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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, January 31, 2013 7:55 am

In my experience, most organizations do not explicitly address the office romance in their human resource policies. This issue can be addressed in an organization’s anti-discrimination policy or a sexual harassment policy but most don’t. Failure to do so can lead to significant legal liability.

What is an organization’s potential liability in connection with an office romance?

A wrongful dismissal action and/or a human rights complaint can arise out of an office romance. If the employer fires an employee for retaliating against a co-worker for ending an office romance then the employee can bring a wrongful dismissal action. If an employee is penalized for ending an office romance then she can file a human rights complaint.

An example of wrongful dismissal exposure

Here are some facts in connection with a wrongful dismissal case that arose out of one office romance that ended badly:

A lawyer with one of Ontario’s cities and the Mayor’s executive assistant had a consensual office romance. She ended it; he was not amused. Thereafter, he harassed her at work and at home.  At one point, he advised the Mayor to terminate her employment.  The court concluded the City had just cause to terminate the lawyer’s employment. The City had a sexual harassment policy and a policy against  harassment and discrimination, however, neither policy required an employee to disclose an office romance.

An example of human rights exposure

I was retained by a board of director a number of years ago.  The organization’s senior manager had a romantic relationship with a subordinate. Another employee claimed this relationship constituted a violation of the Ontario Human Rights Code because the relationship – which was known to a number of staff -  including alleged benefits to the subordinate was causing a “hostile work environment.” When confronted with the allegations the senior manager, a lawyer, admitted to the relationship but claimed he had no legal obligation to disclose it.

Should employees be required to disclose office romances?

When drafting an anti-discrimination policy or a sexual harassment policy, I think an employer should consider whether or not an employee should be required to disclose a romantic relationship and if so, in what circumstances and when this disclosure needs to be made.

Doug MacLeod is an employment lawyer who has been representing Ontario  employees and employers for over 20 years ( www.macleodlawfirm.ca ).  He can be reached at  inquiry@dougmacleod.com or at 1-888-640-1728.

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By MacLeod Law Firm, December 12, 2012 9:27 am

HEADS UP!  AODA compliance reporting is due December 31, 2012

Are you aware of your obligations under the Accessibility for Ontarians with Disabilities Act (AODA)?  Many employers are not, and the first phase of these obligations has already begun.

Did you know that as of January 1, 2012, AODA required every provider of goods and services to comply with the Customer Service Standard?

Did you know that as of December 31, 2012, AODA requires any provider of goods or services with 20 or more employees to file a Customer Service Accessibility Compliance Report?

If you answered “no” to any of these questions, let’s get you on the right track now!

Complying with the Customer Service Standard is as easy as 1, 2 (and sometimes 3 & 4)

For every provider of goods and services

Step 1. Prepare an accessible customer service policy. Click here for a template.

Step 2. Train Employees on the Customer Service Standard.  Complete a 45 minute online training course by clicking training course.

For every provider of goods and services with 20 or more employees

Step 3. Keep a written copy of your accessibility policy and notify customers that a copy is available upon request. This notice should be posted in a conspicuous space or on the organization’s website. Keep a record of employee training.

Step 4. File your Customer Service Accessibility Report by December 31, 2012. Click for directions on compliance reporting.

This is just the first phase of the AODA compliance requirements.  Stayed tuned for more information and suggestions on how to meet your obligations in 2013.

If you have any questions about employers’ obligations under AODA, please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter or subscribe to our employment law blog 

The material and information provided in this blog is for general information only and should not, in any respect, be relied on as legal advice or opinion. The MacLeod Law Firm makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction.

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By MacLeod Law Firm, October 22, 2012 2:07 pm

Right to Privacy in the Workplace

A new ruling on employee right to privacy was set on October 19, 2012 when the Supreme Court of Canada released its final decision in the case of  R vs. Cole.

R v. Cole

Mr. Cole was a high school teacher. He was permitted to use his work-issued laptop computer for personal purposes.  While conducting a routine search of his laptop, a school board technician found a hidden folder containing nude and partially nude photographs of a female student. The school board handed over the files to the police which charged Mr. Cole with possession of child pornography under the Criminal Code.

The SCC concluded Mr. Cole’s right to privacy under the Charter of Rights & Freedoms had been violated but concluded that the evidence should have been allowed at his criminal trial because to do so would not bring the administration of justice into disrepute. A new trial has been ordered.

The Employment Law Implications Regarding the Right to Privacy of  R v Cole

The Charter does not generally apply to the private sector so this part of the decision has no applicability to private sector employers.

The court did not deal with an employee’s common law right to privacy in the workplace. In this regard, the majority decision stated: “I leave for another day the finer points of an employer’s right to monitor computers issued to employees.”

The SCC did however make several observations that we believe will be relied upon in the future to interpret the new common law right to privacy which was recognized earlier this year in the Ontario Court of Appeal’s decision in Jones v. Tsigne

Jones v. Tsige

In this case, one bank employee, Ms. Tsige, looked at the private bank records of a co-worker, Ms. Jones, who was having a common law relationship with her former husband.

Ontario’s Court of Appeal recognized a new legal action called the tort of inclusion upon seclusion.

To obtain damages for this new tort, a person must prove:

1. the actions were intentional;
2. the person/entity must have invaded, without lawful justification, the plaintiff’s private
 affairs or concerns;
3. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish

The Impact of  the R v. Cole case on an employer’s right to monitor an employee’s personal computer use

Here are some statements/principles from the R v. Cole decision that we believe will be considered by civil courts if an employee sues an employer for monitoring personal emails or computer use.

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: “[T]he 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.

Lesson to be learned
If an employer wants the right to monitor personal emails and internet use it should carefully review and if necessary amend its policies in this area.

If you have any questions about your Human Resource Policies, please call Macleod Law Firm at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca

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By MacLeod Law Firm, May 18, 2012 7:35 pm

Human Rights Laws in Ontario

The human rights laws that govern Ontario employers are found within the Human Rights Code. Ontario employers must comply with the Human Rights Code (Code) which prohibits discrimination in employment on 14 grounds including: race, colour, sex, sexual orientation, age, marital status, family status, or disability. (a Prohibited Ground)

In our experience, most human rights issues arise during the hiring process or relate to disabled employees or female employees. In this blog, we will address these three issues.

1. Discriminating in the hiring process

The Code prohibits discrimination in employment on a Prohibited Ground, and states that an infringement occurs where, among other things, a job application directly or indirectly classifies on a Prohibited Ground.

The Ontario Human Rights Commission (the Commission) has published at least four policies that are relevant to hiring; namely

-       Policy on employment-related medical information

-       Policy on drug and alcohol testing

-       Policy on requiring a driver’s license as a condition of employment

-       Policy on height and weight requirements

2. Discriminating against disabled employees

The Code prohibits discrimination in employment because of disability unless the person is incapable of performing or fulfilling the essential job duties. A person cannot be found incapable unless accommodating the person would cause the employer undue hardship

The Commission has published a 40-page document entitled “Policy and Guidelines on disability and the duty to accommodate”.

3. Discriminating against female employees

The Code prohibits discrimination in employment because of sex which includes the right to equal treatment because a woman is (or may become) pregnant, and the right not to be sexually harassed.

The Commission has published a 32-page document entitled “Policy on discrimination because of pregnancy and breastfeeding”, and a 37-page Guideline on developing human rights policies and procedures

Lessons to be Learned

1. Generally, when making employment decisions, it should not matter to an employer whether an employee is: male or female; heterosexual or homosexual; white or of colour; married or single; Canadian or another nationality; or, disabled or able-bodied. Taking one of these grounds into account when making an employment decision is generally a violation of the Code.

2. Generally, an employer should not ask whether an employee is disabled or speculate as to whether accommodation measures are needed. The onus is generally on the employee to disclose a disability and to identify any accommodation measures that are required.

3. Although not required by law, we recommend that most employers introduce a human rights policy which defines sexual harassment and includes a internal complaint process

4. The Policies and Guidelines published by the Commission do not have the force of law, however, the Human Rights Tribunal of Ontario can and does consider Commission policies at human rights hearings. We believe that certain Commission policies and guidelines interpret the Code too broadly.

If you have any questions about human rights in the workplace, please call us at 1-888-640-1728 or send an email to inquiry@macleodlawfirm.ca.