» Management In another case, a fitness instruc-

tor may leave for another already es- tablished fitness business and ask her current clients to follow her there. In this instance, a non-solicitation clause may help to restrain this kind of behaviour. Canadian courts will enforce non-

solicitation clauses and non-compe- tition clauses if they are reasonable and if a non-solicitation clause is not sufficient to protect the employer. Determining what is “reasonable” is based on the duration, the geographic scope and the scope of the activity.

of their customers. Such photographs may be uploaded to the internet and posted on Facebook or Twitter or used in promotional emails. A photograph in which a person is

identifiable conveys personal informa- tion. Compliance in this case requires the consent of the individual and re- quires the fitness business to limit col- lection for purposes that a reasonable person would consider appropriate. Privacy requirements can also be

impacted by occurrences beyond Canadian borders. If, for example, elec- tronic data is processed, used, stored or accessed in the United States via the cloud, businesses should make it clear to clients that their information may be processed in a foreign coun- try and that it may be accessible to law enforcement and national security au- thorities of that jurisdiction. Lastly, fitness businesses should be

aware of two common law workplace torts which potentially give customers a private right of action. The first is “intrusion on seclusion.”

2. Privacy In Canada, privacy is an ever evolv-

ing and complex area which is gov- erned by several different sources of law, including federal and provincial legislation and the common law. One important piece of legisla-

tion is the Personal Information Protection and Electronic Documents Act (PIPEDA). Employers not subject to PIPEDA commonly adhere to its re- quirements as a best practice. PIPEDA applies to personal informa-

tion that an organization collects, uses or discloses in the course of commer- cial activities. Under PIPEDA, organi- zations are required to “…collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.” The knowledge and consent of the individual are also re- quired for the collection, use or disclo- sure of personal information, except in certain limited circumstances. Fitness businesses often wonder

whether they can collect photographs 26 Fitness Business Canada July/August 2017

This privacy tort is triggered when someone “intentionally intrudes, phys- ically or otherwise, upon the seclusion of another or his private affairs or con- cerns … if the invasion would be high- ly offensive to a reasonable person.” The second privacy tort is “public

disclosure of private facts.” Under this tort one person will be liable for inva- sion of another’s privacy if the mat- ter made public is highly offensive to a reasonable person and is not of le- gitimate concern to the public. (This tort has been specifically used in a previous case to find a person liable for posting to the Internet a privately- shared intimate video recording of his former partner.) Both torts are concerning for em-

ployers because of the doctrine of em- ployer “vicarious liability.” In certain circumstances, vicarious liability can hold an employer liable for tortious ac- tions of their employees that are com- mitted at the workplace. It is therefore possible that the doctrine of vicari- ous liability might hold a fitness busi- ness liable for the actions of one of its employees, where during working hours that employee commits the tort of “intrusion on seclusion” or “public disclosure of private facts” against a customer.

3. Canada’s Anti-Spam Legislation (CASL) The anti-spam legislation that came

into force in 2014, known as Canada’s Anti-Spam Legislation (CASL), applies to all commercial electronic messages sent by businesses. Even though businesses might be

aware that CASL applies to emails they send to their clients, they often over- look that CASL may also apply to their posts on social media. This is because CASL defines a “commercial electron- ic message” as “an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact informa- tion contained in the message, it would be reasonable to conclude has as one of its purposes to encourage participa- tion in a commercial activity, includ- ing an electronic message that … of- fers to purchase, sell, barter or lease a product, good or service….” This very broad definition of means

that CASL likely applies to many more business emails, Facebook posts and Twitter posts than one might think. It is important to know that in order

Fitness business owners should ask

themselves the following questions: Have my employees and clients pro- vided their consent to use their pri- vate information? Am I using this per- sonal information reasonably? Is the personal information secure? Does our company have a privacy policy in place? Does our company have a pol- icy for cloud computing? Are employ- ees trained to comply with privacy requirements (including PIPEDA and common law)?

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