The office of the Privacy Commissioner of Canada states that “individuals have a right to privacy at work, even if they are on their employer’s premises and/or using their employer’s equipment”. But, at what point has an employer overstepped an employee’s personal privacy? In the new era of technology, personal privacy in the workplace has become a more complex issue to navigate. Surveillance is more commonly used by employers to monitor their daily business activities and whereabouts for business needs. It is important for employers to understand what limits exist when it comes to employees’ personal privacy. The case of York Region District School Board v Elementary Teachers’ Federation of Ontario, 2022 sets a new tone for employers in the public sector.
Overview of Case
In York Region District School Board v Elementary Teachers’ Federation of Ontario, 2022 [York Region], the Supreme Court of Canada ruled that Ontario public school board teachers are protected in the workplace by the Canadian Charter of Rights and Freedoms (the “Charter”) and therefore protected from unreasonable search and seizure. In this case, two teachers’ privacy rights were violated by the public school principal when the principal read and took photos of a personal log used by the two teachers on their computer. The two teachers were then reported by the principal to the school board and subsequently reprimanded. The two teachers grieved the decision by the school board and brought the matter to arbitration.
Justice Rowe, who wrote for the Majority within the Supreme Court, said that Ontario public school boards are inherently governmental as related to Section 32 of the Charter and as such, public teachers are protected under the Charter. Section 8 of the Charter specifically protects individuals from unreasonable search or seizure. In the decision, the Supreme Court of Canada found that the principal had violated Section 8 within the case.
A discussion of what a reasonable expectation of privacy is for employees in the workplace was considered by the Court, with the Court ruling that the Grievors’ reasonable expectation of privacy did not depend on what the log actually contained, rather what mattered was the potential for the search to reveal information touching on the Grievors’ biographical core. The biographical core is defined as information that can be characterized as “intimate or capable of revealing inferences about personal lifestyle choices”. The SCC in York Region stated that, “the information contained on Internet-connected devices, [typically], tends to reveal one’s ‘specific interests, likes, and propensities’, and as such it is ‘at the very heart of the ‘biographical core’ protected by section 8’”. The Union’s position was agreed to by the SCC, that the arbitrator in the matter had examined the two teachers’ privacy expectations based on the content of the messaging.
An Important legal concept for private employers to understand is that the Charter does not apply to non-governmental entities, and therefore Section 8 of the Charter would not be applicable to their actions in this type of case.
Is there a reasonable expectation of privacy in the public workplace?
In order to determine if there is a reasonable expectation of privacy in the public workplace, the “totality of the circumstances” is required to be reviewed. The reasonable expectation of privacy can take into consideration an employer’s operational needs, workplace policies and procedures. For example, storing personal information on an employer computer and a policy which states data stored on employer computers belongs to the employer would likely lessen a reasonable expectation of privacy. But, if employees are permitted to use work laptops for personal purposes then there would be a higher expectation of privacy. In the York Region case, the Board argued that by one of the two teachers leaving the log on their screen lessened their reasonable expectation to privacy – the court did not agree. Public employers will need to go through these factors to determine if there is a reasonable expectation of privacy as it relates to their methods of accessing employee information for disciplinary purposes, and care should be taken given this new decision.
What does York Region mean for private employers?
The York Region case solely dealt with a public employer, and in our view, any guidance the case provides should be limited to public employers only as it relates to employee privacy interests and the Charter. With that said, private employers should be mindful that these decisions usually inform future reasoning of arbitrators and civil privacy interests.
The latest from the Ontario government was Bill 88, which passed on April 11, 2022, that added amendments to the Ontario Employment Standards Act, 2000 requiring that Ontario employers, who have 25 or more employees, have a written electronic monitoring policy. While electronic monitoring is not defined by the Employment Standards Act 2000, guidance provided by the Ontario government states that electronic monitoring includes all forms of employee monitoring that is done electronically. It is now required that a written policy must be provided if the employer electronically monitors an employee’s personal computer for work and applies whether the work is conducted in the workplace, at home or in another hybrid setting.
If an employer wishes to electronically monitor employees, then a written policy must:
- Describe how the electronic monitoring occurs, and in what circumstances; and
- Explain the purposes for which the information obtained through electronic monitoring may be used by the employer.
Government guidance on policy requirements specifies that an electronic monitoring policy must include:
- A statement confirming whether the employer electronically monitors employees.
- If the employer electronically monitors, then the written policy must include:
- A description of how the employer may electronically monitor employees;
- A description of the circumstances in which the employer may electronically monitor employees; and
- describe what purposes the employer may use the information collected through electronic monitoring of the employee.
- The date the policy was prepared and the date any changes were made to the policy.
Should an employee wish to complain about an employer’s written electronic monitoring policy, then an employee may file a complaint to the Ministry of Labour, Immigration, Training and Skills Development or to an employment standards officer.
If you have questions about privacy standards in your workplace or preparing a written electronic monitoring policy in your workplace, please do not hesitate to contact Mann Lawyers for more information.
This blog post was written by Travis Ujjainwalla, Practice Lead of our Employment Law team, and Tiffany Mayhew, Summer Law Student. Travis can be reached at 613-566-2060 or at travis.ujjainwalla@mannlawyers.com.
