It has been widely reported that the Ontario Court of Appeal in R. v. Cole (2011 ONCA 218) ruled that employees have a reasonable expectation of privacy in the personal use of a work laptop. Some commentators are reporting that now, in Ontario, this decision has the effect of prohibiting employers from monitoring employees through the use of technology, even if the employer owns the computers. In fact, to the contrary, the decision makes it clear that employers who articulate and implement clear policies and procedures addressing the use of the employer's electronic communications systems and equipment are able to control and monitor how their equipment and systems are used.
Employers may wish to monitor use of electronic systems for a variety of reasons, such as to assess productivity, to ensure employees are not breaching confidentiality obligations, or to confirm that intellectual property belonging to others is not being misused. Additionally, in Ontario following the amendments to the Occupational Health and Safety Act (OHSA) in June 2010, employers may have a need to monitor based on a statutory requirement. Now in Ontario, under the OHSA employers are required to provide harassment free workplaces, and/or to protect against workplace violence, and to provide procedures for the investigation of such complaints. As part of their statutory compliance regime, employers may want the ability to review emails of the parties involved in the harassment complaint. As well, post-incident as part of its safety investigation an employer may wish to examine the use of cell phones or PDAs immediately prior to the incident. Absent a clear policy that permits monitoring, the Cole decision may provide the basis for an employee, who is alleged to have harassed a co-worker electronically or who may have been using a cell phone contrary to instructions immediately prior to an incident, to argue his right to privacy prevails over the employer's obligation to review his emails in its harassment or incident investigation… and litigation may follow.
A teacher was arrested and charged with possession of child pornography on his employer's laptop. The pornography included nude photos of a student at the school that the student forwarded to a classmate. The teacher accessed the photos from the recipient's laptop in the course of his job and then downloaded the photos to the laptop the teacher used. In the course of its maintenance routine, the employer discovered the photos and searched the laptop. It copied onto a disc the photos of the student and the Internet surfing history of the teacher (which showed visits to a number of pornographic sites). The disc and the laptop itself were both provided to the police. Believing they had the consent of the employer, as owner of the laptop, the police searched the content of the computer and the disc provided by the employer without first obtaining either a warrant or the employee's express consent.
The teacher's lawyer at his criminal trial argued the evidence obtained by the police in its search should not be admitted in the trial, as no warrant was obtained, which breached the teacher's rights under the Charter of Rights and Freedoms to be free from unreasonable search and seizure. The lawyer argued the employee had a reasonable expectation of privacy in the personal material he had password protected and stored on the employer's computer.
The Court ruled that the teacher did have such an expectation for the password protected content stored on the laptop (which had been copied onto the disc and reviewed by the police). The Court excluded that information because the Charter right of protection from unreasonable search had been breached by the police failing to obtain a warrant before conducting the search.
What must be emphasized is that the conclusion of the Court to exclude the evidence addressed the employee's right of privacy with respect to searches by the police. That part of the decision turns on the application of the Charter, which does not apply generally to private sector employers. The Court did not hold that an employer (even one subject to the Charter) was precluded from undertaking searches of its property, although, as a result of this decision, an employer's ability to undertake more than basic administrative searches may be restricted unless there is a clear, unambiguous policy in place that clearly warns employees that the employer may review the contents they store on company systems.
In Cole, the employer owned the laptop. However, the Court concluded that the teacher had a reasonable expectation of privacy in the contents of the information he stored on that computer for the following reasons:
Employers who seek to retain the ability to monitor content stored on and the use of their electronic systems by employees need to compare their own workplace practises to those described in this decision, and then, if appropriate, develop policies or practises that are different than the actions of this employer.
The Cole case establishes that use of the employer's equipment is not enough to permit an employer the automatic right to monitor an employee's use of the employer's electronic systems. The Cole decision makes it clear: if employers wish to monitor usage of their equipment and systems they need to take specific steps to notify users that users can have no expectation of privacy when using the employer's systems. Such steps include:
The OHSA anti-harassment caselaw and the common law privacy caselaw are both developing areas of the law in Ontario. But the cases in both areas suggest that it is prudent to have carefully crafted privacy and technology use policies that describe the rights of the employer to monitor communications transmitted over or stored on its electronic systems.
For assistance in reviewing or developing policies and procedures to ensure your company remains able to review and monitor e-mail and Internet access, please contact members of our employment services practice.