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.
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
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
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
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
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
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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