Are public school teachers protected from unreasonable search and seizure by section 8 of the Canadian Charter of Rights and Freedoms if the search and seizure is performed in the workplace by their employers?
As stated by the Court of Appeal for Ontario in the case of Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476, “There is no doubt that they are.”
Facts
The case concerned two elementary school teachers, Ms. Rai and Ms. Shen (the “grievors”), who were employed by the York Region District School Board and members of the Elementary Teachers Federation of Ontario. They were two of a group of four teachers assigned to teach Grade 2 in the 2014-15 school year.
Shortly after the school year began, problems arose amongst the group members. The grievors felt that one of the other teachers, Mr. Hui, was not an effective member of the group and that he was receiving preferential treatment from the school principal, Mr. Pettigrew. They were concerned about how this might impact their own performance reviews. Ms. Shen contacted the union for advice and was told to keep notes about her concerns.
Following her union’s advice, Ms. Shen started a log using her personal Gmail account. She authorized the second grievor, Ms. Rai, to have access to the log. The log was password protected and accessible only to the two grievors; both could contribute to the log and read it. Although the log could be accessed using an internet browser on a workplace laptop, it was not saved on any workplace drive or on the laptops. It was stored in the Cloud on Ms. Shen’s private Google account.
The content of the grievors’ log was not known to others, but its existence was known by some within the school. Ms. Shen acknowledged that she told another member of the Grade 2 teaching group about the log and that discussions about the log between her and Ms. Rai may have been overheard by other employees.
Three people told Mr. Pettigrew of their concerns about the environment in the workplace – an environment described as “toxic” by the arbitrator – and the possibility that the grievors were keeping a log. Mr. Pettigrew discussed the matter with the Board Superintendent, who advised him to speak with human resources. He did so, and in December the IT department searched the Board’s online files to see if there were any files shared between the grievors. Nothing was found. A search of the school’s hard drives and Google drives also failed to find anything.
On December 16, Mr. Pettigrew entered Ms. Shen’s classroom after classes had ended and she had left for the day. He saw that the laptop computer provided by the school for classroom use was open and touched its mousepad. A document called “Log Google Docs” opened on the screen. Mr. Pettigrew read the document and began to scroll through it. He realized that this was the grievors’ log he’d heard about and used his cellphone to take screenshots of the entire log – about 100 entries in total.
Mr. Pettigrew informed the Board Superintendent that he had obtained the log and read it. The Superintendent instructed him to confiscate the grievors’ classroom laptops and he did so. Subsequently, Mr. Pettigrew downloaded the screenshots he took, printed the pages, and forwarded the material to the Board. The Board searched the confiscated computers but nothing was found on them.
In January 2015, the Board issued letters of discipline to the grievors for failing to conduct themselves in accordance with the Ontario College of Teachers’ Standards of Practice. The letters referred to the fact that the grievors had used Board technology to access and maintain a log during Board time and had made approximately 100 entries about the principal and another teacher. The Board placed written reprimands on their files for three years.
The union grieved the discipline. It sought to have the reprimands rescinded and sought $15,000 in damages for each of the grievors for breach of their privacy rights. The grievance proceeded to arbitration in accordance with the terms of the collective agreement. By the time the lengthy arbitration hearing ended more than three years had passed, and the reprimands had been removed from the grievors’ files. The parties agreed to proceed solely on the claim that the grievors’ “right to privacy” had been breached.
Decision of the Labour Arbitrator
The arbitrator assigned to hear the grievance made the following findings:
- The subject matter of the search was the grievors’ log, which Mr. Pettigrew thought was on a classroom laptop.
- The grievors undoubtedly had a direct interest in their log: only they could access the log and make contributions to it.
- The grievors set up their log to operate privately: it was password protected and not stored on the Board’s laptop or account. Thus, they had a subjective expectation of privacy in their log.
- The grievors’ subjective expectation of privacy was objectively reasonable, as they had taken steps to keep their log private and out of reach of the employer.
- Because Ms. Shen left the grievors’ log open on the Board’s laptop, she had only a diminished expectation of privacy.
- The principal’s duty under s. 265 of the Education Act, to ensure a safe school environment authorized reasonable searches and seizures without prior judicial authorization.
- Ms. Shen had left the log “in plain view on her classroom laptop”, able to be seen by anyone who touched the laptop before it would shut down automatically after 30-40 minutes of inactivity. Mr. Pettigrew had found the log by “pure happenstance” and the arbitrator accepted that he did not know it was on a personal Google Docs account.
- The grievors had left the log in plain sight and should have expected that anyone permitted to look at the laptop may look at what was visible on it. Thus, the grievors had a diminished expectation of privacy in the log that was not breached by the principal looking at what was visible when he activated the laptop.
Ultimately, the arbitrator found that once Mr. Pettigrew found the log, it was reasonable for the Board to think that it was stored on the laptop and to search the laptop. Moreover, the search was conducted in a reasonable manner. Thus, the grievors’ reasonable expectation of privacy was not breached.
Decision of the Divisional Court
The union sought judicial review of the arbitrator’s decision by the Ontario Divisional Court. Justices O’Bonsawin, Kiteley, and Sachs heard the case.
Justice O’Bonsawin, with whom Justice Kiteley concurred, applied a reasonableness standard of review to the arbitrator’s decision and concluded as follows:
- The arbitrator’s finding that the principal had a duty to maintain order and discipline in the school in accordance with s. 265 of the Education Act was reasonable given the “apparently toxic work environment” within the Grade 2 teaching team;
- The arbitrator’s conclusion that the search of the grievors’ online files and the laptop in Ms. Shen’s classroom was based on the evidence was reasonable. Although it “may be true” that the grievors’ log was not evidence of a crime or a breakdown in safety or discipline, it was evidence of a violation of the Board’s policy and procedure that adversely affected the learning atmosphere, and the principal had a duty to develop cooperation and coordination of effort among members of the staff;
- The principal’s inspection of the computer raised no greater concerns because it was not a random or speculative search;
- It was reasonable not to consider other alternatives before searching the Board’s systems for the log, and searching Ms. Shen’s laptop was reasonable because it occurred by happenstance;
- It was reasonable to conclude that the log was not close enough to the grievors’ biographical core to constitute a breach of their privacy;
- The arbitrator did not use the contents of the log to justify the Board’s search;
- The arbitrator found that none of the searches impacted the grievors’ reasonable expectation of privacy, so there was no cumulative aspect of the search to consider; and
- The arbitrator’s reasoning demonstrated justification, transparency, and intelligibility, and the decision she reached was within the range of acceptable outcomes.
Justice O’Bonsawin concluded that the arbitrator’s decision was reasonable. She added this comment, addressing the dissenting reasons of Sachs J.:
As indicated in paragraph 110 she [Sachs J.] approaches her analysis as a balance between the Grievors “rights under s. 8 of the Charter against the statutory objectives that the Principal was seeking to enforce”. I disagree with that analytical framework. Unlike in a criminal context, in a workplace environment, an employee does not have a s. 8 right to be secure against unreasonable search and seizure. The Arbitrator reasonably concluded that the Grievors had a reasonable expectation of privacy that was diminished. The Arbitrator was required and did balance that diminished expectation of privacy against the duty of the employer to manage the workplace and the Arbitrator arrived at a reasonable conclusion.
In her dissenting opinion, Justice Sachs held that the Charter was engaged because the Board is a state actor and the grievors have s. 8 rights in the workplace. The arbitrator was required to balance the grievors’ s. 8 Charter rights against the principal’s statutory objectives under s. 265 of the Education Act.
Decision of the Court of Appeal for Ontario
The Court of Appeal for Ontario reversed the decisions of the labour arbitrator and divisional court. Justice Grant Huscroft wrote on behalf of the court, and began his analysis with brief discussion of the application of the Charter and the issues raised.
[39] The most complete analysis of the application of the Charter to school boards is found in the reasons of Gonthier J. (Bastarache J. concurring) in Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710. Justice Gonthier stated that there was “no doubt” that a school board is a branch of government subject to the Charter by operation of s. 32.
[40] A majority of the court has never held that the Charter applies to school boards, but cases decided subsequent to Chamberlain are premised on the assumption that it does. For example, in R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, the Supreme Court accepted the Crown’s concession that the Charter applied and proceeded on the assumption that schools constitute part of government, and as a result the Charter applied to the actions of a vice-principal. The Supreme Court similarly assumed that the Charter applies to school officials in Cole – again, conceded by the Crown.
[41] I would proceed on the same assumptions accepted by the Supreme Court in M. (M.R) and Cole. Whether the Charter applies because school boards are inherently governmental in nature, such that all of their activities are bound by the Charter, or instead applies only insofar as the school board is performing the governmental activity of maintaining proper order and discipline in the school as required by the Education Act, need not be determined for purposes of this appeal. It is enough to say that s. 8 applies to the actions of the principal and the school board.
[42] There is nothing surprising in this. It is clear the protection of s. 8 is not limited to the criminal and quasi-criminal law context: see e.g., R. v. McKinlay Transport Ltd., 1990 CanLII 137 (SCC), [1990] 1 S.C.R. 627 (s. 8 applies to production of documents under the Income Tax Act); and Comité paritaire de l’industrie de la chemise v. Potash, 1994 CanLII 92 (SCC), [1994] 2 S.C.R. 406 (s. 8 applies to labour inspections under provincial legislation). Justice O’Bonsawin erred in asserting that employees do not have s. 8 rights in a workplace environment.
The relevance of Doré
[43] [Doré v. Barreau du Québec, 2012 SCC 12] is concerned with balancing Charter values and rights with statutory mandates in the context of the exercise of discretionary power. It is not concerned with how Charter values or rights are to be recognized or interpreted. As Chief Justice McLachlin said in her concurring opinion in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 116, Charter rights must be given a consistent interpretation, regardless of the state actor that interprets them:
[T]he scope of the guarantee of the Charter right must be given a consistent interpretation regardless of the state actor, and it is the task of the courts on judicial review of a decision to ensure this. A decision based on an erroneous interpretation of a Charter right will be unreasonable. Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power.[44] The grievors’ Charter rights were alleged to have been limited not by the arbitrator but by the respondent school board. In the normal course, the arbitrator would have been required to determine whether the grievors were subject to an unreasonable search and, if so, whether the school board was entitled to rely on the evidence it obtained as a result of the breach in making its decision to discipline the grievors. The balancing to be done was akin to balancing under s. 24(2) of the Charter, rather than Doré. Given that the discipline was spent by the time of the arbitration, the arbitrator was required only to determine whether the grievors’ s. 8 Charter rights were violated by the search, and as noted above, whether the grievors had a reasonable expectation of privacy is a question of law that is subject to review for correctness.
Justice Huscroft then turned his analysis to a discussion of the reasonable expectation of privacy, writing:
General principles
[46] The principles governing freedom from unreasonable search and seizure are well established. Whether a person has a reasonable expectation of privacy is a normative question: it requires the evaluation of a person’s legitimate interests to determine whether they should be given priority over competing interests. It is not a matter of describing what a person’s expectations are or predicting what they would be. The determination is necessarily a value-laden inquiry that is conducted in fact-specific circumstances.
[47] In R. v. Edwards, [1996] 1 S.C.R. 128, the Supreme Court instructed that a reasonable expectation of privacy is to be determined having regard to the “totality of circumstances”. The following questions are relevant:
- What was the subject matter of the search?
- Did the claimant have a direct interest in the subject matter?
- Did the claimant have a subjective expectation of privacy in the subject matter?
- If so, was the claimant’s subjective expectation of privacy objectively reasonable?
[48] The key question is whether an expectation of privacy is objectively reasonable, and that is informed by several non-exhaustive considerations:
- the location of the search;
- whether the subject matter was in public view;
- whether the subject matter was abandoned;
- whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
- whether the investigative technique was intrusive in relation to the privacy interest;
- whether the investigative technique itself was objectively unreasonable; and
- whether the information exposed any intimate details of the claimant’s lifestyle, or information of a biographical nature.
See R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 32.
The grievors had a reasonable expectation of privacy
[49] Although various aspects of the search were impugned before the arbitrator, the focus of the appeal concerned the principal’s actions in reading the grievors’ log, taking screenshots of the entries, and sending the screenshots to the Board, which then relied on this evidence to discipline them. As I will explain, the arbitrator erred in several respects.
[50] The subject matter of the search was the grievors’ personal messages to one another – their electronic conversation that was stored not in the Board’s computer but “in the Cloud”, which is offsite memory storage space provided by Google.
[51] There can be no doubt that the grievors had a direct interest in the information contained in their log: each contributed to the personal conversation that the Board used to discipline them. That the grievors had a subjective expectation of privacy in the contents of their personal conversations is also clear. Ms. Shen’s decision to use the Board’s computer to access the log neither precludes nor diminishes the grievors’ expectation of privacy. Nor does her failure to close the computer when she was finished using it. This was a careless oversight at best, given that the computer would otherwise time out and shut itself down in a relatively short period of time. The grievors did all that they could to protect the privacy of their communications. Their log was at all times password protected and reserved to their use. The grievors had every reason to expect that their conversation was, and would remain, private.
[52] The grievors’ subjective expectation of privacy was objectively reasonable and deserving of protection. Their log was simply an electronic record of their private conversations. Many private conversations occur electronically rather than in person or by telephone, through email, texting, or similar means. The potential for personal information being revealed in such conversations is great.
[53] I emphasize potential because the objective reasonableness of an expectation of privacy is determined having regard to the potential for personal information to be revealed, not whether the information revealed is in fact personal: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 31-32. The arbitrator erred in concluding otherwise.
[54] In any event, whether information is considered part of the “biographical core” of a claimant is not determinative of the objective reasonableness of an expectation of privacy. The arbitrator found that the information in the grievors’ log was “not close enough to the Grievors’ biographical core” to find that their privacy was breached. In doing so, the arbitrator erred by treating the biographical core concept as a prerequisite to the protection of the right.
[55] Biographical core information is merely a type of information – one factor that may be considered in determining whether, as a normative matter, a reasonable expectation of privacy exists. It is not a prerequisite for that finding: see R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 68 per Binnie J.; see, generally, Chris Hunt and Micah Rankin, “R. v. Spencer: Anonymity, the Rule of Law, and the Shrivelling of the Biographical Core” (2015) 61 McGill L.J. 193, at pp. 211-15.
[56] Thus, definitions of the “biographical core” concept must be approached with care. Although the concept has been held to include “information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, p. 293), it is not to be understood as limited to similar or analogous details. Whether the grievors’ log contained intimate details about them is not relevant to whether the grievors’ private communications should be protected. The grievors’ log was, in essence, their diary. They were entitled to record their private thoughts – including complaints about co-workers and supervisors – for their own purposes and to expect that those thoughts would remain private.
[57] The grievors’ reasonable expectation of privacy in their log was not diminished as it would have been if, for example, the grievors had deliberately provided access to the log to third parties; stored their log on the Board’s laptop computers where it would be widely accessible; or were otherwise indifferent to their privacy. I reiterate that the grievors did all they could to protect their privacy. Ms. Shen inadvertently left the log open on the Board’s computer. The arbitrator’s conclusion that the log was left in “plain sight” and that the grievors had only a diminished expectation of privacy as a result skewed her analysis of the reasonableness of the search.
The reasonableness of the search
[58] The statutory authority for the search was s. 265 of the Education Act, which prescribes the duties of school principals in relevant part as follows: It is the duty of a principal of a school, in addition to the principal’s duties as a teacher, (a) to maintain proper order and discipline in the school; (b) to develop co-operation and co-ordination of effort among the members of the staff of the school.
[59] These provisions establish authority in principals to make decisions in a wide range of circumstances governing students and staff alike. This authority is properly interpreted broadly, given principals’ educational and administrative responsibilities.
[60] The authority of principals to search students is well established: see e.g., M. (M.R.). The focus in M. (M.R.) is on the responsibility of teachers and principals to ensure student safety, and the need for flexibility to deal speedily and effectively with breaches of school regulations and to discipline problems that may arise. These considerations are not likely relevant in the case of teachers and others who may be working in the school, but they cannot be ruled out. For example, in R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, a principal seized a camera pen that was being used by a male teacher to make surreptitious video recordings of female students.
[61] Searches carried out for regulatory or administrative purposes do not raise the same concerns as searches in the context of criminal law and the standard of reasonableness may be met more easily. I am prepared to assume, for the purposes of this case, that the authority of principals may authorize a power of search and seizure concerning others who may be in the school, including teachers. That said, the rationale supporting such authority concerning students suggests that this power may seldom be exercised with teachers, and the nature of the search permitted will be limited.
[62] In M. (M.R.), the Supreme Court held that the general rule requiring prior authorization by a warrant, established in Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, was not feasible in the context of the search of a student by a school authority. The court added that the criminal law standard – reasonable and probable grounds to believe that an offence has been committed and that evidence can be found at the place of the search – was also unworkable concerning students. The need to act quickly to protect students and provide an orderly atmosphere for learning reduces students’ expectation of privacy and permits a “more lenient and flexible approach” to searches and seizures by principals than by the police: M. (M.R.), at para. 47. It is enough if there are reasonable grounds to believe that a school rule has been or is being violated and that evidence will be found in the location or on the person of the student subject to search and seizure.
[63] M. (M.R.) counsels flexibility and consideration of all the circumstances in determining whether a search and seizure is reasonable. The court added that school authorities are in the preferred position to determine whether reasonable grounds exist. That said, the considerations set out in M. (M.R.) are based on concerns about students – concerns that are unique to students given their age and the responsibility school officials have for their welfare.
[64] School authorities such as principals are not responsible for the welfare of teachers and staff in the same way as students, and the need to act quickly concerning teachers and staff is less likely to arise. In my view, concerns arising out of employment relationships in the workplace are unlikely to justify a similarly broad and flexible search and seizure authority. Branding workplace relationships “toxic” does not alter this.
[65] It is not possible to prescribe the circumstances in which a search and seizure will be reasonable in workplaces governed by the Charter. Workplaces differ dramatically, and whether a reasonable expectation of privacy exists depends on the unique circumstances of each case. For example, employees engaged in policing or security services may have lesser expectations of privacy, as their employers may have a greater need for the authority to conduct searches and seizures in the workplace.
[66] All of this is simply to emphasize the normative nature of the reasonable expectation of privacy: all the relevant circumstances must be considered in determining whether a search and seizure is reasonable in a particular case.
[67] The arbitrator found that although the principal had been looking for the grievors’ log, he found it by happenstance. This finding in no way absolves the Board’s responsibility for the principal’s subsequent actions or renders the search reasonable. Once the principal realized he was looking at the grievors’ log, it was as though he had found their diary. He had no legitimate purpose in reading it, let alone taking screenshots of it and submitting it to the Board. The principal failed to respect the grievors’ reasonable expectation of privacy.
[68] This was not a case in which the principal stumbled across a dangerous situation that required urgent action. He had not discovered anything dangerous at all. What he had discovered was the private conversations of the grievors. It was a record of thoughts he was not entitled to know.
[69] According to the arbitrator, there was a “judgmental quality” to the log entries. The arbitrator appears to have fixed on this characterization to justify the principal’s actions. Because the log was concerned mainly with the grievors’ views about other people, the arbitrator said it was “far from personal or intimate information about either of them”, and so not close enough to the grievors’ biographical core to breach their privacy. Moreover, the principal had obligations under the Education Act to protect a safe, healthy, and orderly learning environment. Once he saw the log and reviewed it, he was entitled to conclude that it contained information that may be contributing to a toxic work environment at the school.
[70] This reflects a clear misunderstanding of both the nature of the log and the grievors’ s. 8 rights. A person’s thoughts about others are no less personal to them than their thoughts about themselves. The grievors were within their rights to be judgmental – to criticize the school, their fellow employees, and the principal in their private communications. Their private thoughts were not to be mined by the school principal to address his employment relations concerns, no matter how innocently the principal may have come upon the log or how pressing his concerns were.
In the result, Justice Huscroft found: (a) the arbitrator erred in interpreting and applying the law concerning the grievors’ section 8 rights and reached an unreasonable decision; and (b) the majority of the Divisional Court erred in asserting that the grievors did not have the right to the protection of s. 8 in their workplace and erred in asserting that the arbitrator’s decision was subject to two levels of deference. The principal’s actions in reading the log, taking screenshots of it, and sending it to the Board violated the grievors’ reasonable expectation of privacy and constituted an unreasonable search under s. 8.
Accordingly, the Court of Appeal allowed the appeal and quashed the award of the arbitrator.
Commentary
I start with the observation that these reasons are an absolute delight to read. Clear, comprehensible, succinct. Everything for which a jurist should strive.
Second, I note that this decision picks up where the Supreme Court of Canada left off in Cole, about which I wrote in my very early post Supreme Court of Canada: Employees’ Rights to Privacy with Work Equipment.
Cole was a criminal case, also involving a teacher whose computer was searched by school officials. In that case, the Supreme Court of Canada recognized that employees had a privacy interest in the contents of their employer-provided devices and that the fact that the employer had provided the device to the employee was not in itself determinative.
What the ETFO case says is that section 8 of the Charter applies in the case of searches of public-school teachers. Does it make sense that such rights would apply to other “government” employees, such as municipal employees, police officers, etc.? Yes, but those words aren’t quite said out loud. What does this mean for employees employed in the private sphere, such as retail employees? Less certain. While the application of the Charter itself is less obvious, it will be difficult for a court to overlook the values expressed in the Court of Appeal’s analysis in this decision when considering how to approach similar evidence.
The other thing to observe is the change in how employers may now monitor and access their employee’s electronically stored data. As of October 11, 2022, any employer in Ontario that, on January 1 of any year, employs 25 or more employees shall, before March 1 of that year, ensure it has a written policy in place for all employees with respect to electronic monitoring of employees: Ontario Employment Standards Act, 2000, section 41.1.1.
The law goes on to prescribe that the written policy with respect to electronic monitoring must contain the following information:
1. Whether the employer electronically monitors employees and if so,
i. a description of how and in what circumstances the employer may electronically monitor employees, and
ii. the purposes for which information obtained through electronic monitoring may be used by the employer.
2. The date the policy was prepared and the date any changes were made to the policy.
3. Such other information as may be prescribed. [More on that in a second.]
An employer that is required to have a written policy with respect to electronic monitoring is required to provide a copy of the policy to each of the employer’s employees within 30 days from the day the employer is required to have the policy in place or, if an existing policy is changed, within 30 days of the changes being made. Similarly, an employer that is required to have such a policy is required to provide a copy of the policy to a new employee within 30 days of the day the employee becomes an employee of the employer or within 30 days from the day the employer is required to have the policy in place, whichever is later.
Subsection (7) of section 41.1.1 makes patent though that, “nothing in this section affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees.”
Again, the law only mandates that employers tell you whether it is electronically monitoring you and if it is, to provide you with a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer. The ESA requirements do not establish a right for employees not to be electronically monitored by their employer and do not create any new privacy rights for employees.
While as of authoring this post the Ontario government is yet to “prescribe” any information that must be included in a policy, in its “Guide to the ESA”, the Ontario Ministry of Labour has published some “guidance:”
“Electronic monitoring” includes all forms of employee and assignment employee monitoring that is done electronically. Some examples include where an employer:
- uses GPS to track the movement of an employee’s delivery vehicle
- uses an electronic sensor to track how quickly employees scan items at a grocery store check-out
- tracks the websites that employees visit during working hours
What is required to be captured in the employer’s policy is not limited to:
- devices or other electronic equipment issued by the employer
- electronic monitoring that happens while employees are at the workplace
For example, if the employer is electronically monitoring the employee through the employee’s own personal computer that is used for work purposes, the policy must capture that. It applies equally where the employee works from home, at the employer’s workplace, or under a hybrid “workplace/home” model.
If the employer does not electronically monitor employees, the policy must specifically state this.
All of the above begs the question: What if the School Board had told its employees that it intended to monitor everything they typed into their school-provided laptop, such that they should not have any expectation of privacy in such information?
My sense: Such a policy, if it was both clear and provided to the employees before they began their log, would significantly diminish the employees’ reasonable expectation of privacy. Had these employees been expressly told that their keystrokes were being recorded, such that every character could be seen by their employer, and they still elected to use their employer-provided device to write the log, then I believe the case may turn out differently. It would be difficult for an employee to argue she had an expectation of privacy in data prepared using a device installed with keystroke software. Does this mean I am endorsing employers’ use of such technology? No. Just observing that once an employee has been told what the employer is up to, and the uses to which such information may be put, an employee is going to be hard pressed to argue she believed the information was intended to be private.
Takeaways for Employers
The takeaway for employers should be obvious: You need a policy on electronic monitoring of employees.
Not only is such a policy soon to be a statutory requirement, as the ETFO case demonstrates, but the absence of a policy can also lead to ambiguity, which can lead to litigation, which is a distraction and opportunity cost.
Takeaways for Employees
The ETFO decision is a positive restatement of the Court of Appeal’s position on employees’ right to privacy in employer-provided devices. The courts have been clear that employees have a reasonable expectation of privacy, even in devices provided to them by their employer. Confirmation that Charter values are to inform any analysis on searches of employee property is a further cementing of this principle.
However, while the court’s approach has been consistent, recent legislative changes in Ontario will likely serve to change the court’s analysis. Now that employees must be told about their employer’s electronic monitoring intentions, where employees elect to proceed with knowledge of the extent to which they may be monitored, courts may take a more limited and sceptical approach to privacy.
Contact Me
Have a workplace privacy issue? Need a policy with respect to electronic monitoring of employees? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is a part-time professor at Algonquin College teaching Employment Law. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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