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.
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