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By MacLeod Law Firm, March 25, 2013 9:25 am

A New Right to Privacy – Employers May Face Liability for Monitoring Employees E-mails

Today, it is common for employees to browse the Internet and handle personal emails on their company computers and for employers to monitor this activity. Employers will need to think twice about this as a result of two important court decisions in 2012.

A New Right to Privacy

Canadian courts were reluctant to recognize a common law right to privacy until January, 2012 when the Ontario Court of Appeal recognized the right to privacy in a new tort called the  “inclusion upon seclusion”. [Jones v. Tsige, 2012 ONCA 32 (CanLII)]

To obtain damages for this new tort, a person must prove: (i) the actions were intentional;
(ii) the person/entity must have invaded, without lawful justification, the plaintiff’s private
 affairs or concerns;
and, (iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

An Employee’s Reasonable Expectation of Privacy

The second case from last year came in October when the Supreme Court of Canada in R v. Cole, 2012 SCC 53 (CanLII), considered an employee’s privacy rights under the Charter of Rights and Freedoms,  and observed, in orbiter:

1. Canadians may reasonably expect privacy in the information contained on their work computers, at least where personal use is permitted or reasonably expected.

2. “Informational privacy” is: “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others” In this regard: “Mr. Cole’s direct interest and subjective expectation of privacy in the informational content of his computer can readily be inferred from his use of the laptop to browse the Internet and to store personal information on the hard drive.”

3. Mr. Cole’s personal use of his work-issued laptop generated information that is meaningful, intimate, and organically connected to his biographical core.

4. Privacy is a matter of reasonable expectations.

5. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely: The nature of the information at stake exposes the likes, interests, thoughts, activities, ideas, and searches for information of the individual user.

In light of the Jones v. Tsige and R. v. Cole decisions, what is an employer’s potential liability for monitoring employee emails and Internet Use?

1. An employer could be ordered to pay an employee damages for violating the tort of inclusion of seclusion. Where a plaintiff has suffered no pecuniary loss, the Ontario Court of Appeal has fixed damages at up to $20,000. (Jones v. Tsige, 2012 ONCA 32 (CanLII) at par. 87).

2. An employer could be found to have improperly gathered an employee’s “personal information” under federal, provincial, or municipal privacy legislation. In this regard, a privacy commission could conclude that personal emails are “personal information”. It should be noted that privacy legislation does not apply to many private sector employers.

3. An employer could be found to have improperly gathered an employee’s personal health records if the employer monitors an email that contains personal health information. The Occupational Health & Safety Act allows for access to health records only with an employee’s written consent or an order of a court or tribunal or in order to comply with another statute.

4. A unionized employer could be found to have improperly monitored the employee. It could be argued that monitoring emails is analogous to video surveillance which has been the subject of a number of arbitration awards. With respect to video surveillance, one arbitrator has observed: “Arbitrators have distinguished between the reasonableness standards required to justify overt video recording of the workplace, and the much more restrictive standards required to justify covert recording of employees…That case law recognizes that covert surveillance is severely and inherently privacy-intrusive. By its nature it is intended to catch a person in some act, unaware that they are being observed.”

What is an employer to do?

If an employer plans to monitor an employee’s email or Internet use then ideally the employer should obtain the employee’s written consent in advance via a computer-use policy. Such a policy tells the employee that the employer will be monitoring emails and Internet use and that the employee should have no expectation of privacy if he uses the company network to send or receive personal emails or use the Internet for personal purposes.

The employer can require all new employees to sign a computer use policy which obtains the employee’s written consent as a condition of employment.

If you have any questions about monitoring employee internet use we can be reached at 1–888-640-1728 or at doug@macleodlawfirm.ca . You can subscribe to our employment law blog for employers at  employment law blog

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By MacLeod Law Firm, March 4, 2013 4:15 pm

The Main Issue Regarding a Non-Solicitation Clause: Will Departing Employees Take Customers With Them?

To plan for this worst case scenario, we like to ask at the time of hiring, “Could this person take your customers to a competitor if he or she quits?”

The Solution: A Non-Solicitation Clause in the Employment Agreement

If the potential for poaching customers exists, the employer needs to protect its client relationships. The best way to do this is by requiring the employee to sign an employment contract with a non-solicitation clause.

In the non-solicitation clause, the employee agrees to neither: (i) solicit certain customers for a specified period of time; nor (ii) take advantage of any business opportunity that came to his or her attention while employed.

The Non-Solicitation Clause Must be Reasonable to be Legally Enforceable

For the courts to enforce this kind of agreement, it must be reasonable between the parties with reference to the public interest. The court will balance the public interest in maintaining open competition and discouraging restraints on trade on the one hand, and on the other hand, the right of an employer to the protection of its client relationships.

The non-solicitation clause will not be enforced if it is ambiguous. In this regard, the Supreme Court of Canada has stated:  “if (a non-solicitation agreement) is ambiguous, in the sense that what is prohibited is not clear as to activity, time, or geography, it is not possible to demonstrate that it is reasonable. Thus, an ambiguous restrictive covenant is, by definition, prima facie unreasonable and unenforceable”

In other words, when deciding whether to enforce a non-solicitation clause, the court will consider whether the prohibition is too broad. For example, is the employee forbidden from contacting clients with whom he or she has had no prior dealings? Does this prohibit the employee from working in a geographic location where he or she has not worked before? And, does this non-solicitation clause impose a period that exceeds the employer’s normal sales cycle?

It is important to draft a non-solicitation clause that fits the employer’s specific circumstances because the courts will not read down or blue pencil it. This means that the courts won’t amend it to make it enforceable and the employer needs to get it right the first time.

If you have any questions about non-solicitation clauses or employment agreements, you can reach us at 1-800- 640-1728 or at inquiry@macleodlawfirm.ca.