{"id":138495,"date":"2020-08-12T20:25:41","date_gmt":"2020-08-12T20:25:41","guid":{"rendered":"http:\/\/dominiclevent.com\/blog\/?p=138495"},"modified":"2020-09-02T06:42:16","modified_gmt":"2020-09-02T06:42:16","slug":"a-cautionary-tale-employee-misconduct-creates-employer-liability-litigation-mediation-arbi","status":"publish","type":"post","link":"https:\/\/dominiclevent.com\/blog\/a-cautionary-tale-employee-misconduct-creates-employer-liability-litigation-mediation-arbi\/","title":{"rendered":"A Cautionary Tale: Employee Misconduct Creates Employer Liability – Litigation, Mediation & Arbi…"},"content":{"rendered":"\n
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\nCanada: <\/span><\/p>\n

A Cautionary Tale: Employee Misconduct Creates Employer Liability<\/h2>\n

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07 August 2020<\/p>\n

Siskinds LLP<\/p>\n<\/div>\n<\/div>\n

\n <\/a><\/div>\n<\/div>\n<\/div>\n

To print this article, all you need is to be registered or login on Mondaq.com.<\/p>\n

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Consider this scenario: An employee steals co-workers’
\npersonal information and uses it in an attempt to blackmail his
\nemployer, threatening to release it publicly unless a ransom is
\npaid. Who’s stuck with the liability in this story? You may be
\nsurprised.<\/p>\n

Grossman v. Nissan<\/a> is a class action in which
\nthe representative plaintiffs are Nissan employees whose personal
\ninformation was used by their co-worker (who has never been
\nidentified and is therefore referred to as the “unknown
\nemployee”) in his blackmail scheme. It appears very little
\ninformation was stolen and none was released to third parties.<\/p>\n

However, the plaintiffs claimed four causes of action against
\nNissan: (a) vicarious liability for the unknown employee’s
\nintrusion upon their seclusion (effectively a breach of their
\nprivacy); (b) breaches of provincial privacy statutes; (c)
\nnegligence; and (d) breach of contract. They indicated that, if
\ncertification of the vicarious liability claim was successful, the
\nstatutory claims would not be pursued.<\/p>\n

The plaintiffs argued that Nissan had a responsibility to
\nprotect their information, that the tort of “intrusion upon
\nseclusion” has been recognized by the Court, and that symbolic
\nor moral damages can be awarded even if no financial or
\nout-of-pocket losses are incurred.<\/p>\n

The Court certified the class action, stating “I cannot say
\nthat the plaintiffs’ vicarious liability for intrusion claim
\nhas no chance of success.” The negligence claim was also found
\nto disclose a cause of action.<\/p>\n

Of course, this is not the end of the story. If the action goes
\nto trial, Nissan could be successful in defending the claims. Some
\ninternational precedents suggest that this outcome is
\npossible.1<\/sup><\/p>\n

However, in the meantime, the Superior Court’s application
\nof the principle of employers’ vicarious liability in
\nsituations like this \u2013 a rogue employee deliberately
\ninstituting a data breach \u2013 should cause employers to tread
\ncarefully in permitting access to sensitive data. Only trusted
\nemployees with a genuine need-to-know reason should be granted such
\naccess.<\/p>\n

1 E.g. Various Claimants v. Wm Morrisons
\nSupermarket PLC<\/em><\/strong>, [2017] EWHC 3113 (Q.B.); aff’d
\n[2018] EWCA Civ 2339 (Eng. C.A.); rev’d [2020] UKSC
\n12.<\/small><\/p>\n

Originally published 30 July, 2020<\/em><\/p>\n

The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n

\n

POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from Canada<\/p>\n

\n Case Study: Grossman V. Nissan Canada<\/a><\/p>\n

Field LLP<\/p>\n

An employer who is innocent of negligence or other misconduct can be vicariously liable for the tort of intrusion upon seclusion based on a data breach committed by one of its employees<\/p>\n<\/div>\n<\/div>\n\n

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