Canada: Employee Privacy Revisited

"Privacy" is a hot button topic just about everywhere you look. Employee privacy has always been an issue, whether related to surveillance cameras on the shop floor or bag searches. Of course, with the integration of new workplace technologies, workplace privacy issues have continued to evolve.

The tools of the modern workplace typically consist of a computer (often a laptop) and a smart phone, both of which have access to the employer's computer servers and networks. It would be extremely naive to suggest that employees restrict their use of these employer-supplied devices and networks to business only. The undeniable fact is that employees use these devices to send personal emails, store personal files and for personal internet access.

Accordingly, the workplace privacy question most often asked these days is to what extent an employee's personal use of employer-provided hardware and infrastructure is considered "private" and therefore deserving of protection?

In the Alberta Court of Appeal case of Poliquin v. Devon Canada Corporation, the Plaintiff, Mr. Poliquin, was dismissed for sending pornographic, racist and derogatory emails using a workplace computer. In determining whether the employer was within its rights to monitor Poliquin's personal email communications, the court engaged in an analysis of whether Poliquin had a "reasonable expectation of privacy" in those communications.

The court ultimately found that, noting the existence of several policies relating to computer usage and workplace conduct, Poliquin did not have an expectation of privacy with respect to the impugned email communications. Moreover, the court concluded that employers have a right to monitor employee use of the employer's equipment and that employees have no expectation of privacy in activities conducted on workplace computers. This has been the generally accepted knowledge up until the recent Ontario case of R. v. Cole.

Richard Cole was a high school teacher with the Rainbow District School Board. He was provided with a laptop computer for use in teaching a communication technology course and for the purpose of supervising a student laptop program. Cole also had access and administrator rights to the school's computer network. Using those access rights, Cole remotely accessed a student computer where he found explicit nude photos of a Grade 10 girl. Cole copied the explicit photos onto the hard drive of his school-issued laptop.

When a computer technician employed by the school remotely accessed Cole's hard drive to perform a virus scan the technician located a secret file on Cole's hard drive containing the nude photos. This was reported to the school principal who then instructed Cole to surrender his computer. On further investigation it was found that, in addition to possessing explicit photos of a grade 10 student, Cole had also used his school-issued computer to view a large number of pornographic images on the internet. The computer and investigation findings were handed to the police and Cole was charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.

The central issue at the criminal trial, and on appeal, was whether Cole had a reasonable expectation of privacy with respect to files stored on his school-issued laptop. The Ontario Court of Appeal found that, indeed, Cole did have a reasonable expectation of privacy with respect to the personal files on the laptop. In support of this decision, the Court of Appeal noted the following factors:

  • Teachers had an express right to use laptops for personal use in addition to employment purposes and the laptops were password protected;
  • There was a lack of information in the school's policies and procedures relating to the searching of workplace computers and privacy issues in general; and
  • Cole's limited knowledge of the school's monitoring of his computer was not enough to displace the reasonable expectation of privacy that would otherwise exist in the personal information contained on his school-issued computer.

While Cole would appear to place some restrictions around an employer's right to monitor its employees' personal use of workplace computers, it must be noted that this case was decided in the context of the Canadian Charter of Rights and Freedoms (which was applicable to the school board) and the police's ability to access Cole's computer files without a search warrant. It is unclear whether the court would have found a reasonable expectation of privacy to exist had this been a civil case with an employer not subject to the Charter. Nevertheless, the case does provide some authority for limiting employers' rights to monitor personal computer use in the future.

Quite apart from the Cole and Poliquin cases, no privacy discussion (employee or otherwise) would be complete without mention of the recent Ontario Court of Appeal decision in Jones v. Tsige which recognizes a new tort of "intrusion on seclusion." In a nutshell, a person commits the tort of intrusion on seclusion where he or she intentionally and recklessly invades, without lawful justification, another person's private affairs or concerns and a reasonable person would have regarded such an invasion as highly offensive, causing distress, humiliation or anguish.

The warning to employers is that intruding upon an employee's reasonable expectation of privacy may now expose an employer to civil liability.

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.

Similar Articles
Relevancy Powered by MondaqAI
Aikins, MacAulay & Thorvaldson
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Aikins, MacAulay & Thorvaldson
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions