The Supreme Court of Canada has recently released its decision
in R. v. Cole which deals with work
computers and an employee's reasonable expectation to
While this was a criminal case, the issues addressed are
relevant to employers as it deals with an employee's right to
privacy when using a work computer.
The case involves a high-school teacher who was charged with
possessing child pornography. Pictures of underage female
students were discovered on his work-issued laptop by a technician
who was performing regular maintenance activities. It was
known and permitted by the employer that the laptop would be used
for personal purposes.
The Supreme Court ruled that computers used for personal
purposes, regardless if they are found in one's home or in the
workplace, generate information that is "meaningful, intimate,
and touching on the user's biographical core".
Therefore, the Supreme Court ruled that Canadians may
reasonably expect privacy in the information contained on their
work computers where such privacy would be permitted or reasonably
expected. Policies and practices implemented in the workplace
may diminish an individual's expectation of privacy in a work
computer but they do not remove the expectations entirely.
IMPLICATIONS FOR EMPLOYERS
While the Supreme Court decision deals with police actions, it
still contains implications for employees' use of work
There now exists an expectation of an employee's privacy
even when using an employer's property. While the case
centred on a laptop it is likely that the decision may be extended
to other electronic devices such as smart phones, iPads, tablets,
In order to determine the amount of privacy to which an employee
is entitled, the case further emphasizes looking at all surrounding
circumstances of the situation such as ownership of the device, its
use, and the employment policies in place.
Employers should draft clear, reasonable policies that address
the type of information that can be accessed, what is permitted use
of the work-issued devices, how the devices will be monitored, and
the consequences of contravening the policy. Employers may
also want to limit who has access to which devices and clearly
state the permitted uses of the devices.It is also very important
to enforce these policies as to not set a contrary precedent.
While these policies will not completely remove an
employee's expectation of privacy, they will reasonably
diminish that expectation.
Prepared with the assistance of Mariana Fonar, student at
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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