The Ontario Court of Appeal ruled this week that employees can have a reasonable expectation of privacy regarding information stored on work-issued computers and other devices when the employer has not adequately provided otherwise. It was on these grounds that, in R. v. Cole, the Court of Appeal found that the police infringed the Canadian Charter of Rights and Freedoms by searching a teacher's work-issued laptop without a warrant.

Although this is a criminal case, the decision has potentially important implications for employers in Ontario.

Background

The Cole case involved a high school teacher who was charged with possession of child pornography. The school board provided him with a laptop computer for use in his employment. A computer technician at the school accessed the contents of the laptop while doing maintenance on the school's server and found sexually explicit images of an underage female student. A school board official searched the laptop and copied onto another disc the temporary Internet files from the teacher's surfing history. The disc and the laptop were turned over to the police, who searched them without a warrant and subsequently charged the teacher.

Court of Appeal's Decision

In a unanimous decision, the Court of Appeal determined that the police search violated the teacher's Charter rights since he had a reasonable expectation of privacy that personal material on his work-issued computer would not be subject to search by police. In coming to this decision, the Court noted that although the laptop was a work computer owned by the school board and issued for employment purposes, other facts supported the expectation of privacy, including that (i) the school board had given the teacher exclusive possession of the laptop, explicit permission to use the laptop for personal use and permission to take the computer home on evenings, weekends and summer vacation; (ii) the teacher's colleagues used their computers to store sensitive personal information; and (iii) the school board had no clear privacy policy to monitor, search or police the teacher's laptop use.

The fact that the teacher knew that the school board's technicians could access the hard drive of the laptop did not displace his reasonable expectation of privacy against search by the state; however, this expectation was limited by the right of access of his employer's technicians in performing work-related functions.

The Court found that the teacher's Charter rights were not breached by his employer as a result of the technician's search, since it occurred during routine maintenance of the system; nor were his rights breached as a result of the principal's or school board's actions, which constituted proper follow-up. However, the police's warrantless search and seizure of the computer and a disc containing temporary Internet files did breach the teacher's Charter rights. The Court ordered that the evidence be excluded. A new trial was ordered.

Implications for Employers

The Cole case establishes that an employee's privacy interests are not negated simply because a device on which private information is stored is owned by the employer. If employers want to maintain the ability to monitor employees' private communications and use of work-issued computers or PDAs (personal digital assistants), including for criminality, they must explicitly reserve their right to do so in unambiguous policies, codes of conduct or employment contracts. Employers therefore should have a clear privacy policy that expressly sets out any prohibited use of work-issued devices and that reserves their rights to broadly monitor and search work-issued computers, laptops and other PDAs. In addition, to minimize any risk to employers of common law or statutory claims of invasion of privacy, employers could include language in their policies whereby employees consent (if required) to the collection, use and disclosure of their personal information stored on employer-issued devices

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The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.