SCC Confirms Risks Of Employee Privacy Are Real

In a widely anticipated decision on the issue of workplace privacy, the Supreme Court of Canada released reasons in R v Cole on October 19, 2012. The Supreme Court confirmed that, in circumstances where personal use is permitted or reasonably expected, employees can have a reasonable expectation of privacy in personal data stored on devices owned by their employer.1

While the existence and scope of an employee's privacy expectation will depend on the "totality of the circumstances", including workplace policies, it is now abundantly clear that an employer's ownership of electronic systems and equipment will not be determinative. Nor will policies against personal use always govern when the actual customs and practices of the workplace depart from those policies.

Contrary to any suggestion otherwise, the decision does not mean that employees have an automatic right of privacy or that employers are forbidden from monitoring the electronic activities of their employees. Rather, the decision confirms that employers who articulate and implement clear policies and procedures addressing the use of the employer's systems are able to control and monitor how their electronic equipment and systems are being used. The scope of any employee privacy expectation, if it exists at all, will be determined in the context of the employer's stated policies and practices as implemented in the workplace.

There are a variety of reasons why employers are permitted and encouraged to monitor the activities of their employees involving their electronic systems. These include assessing productivity, confirming the appropriate use of intellectual property, or conducting investigations related to the employer's statutory obligations, such as the duty to ensure a harassment-free workplace under applicable human rights or health and safety legislation. In this case, the school board employer was expressly authorized to review the employee's information on its systems under its statutory obligation to ensure a safe school environment.

In the absence of a clear policy that permits monitoring, the Cole decision could open the door for an employee to argue that their reasonable expectation of privacy should prevail over the employer's obligation to review e-mails or other data stored on a workplace computer. This means employers should carefully consider and implement technology use policies that are clear, express, and unambiguous-and take meaningful and consistent steps to those policies.

R v Cole

Richard Cole, a former teacher, was arrested and charged...