The recent case of R. v. Cole 2011 ONCA 218, a decision of the Ontario Court of Appeal suggests that employees may have some expectations of privacy with regard to work based emails under the Charter.
In Cole, the accused teacher was charged with possession of child pornography and unauthorized use of a computer. The Court ruled that the employee in question did have a reasonable expectation of privacy because the employer made the computer available for personal use subject only to reasonable examination by computer services technicians in the course of their work.
Now while Cole involves the Charter, and the Charter does not apply to most private employers, the finding that there is a reasonable expectation of privacy in work-based email where personal use is permitted does represent a significant shift in current thinking on privacy.
Previously, although the matter had not been explicitly addressed by the Courts, it was commonly thought that employers maintained a right to monitor and inspect email systems that they owned both as a right of ownership and because of their interest in making sure that their assets were used for proper business purposes.
However with this finding that there is a privacy interest, there could potentially be changes in four significant areas of the law with regard to employers and employees:
- Wrongful dismissal suits – Currently, private emails sent over the employer’s network are fair game for use in wrongful dismissal actions, and also can form the basis for a wrongful dismissal should the employee be found to be abusing or exploiting the employer’s network. If it is the case that there is a reasonable expectation of privacy, the standard, both for production and for wrongful dismissal, could be altered significantly.
- For Provinces that do not have their own Privacy Acts in force, the Federal PIPEDA Act governs. PIPEDA does allow the possibility of a complaint, with attendant damages, for invasion of privacy. If it is the case that there was a reasonable expectation on workplace emails employees may be able to complain against their employers under PIPEDA.
- Certain Provinces, for example British Columbia and Newfoundland, have legislation that creates a tort of invasion of privacy. After Cole, employers viewing employees’ email may create grounds for that tort. Moreover, there is also a move towards a common law tort of invasion of privacy. This decision would also lay the groundwork for solidifying that claim.
- Finally, most Collective Agreements have provisions regarding employee privacy. This case, if adopted widely in grievance arbitrations, could create a significant ground of dispute between employers and employees in the unionized sector.
Cox & Palmer
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