employee may be akin to the removal of personal information from the Town office. This is further exacerbated by the use of the employee’s own personal account to engage in this communication. From this perspective, the information must be protected in the same manner as used by other public bodies which allow for the removal of personal information from their facilities.

The OIPC made clear, however, that communicating personal information through a Facebook account in a public body’s name is also inappropriate. It said:

For the various security and identification issues outlined above, there is no way to ensure that personal information is properly protected on these websites. If an individual requests that communications with a public body be carried out in this manner, the public body must first satisfy itself that the identity of the Facebook account holder is confirmed, and furthermore that express consent be obtained from the individual acknowledging that the privacy of the communication cannot be guaranteed.

The OIPC gives little reasoning about why communicating through a Facebook account in a public body’s name is less secure than communicating through other kinds of corporate email services, but the concept of channelling communications that include personal information through a consumer service like Facebook (which is neither designed as an email service nor targeted at business) raises obvious concerns.

Report P-2012-001 (27 November 2012, OIPC Newfoundland).

Social media and the law – three nuggets and one blawger’s tale #ALC2013

I’m posting this from beautiful Edmonton, where I presented at the Alberta Law Conference social media session together with Diane McLeod-McKay (Alberta OIPC, Director, Alberta PIPA) and Doug Jasinski (Skunkworks Creative Group). Thank you to our Chair and warm host, uber-librarian Shaunna Mireau (Field Law). It was a nice balanced session, with a little marketing and communication, a little core privacy and a little “other,” all of which came together nicely to give helpful picture to our lawyer audience.

I was the “other.” My slides are below and deal with (1) the “licensed communicator” concept for governing business use of social media, (2) the social media civil production cases and (3) preservation of social media evidence. I also (as asked) spoke a little about my own blogging experience, an enjoyable first.

Facebook’s Graph Search: New Privacy Concerns?

According to a CBC News article (here), early reviews of Facebook’s new Graph Search feature are raising privacy concerns.  The search feature appears to be eerily effective in mining Facebook users’ information in responding to search queries.

For employers who may be considering using social media to verify information about current or prospective employees, the depth of information revealed by Graph Search highlights the risk that obtaining information through social media could amount to an invasion of privacy, or conflict with human rights laws (see the Ontario Human Rights Commission’s policy on using Facebook information).  Employers should tread carefully before using social media to obtain information about current or prospective employees, since the resulting information (even if obtained inadvertently) could create unanticipated liabilities.

Turn in the tide on Facebook photos as evidence?

I believe we’re seeing a slow retreat from the view expressed in Leduc v Roman, a 2009 Ontario case in which Justice Brown suggested photos on Facebook are presumptively relevant (in a non-production scenario) when a Facebooking plaintiff claims loss of enjoyment of life.

Stewart v Kempster is the new Ontario case that awkwardly distinguishes Leduc and is similar to Fric v Gershman from British Columbia. Both suggest that pictures of people who claim to have suffered a loss of enjoyment of life lounging around looking happy are generally not relevant (or have limited probative value), but pictures of skydiving, surfing and other action photos might be different.

Now, from British Columbia again, we have the following statement from Dakin v Roth, a January 8th British Columbia Supreme Court trial decision in which the plaintiff produced Facebook photos that the defendant adduced, perhaps without dispute. Justice Cole says:

The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.

I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v Narayan, 2012 BCSC 734 (CanLII), 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.

Hat tip to Erik Magraken of the BC Injury Law and ICBC Claims Blog. Here is a link to an archive of Erik’s posts on Facebook photos in British Columbia personal injury cases.

Employee benefits…there’s an app for that!

It was only a matter of time before app-mania struck the pension and benefits industry.  In the past few weeks, it seems like  industry publication has an article about another service provider launching an app or using social media as a communications tool.

In recent years, we’ve seen the rise of auto-enrollment, online planning tools, employee websites and portals, but the introduction of apps may bring employee engagement and access to their benefit or retirement savings information to a new level.  For example, Sun Life Financial has announced that it plans to offer a free mobile application for group benefits and group retirement and savings plan members.  The app will allow plan members to submit benefit claims or check the balance of their retirement plan accounts.

At a time when defined contribution plan sponsors are concerned about the lack of engagement by members responsible for investing their plan assets, the advent of apps has the potential to increase participation and interaction.  The ability to see your pension plan account balance at the press of a button (or tap of the screen as the case may be) also enhances transparency and may help increase member awareness and education.

Other benefit providers are also jumping on the app-bandwagon, capitalizing on the increasing number of people with smartphones.  For example, Morneau Shepell has launched “My EAP”, which will provide users with access to interactive tools, support resources (such as e-counselling) and other employee assistance programs.  Many of these features are already available on Morneau’s website, but the app enhances the ease of access for people on the go, giving access to EAP services anywhere and anytime they are needed.

The use of apps and other social media technology is creating new opportunities for communication and disclosure with pension and benefit plan members.  However, as always, apps and social media must be integrated into an overall communications strategy.  Consideration must also be had to ensuring the privacy and security of such sensitive personal information.

Specifically with reference to pension plans, plan administrators must also make sure they are complying with any applicable rules regarding the use of electronic communications.  Governments have implemented a number of rules regarding when and how electronic communications can be used in the administration of a pension plan.  I will discuss this in more detail in an upcoming post.

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.