In a recent decision, the Ontario Superior Court has further developed the privacy related tort of “intrusion upon seclusion”. In addition, the Court has confirmed that one’s work schedule may constitute personal information.
Walsh and Stevens were both Air Canada pilots. They were each able to access their work schedules on two different websites: (1) an Air Canada employee-only website allowing access to a page containing pilot work scheduling information, and (2) a third party website called Crewsware, which permits employee and non-employees access to the site, and which partially reflects the work scheduling information on the Air Canada site. The Crewsware site, which is for pilots and flight attendants, has the ability to create shareable calendars which can be disclosed to friends and family so that they know the employee’s location. As a result, an individual placed on an employee’s Crewsware “friends list,” can view the employee’s work schedule. Walsh and Stevens were “friends” on the site.
In her testimony at the trial, Walsh admitted that she accessed Stevens’ flight schedule information on Crewsware and disseminated that information to her friend who was in the midst of divorcing Stevens. Walsh also provided an affidavit in support of Stevens’ wife in the divorce matter. The affidavit contained Stevens’ work scheduling information taken from the two websites.
Stevens’ complaint was not that Walsh had accessed his schedule by using the websites, Rather, his complaint was that she had disseminated the information to others. At trial, the judge set out the test for establishing the tort of intrusion upon seclusion:
- The defendant’s conduct must be intentional;
- The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
- A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
The trial judge found that the three elements of the tort had been made out and damages were subsequently assessed against Walsh in the amount of $1,500. Walsh appealed the decision, raising the issues of whether the trial judge erred in finding that the tort of intrusion upon seclusion includes dissemination of private information and whether the trial judge erred in finding that Stevens’ work schedule was private information.