Employer Breached Employee's Right To Privacy By Reviewing Private Messages Sent From Work Laptop

• Published date: 15 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Privacy Protection, Arbitration & Dispute Resolution, Social Media
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

Employees frequently use laptop computers provided to them by their employer for personal matters as well as employment-related tasks. To what extent can an employer review private messages sent from an employee's personal social media accounts if they are available on the shared computer?

In November, 2019, a reporter working under a temporary contract for the CBC took offence at the notorious remarks of Don Cherry on Hockey Night in Canada (which led to Mr. Cherry's firing), and expressed his opinions on his personal Twitter account. His superiors at CBC learned about the tweets and asked him to delete them, which he did, but he contacted other Canadian media outlets about what had occurred, using his CBC-provided laptop computer for his communications. A fellow CBC reporter found out about the messages, alerting CBC management, and the reporter was fired for cause by the CBC on the basis that he had violated his duty of loyalty and placed CBC's reputation at risk.

This led to a grievance filed by the reporter's union, the Canadian Media Guild, claiming violation of the collective agreement, the Canada Labour Code, the federal Privacy Act, the Canadian Human Rights Act, and the Charter of Rights and Freedoms, and an arbitration.

In January 2021, the Arbitrator released his Award, finding that the CBC had acted improperly by dismissing the reporter for cause: Canadian Broadcasting Corporation v Canadian Media Guild, 2021 CanLII 761 (CA LA). It was determined that the grounds cited by the CBC for termination amounted to, at most, a minor indiscretion, which were far overshadowed by the breach of the reporter's privacy that enabled the CBC to discover those activities.

The Arbitrator's decision addresses the tension between the privacy rights of an employee and an employer's right to monitor the use of its own computer equipment. The Supreme Court of Canada has previously ruled that Canadians may reasonably expect privacy in the information contained on their work computers where personal use is permitted or reasonably expected: R. v. Cole 2012 SCC 53 (CanLII), [2012] 3 S.C.R. 34 at paras 1-3; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Whether the employee had a reasonable expectation of privacy for use of their work computer depends on assessing the 'totality of the circumstances': R. v. Cole, at para. 40.

In the case at hand, the reporter's colleague had taken the reporter's laptop from his desk, and reviewed messages sent by the reporter...