Employee Privacy Rights: New Developments in the Law

Employee Privacy Rights: New Developments in the Law

Agenda

1. Overview of Workplace Privacy Legislation

2. R. v. Cole: A Right to Privacy?

3. Jones v. Tsige: A Right to Privacy!

4. Questions

George Leibbrandt, Partner

[email protected]

Overview of Workplace Privacy Legislation in Ontario

Privacy Legislation regulating Ontario Public Sector

• Personal Information Protection and Electronic Documents Act (PIPEDA)

• Freedom of Information and Protection of Privacy Act (FIPPA)

• Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)

• Personal Health Information Protection Act (PHIPA)


Privacy Legislation regulating Ontario Private Sector

• Personal Health Information Protection Act (PHIPA)

• Personal Information Protection and Electronic Documents Act (PIPEDA)*


*Limited application of PIPEDA to Ontario Private Sector

• Applies to provincially-regulated private sector businesses, but only with respect to commercial activity

• Does not apply to employer-employee relationships of provincially-regulated businesses


Privacy Legislation regulating Ontario Private Sector

• Other than PHIPA, regulating collection of personal health information and limited application of PIPEDA to commercial activity, there is a “statutory gap” in Ontario

• Consequences of “statutory gap” : no cause of action in private sector for invasion of privacy

R. v. Cole: A Right to Privacy?

Facts•Not private sector: Cole a teacher employed by school board •Cole had been provided with use of a school board-owned laptop computer•Technician discovered nude photographs of student


Facts•Technician copied photographs to disc as directed by school board•Laptop seized by school board and turned over to police•Police proceeded to search entire hard drive of laptop computer•No search warrant obtained


The DecisionCole had a reasonable expectation of privacy in contents of laptop computer because:

• Teacher had exclusive use of laptop• Had permission to use for personal use, inside and

outside of school• No evidence school board actively monitored use• School board did not have clear and unambiguous policy

to search or monitor teacher use


Implications of R. v. Cole

•Employees may have reasonable expectation of privacy in information on employer-issued electronic devices•Unregulated personal use of such devices supports expectation of privacy•Employer may limit expectation of privacy through consistent enforcement of clear, unambiguous policy respecting use of electronic devices


Why private sector may have ignored R. v. Cole…at first

•Cole an employee of a public sector employer privacy in public sector heavily regulated (PIPEDA, FIPPA, MFIPPA, PHIPPA)•Case was a criminal proceeding where Cole’s Charter right to be secure against unreasonable search and seizure at issue•Charter doesn’t apply to private sector institutions

Jones. v. Tsige: A Right to Privacy!

Facts

•Jones and Tsige both employees of private sector employer (Bank of Montreal)•Jones and Tsige not co-workers•Tsige in a relationship with Jones’ ex-husband•Tsige wanted to know if ex-husband making support payments to Jones


Facts

•Tsige used her position as a BMO employee to access personal accounts of Jones 174 times over a 4 year period•Jones discovered and Tsige was caught•Tsige suspended without pay for one week and denied bonus by BMO, but Jones sued anyway


Ontario Superior Court of Justice

•Jones’ action dismissed by the Ontario Superior Court of Justice•Ontario law does not recognize cause of action for invasion of privacy•New laws should be made by legislators, not courts


Court of Appeal for Ontario

•Decision overturned, new cause of action for invasion of privacy created•Called an action for “intrusion upon seclusion”•Decision has not been appealed to Supreme Court of Canada


Rationale for New Right to Privacy

•Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. •Charter jurisprudence recognizes privacy as a fundamental value in our law


Rationale for New Right to Privacy

•In modern times, the pace of technological change has accelerated exponentially and there is a pressing need to preserve privacy which is being threatened by science and technology to the point of surrender


Legal test to prove “intrusion upon seclusion”?

•Defendant’s conduct must be intentional or reckless•Defendant must have invaded, without lawful justification, plaintiff’s private affairs or concerns •A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish


What Employers Need to Know

•Assume that employees have a reasonable expectation to some degree of privacy in the workplace•Breach of privacy may now lead to damages•Court of Appeal recommended damages limit of $20,000•Accessing employee information for legitimate purposes is not a breach of privacy


Best Practices

•Ensure you have policies relating to use of employer electronic devices, databases, hardware, software, etc.•Ensure policies communicated to employees and applied consistently across workplace•Perform random audits to monitor usage


Best Practices

•Issue warnings and/or discipline where policies breached or privacy infringed •Keep records of actions taken to demonstrate employer due diligence

Employee Privacy Rights: New Developments in the Law

Questions? George Leibbrandt, Partner

[email protected]

Employee Privacy Rights: New Developments in the Law

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