Employee Privacy in Canada

By: Omar Ha-Redeye · January 2, 2008 · Filed Under Administrative Law, Civil Rights, Labour & Employment Law, Torts · 16 Comments 

Cases in Canada

We previously commented on the development of privacy laws in Canada, prompted by a recent case in NY State where an employer’s monitoring and unauthorized use of the employee’s e-mails was upheld.

Perhaps the most similar case in Canada is Pacific Northwest Herb Corp. v. Thompson (1999). The plaintiff in this case dismissed the defendant as president of the corporation, initiating proceedings that included returning a computer that had been previously used by the defendant at home for both business and personal use.

Correspondence from this computer included emails to his solicitor, D. R. Eyford, now a partner at Borden Ladner Gervais LLP in Vancouver, but also with other solicitors concerning matrimonial proceedings.

wipe hard driveThe defendant “wiped” the hard-drive, but upon receipt the plaintiff searched through the computer as part of their fraud investigation, and was able to retrieve data.

The court cited s. 1 of the British Columbia Privacy Act,

(1) It is a tort, actionable without proof of damage, for a person, wilfully and without claim of right, to violate the privacy of another.

(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another’s privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

The defendant sought an injunction to protect this confidential information, and although the court found a reasonable expectation of privacy existed despite it being a company computer, they failed to uphold the injunction. Instead, the court ordered that a list of files be prepared, and the defendant could then identify which specific files were protected by solicitor-client privilege.  The employer did have legitimate access to files that the court wanted to balance with these rights.But cases even on this subject have not been consistent in creating a balance. Employees generally have no reasonable expectation of privacy in email at work.

CUPE Camosun College v. CUPE (1999) ruled against an employee who sent an e-mail to Union members critical of some faculty members, which was then forwarded to management, who in turn disciplined the employee.

No reasonable expectation of privacy was held to exist.

Melanie C. Samuels and Sara Gregory explain in Privacy issues in the workplace: Employer monitoring of employee technology use,

One critical part of implementing an effective computer use policy is obtaining the employee’s consent to be bound by the terms and procedures outlined in the policy.

Briar et al v. Treasury Board (2003) disciplined 54 employees for sharing sexually degrading images over e-mail among themselves. A clear log-in warning that the system was monitored to ensure compliance with company policy was considered reasonable, and overrided any s. 8 Charter concerns.

There are also other previous cases that address earlier concerns of employer monitoring of the workplace aside from e-mail that follow a similar pattern.

phone tap Wire-Tapping Phones and Privacy

In Saconne v. Orr (1981), the defendant secretly taped telephone conversations and then played them back at a municipal meeting, which was later printed in the newspaper.

Jacob J. stated,

…at the commencement of trial, defendant’s counsel, Mr. Crowe, moved that the action be dismissed, mainly on the grounds that there is no such cause of action as “invasion of privacy” known to the common law and insofar as this province particularly is concerned.

The court cited Burnett v. The Queen (1979), and Krouse v. Chrysler Canada Ltd. (1970), where claims for invasion of privacy were not stricken, and he upheld the claim with damages:

22 Be that as it may, it’s my opinion that certainly a person must have the right to make such a claim as a result of a taping of a private conversation without his knowledge and, also, as against the publication of the conversation against his will or without his consent.

23 Certainly, for want of a better description as to what happened, this is an invasion of privacy and, despite the very able argument of defendant’s counsel that no such action exists, I have come to the conclusion that the plaintiff must be given some right of recovery for what the defendant has in this case done.

But courts have ruled differently when it comes to workplaces.

The employer in Ste-Marie c. Placements J.P.M. Marquis (2005) hired a secret investigator who,

…écoute les enregistrements des divers appels de la veille, dont celui d’une conversation entre Ste-Marie et un tiers alors inconnu, dont il sera révélé ultérieurement qu’il s’agit selon toute probabilité d’un perceur de coffre-fort bien connu de la police. Le contenu de cette conversation, que retranscrit intégralement le jugement de première instance, est de nature à laisser croire que Ste-Marie prépare avec son interlocuteur le vol du coffre-fort du supermarché ou qu’à tout le moins il transmet des renseignements susceptibles de faciliter la perpétration d’un tel vol.

(Rough translation) …listened to recordings of the previous day between the plaintiff and a safe-cracker well known to the police force. The contents of the conversation lead the investigator to believe that they were going to break into the safe, or at the very least facilitate it.

The defendant provided this information to the police, who arrested but did not charge the plaintiff. The plaintiff claimed their rights were violated under s. 5 of the Quebec Charter,

Respect for private life.

5. Every person has a right to respect for his private life.

and s. 35 of the Quebec Civil Code,

RESPECT OF REPUTATION AND PRIVACY

35. Every person has a right to the respect of his reputation and privacy.
No one may invade the privacy of a person without the consent of the person unless authorized by law.

The court ruled that the plaintiff did not have a reasonable expectation of privacy at the workplace, even though they were not directly bound by an employment contract.

Creating a Balance

Samuels and Gregory, in reviewing the case law, provide four criteria they feel are useful in establishing this balance between employer rights and privacy rights:

  1. Whether the monitoring was done openly or surreptitiously
    • if falling within policy, surreptitious monitoring can still be upheld
  2. Purpose of the monitoring
  3. Location of the document
    • monitoring personal files are considered more intrusive
  4. Type of information gathered by surveillance

Re Saint Mary’s Hospital (New Westminster) and H.E.U. (1997) looked at the options an employer had available to them, and ruled that the surreptitious surveillance was unwarranted. They described what they called a “hierarchy of protection afforded by the right to privacy”:

  1. actual bodily intrusions, protected by the law of trespass and assault
  2. searches of personal effects and spaces
    • tresspass and assault have no role
    • privacy rights are not absolute and may give employer interests
  3. surveillance cases
    • analagous to searches
    • measured on a variable scale:
      • benign surveillance for employee benefit
      • surveillance for security of employer and employee
      • surreptitious surveillance

Merely accessing computer files is not necessairly considered surreptitious, as in Re Insurance Corporation of B.C. and Office and Technical Employees Union, Local 378 (1994).

Courts also look at the context of a case to evaluate intrustion. In Canadian Pacific Railway v. International Brotherhood of Electrical Workers (Lahaie Grievance) (2000), an employee was discharged for violation of the Harrassment and Discrimination Policy for sending off-colour jokes about another employee and a supervisor.

The arbitrator found that the behaviour constituted misuse warranting discipline, but was not a violation of the Policy and did not justify dismissal.

Samuels and Gregory elaborate on the role of legislation in this balance,

The Personal Information Protection and Electronic Documents Act has significantly impacted the way in which a business may collect, use, and disseminate the personal information of its customers and employees. In its first stage of development, this Act only applies to certain federal enterprises. Under the Act, an employer will bear the consequences for any dissemination of information not in accordance with the Act. Employees with computer access who send information via e-mail or the Internet carelessly could pose a significant liability risk for their employers.

Christopher McHardy, Tina Giesbrecht and Peter Brady explain how balance is created in light of new legislation in McCarthy Tetrault‘s publication, Workplace Monitoring and Surveillance:

Under personal information protection legislation, the focus is on the collection, use and disclosure of personal information, not simply private information. Previous judicial and arbitral decisions may be helpful in determining reasonableness by discussing the extent to which employee privacy is affected. However, their discussions of reasonableness do not generally address the collection of personal information and the obligation of employers to limit their collection and use of personal information. Specifically, case law and arbitral analysis may not address questions of whether the monitoring is reasonably necessary, whether there are alternatives available to the monitoring and the reasonable scope of investigation in the circumstances. All these considerations will be key issues under the legislation.

Comments

16 Responses to “Employee Privacy in Canada”

  1. David Fraser on July 4th, 2008 12:19 pm

    I would like some inforamtion on wheather a company can have a hidden camera in an office to watch employees. My friend was a Super of an Apartment building and there was a Montion Detector with a Hidden camera. He was not informed about the camera and he found out about it on the computer monitor. Would this be consider Invasion Of Privacy and could he do something about it.

    Thank You Very Much
    David Fraser

  2. Lawrence Gridin on July 4th, 2008 4:35 pm

    David:

    Unfortunately it is not only unwise, but also against the law for us, as students, to give legal advice.

    If your friend is serious about his complaint, he should probably speak to a lawyer to see what his options are. Many will offer free consultations.

    Good luck to you and your friend!

  3. nicki on July 28th, 2008 11:55 am

    is audio surveillance legal in canada at the workplace

  4. Omar Ha-Redeye on July 28th, 2008 5:05 pm

    As stated in the article, the context of any surveillance is important.

    Seek legal counsel in your area for details. If you have difficulty finding someone, feel free to contact us on this site and we can find you a referral.

  5. Michael D. on October 16th, 2008 1:47 pm

    Dear Sir,

    I was a letter carrier/ union steward at canada post for over 7 years.

    I was dismissed on May 22, 2008, for ” alegged misrepresentation of overtime ” on April 8, 9, 10, and April 14, 2008. I was interviewd on May 2, 2008. I was under surveillance by a supervisor.

    what ” code of conduct ” does a federally run corporation adhere to when surveillance by their own employees are being done. It is my word versus management. There is extreme bias here.

    The supervisor that followed me used his own vehicle.

    What is the scope of privacy / surveillance laws that may have been broken… in regards to a crown corporation such as Canada Post.

    Any help would be most appreciated.

    My case is arbitration, but the damage is done and I have time on my hands to investigate all aspects of thier survellance on me.

    I have documentation obtained through privacy requests that show inconsistancies in their surveillance reporting.

    Thank you for your time and consideration.

    Sincerely,

    Michael D.


    Law is Cool: Please see a lawyer for professional legal advice.

  6. Sam on March 4th, 2009 8:31 pm

    What is the relevent statute that has to do with Employee rights in the workplace to privacy

  7. Andrey on March 5th, 2009 10:56 pm

    Hello!

    I’ve got a general question about one particular issue here. Would really appreciate any advice on it, or, if not possible, any referral to a trustworthy source.

    Is it legal for a company in Canada to perform a mandatory search of its employees’ belongigs (i.e, bags, purces etc.)? Generally, does the very fact of the employees being on their property make the employer legally eligible to search employees’ private property? Are there any laws/codes regulating such issues?

    Thank you very much, your advice is truly appreciated!

  8. Liz on November 3rd, 2009 5:33 pm

    My employer accessed personal medical information without my consent — they called my medical practitioner and were given information.

    Is this a violation of my rights? Can you direct me to any information?

  9. Tom on December 21st, 2009 9:23 pm

    I am currently off work due to my medical condition.
    My workplace has told me that I have to devulge my condition or it will cost me my job and my doctor doesnt think this is necessary do I have to devulge my illness.

  10. franki on January 3rd, 2010 1:23 pm

    hi my name is frank palermo i am a straight male who has been struck by invasion of privacy images of me were put out on the computer of me without my concent and video footage currently being done on utube all this is being done without my concent i feel like a deer in a head light knowing something like this is being done utube live and images that are fake and everything being done without my concent please help me stop this act of evil i understand your pro bono please help get these fake images and stop this utube stuff thats done without my concent in our hands and we sue utube and everyone else who is envolved my life is over do to this no women will ever look at me the same no one will ever look at me the same i cant get back what i lost but stoping all this from happening to another great person is agreat accomplishment if can get these images that are fake money cant replace the years i lost do to this act of evil but it can heal a few wounds please take my case my number is 416 652 7556

  11. Work Computers and Privacy (R. vs. Cole, 2011 ONCA 218) | Jeff Cho on March 24th, 2011 3:42 pm

    [...] National Post, Globe and Mail, Morton's Musings, Law is Cool, Canadian Privacy Law Blog, Ontario Courts, Canadian Internet Policy and Public Interest [...]

  12. Dan on June 7th, 2011 11:58 am

    A person in my workplace warned me that if I ever spoke about her or her performance with another manager I would be in trouble. She claims to have super sensitive hearing and said, despite the office I was in being 30 feet away and having a closed door, she demanded I stop talking about her work without her being present. Therefore I have two questions: 1) Do I have a legal expectation of privacy in my office? 2) What measures do my employer have to take to guarentee my privacy during a closed door meeting?

  13. Mary Puto on February 1st, 2012 3:03 am

    Is it lawful for an employer to disclose his own personally gathered notes of information about an employee as well as letters regarding employment issues exchanged between the two without the employee’s knowledge at a public meeting of individuals who had been served satisfactorily by the employee?

  14. Amanda on May 7th, 2012 9:10 am

    I have a co-worker that was terminated employment under “fishy” circumstances. My employer then proceeded to pull each remaining employee (and some clients) into her office to inform us of the termination. Only, instead of just informing all other other employees, she then proceeded to list off all of the reasons why this employee had been terminated (half of which were unfounded reasons). I was just wondering what the privacy laws are regarding the terminated employee – does she have a right to keep the reasons for her termination private? Isn’t this an attack on her reputation and character? thanks.

  15. Mike on July 10th, 2012 3:13 pm

    In the Canadian private sector, if a company has given no indication whatsoever that they monitor internet usage, is it lawful for them to do so? Do the employees legally need to be informed in some way?

  16. paul on February 16th, 2013 1:58 am

    our copany shift forman wes keep recording in his phone,three days ago we find out me my coworker so dipresed what kind action we can take empler may knew this