Canada: Ontario Court Decision Affirms Need For Express Technology Use Policy

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.

R. v. Cole

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.

Expectation of Privacy

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:

  • The employee had exclusive use and possession of the laptop.
  • The exclusive use and possession included during evenings, weekends and summer vacation. There was no rotation of laptops at any time.
  • The employer's manual expressly authorized personal use of the computers assigned to the teacher as long as the use did not adversely affect business activity.
  • The employee stored photos of his wife and other personal information on the laptop, protected by a password unknown to the employer.
  • Other teachers stored financial and banking information on the laptop provided by the employer, so there was a custom and practise at the workplace of personal use of the employer's laptop.
  • There was no written employer policy that permitted a search of the contents of the computer.
  • There was an employer policy that permitted employer access to emails only and then only in specific circumstances.
  • There was an acceptable usage policy that applied only to students. This policy required students to sign an Acceptable Usage Agreement which expressly stated that the teachers could access and monitor the emails, work and material saved on laptop hard drives of the students. No such policy applied to teachers.
  • The employer did not regularly review or monitor the contents of the teachers' laptops.

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.

Employer Considerations

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:

  1. Publishing clear, unambiguous policies governing the employer's right to access data (of all types) on all its systems. The policies (which could be part of a technology use policy or a standalone monitoring policy and a privacy policy) must clearly articulate that employees using the employer's systems and equipment can have no reasonable expectation of privacy over any data found on a computer or the employer's network.
  2. Ensuring that employees acknowledge they have read, understood, and agreed to abide by the relevant policies and periodically, using so-called click agreements as reminders when employees log into the employer's systems.
  3. Managing employee privacy expectations about personal information stored on employer owned laptops by developing a rotation system of company laptops.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.