One might not expect that a case dealing with a teacher facing the criminal charge of voyeurism[1] would have anything to do with employment law privacy issues. Ironically, the decision of the Supreme Court of Canada[2] will likely have considerable influence on such matters as an employer’s right to inspect the private email or web browsing habits of its employees.

The Details of the Case

The accused had admitted his video recordings of the students were made surreptitiously. The judge at trial found that the students had a reasonable expectation of privacy. He did not see evidence that they were made for a sexual purpose.

Unlike the trial court, the Ontario Court of Appeal found that there was evidence of a sexual purpose. To make matters more confusing, this court disagreed that the students had a reasonable expectation of privacy. The Crown then successfully appealed, raising the issue of whether the students indeed had such a reasonable expectation of privacy.

It is the Supreme Court’s views on this issue that have relevance to workplace matters.

The Landscape in the Workplace Prior to Jarvis

It has now become quite common for the employer to require an agreement which limits the employee’s ability to use of the employer’s information technology. It also typically bans or restricts the use of such equipment for personal use, downloading of documents and programs from external sites. There is good reason for the employer to seek such protection to ensure the security and safety of its technology systems.

Access to Employee’s Documents & Email and Texts

However, often the same agreement will state that the employer may gain access to an employee’s emails, web browsing history and other personal information which may be stored on the employer’s hardware. It is the employer’s attempts to access clearly personal aspects of these issues which leads to controversy.

The Leading Authorities

Prior to Jarvis, the leading case was the Supreme Court of Canada decision in R v Cole, which also arose in a criminal context, yet nonetheless offered words of guidance on this subject.

The accused was a high school teacher who had been permitted to use the Board’s laptop computer for personal purposes. He stored personal information on the computer which included nude and semi-nude photographs of a female student.

As a consequence of routine maintenance, the IT department of the school discovered the offending images. The computer was surrendered to the police by the school who accessed the computer without a warrant, thereby raising the issue of a Charter breach.

This, in turn, led to an assessment of the reasonable expectations of privacy in the accused to the contents of the computer as the Charter is intended to protect such interests, which then would allow for state intervention only by legal authority.

It is this question of “reasonable expectations of privacy” in a workplace context which has become significant to employment law. These words will become the mantra to define this issue.

In this case, the employer did allow for personal use of the laptop but also maintained a policy which stated personal email remained private, and added that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board]”. Also the school’s “Acceptable Use Policy” which applied to students and teachers warned the users not to expect privacy in their files.

The Supreme Court stated that in circumstances where personal use of workplace computers is permitted or reasonably expected, the individual has a reasonable expectation of privacy in the personal information which is stored on the machine. Such policies may diminish, but do not eradicate, a user’s expectation of privacy.

The Court continued with the theme that the school board’s policies and practices diminished the expectation of privacy, but did not, however, eliminate it altogether.

The case did involve the actions of the police, clearly a government actor and subject to Charter protections, unlike a private employer. The Court stated that it would defer to a future case the consideration of the rights of the employer to conduct a search of the computer:

The direction, however, of the Court to offer protection to the personal information of employees is clear:

Computers that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the Web. Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (ibid.).

This sort of private information falls at the very heart of the “biographical core” protected by s. 8 of the Charter.

Impact of Jarvis

The Supreme Court noted in Jarvis that the factors to be considered in defining privacy rights will include a person’s location, the form of the conduct by which the privacy is invaded, the nature of the observation or the recording, the activity of the observed person, the part of the body of the person which is recorded. In this particular case, being in a public or semi-public space did not automatically negate all expectations of privacy.

The majority decision also noted, significantly, that our society places a high value on privacy rights.

This case is instructive of the five mile up view of the interpretation of privacy rights. Yes, it involved issues not normally seen in the workplace and also interpreted Charter rights but the tone and disposition will likely remain of influence in many aspects of employment law privacy issues.

These include the usual to and fro arguments of the expected privacy of workplace computer notes of a personal character, or web browsing, even if on employer hardware and software. More importantly inroads many be forthcoming to social media posts and communications. What of the use of the employer’s laptop to store and view pornography ?

This issues remain moot at present. The momentum nonetheless appears evident.

Employers’ View

Companies should be mindful and respectful of employees’ privacy concerns. Even when allowed by contract, employee documents and behaviour patterns when digitally recorded, should be respected when clearly personal. It is quite likely videotaping personal behaviours with no business relevance will be forbidden.

Employees’ Take Away

The written word may well not be the last word on the definition of one’s privacy rights. When these rights are infringed, there may be a civil remedy[3] available or the arguments of discipline based on such evidence may fail.

Get Advice on Workplace Privacy Issues

This is a relatively new and complicated legal topic. It is one central to virtually every employment relationship. Contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647 792 0310 to schedule a consultation.

[1] That offence is committed where a person surreptitiously observes or makes a visual recording of another person who is in circumstances that give rise to a reasonable expectation of privacy, if the observation or recording is done for a sexual purpose

[2] R v Jarvis SCC released

[3] Jones v Tsige