Canada: B.C. OIPC Adjudicator Applies Recent Decision On Employer Monitoring Of Corporate Vehicle Use In Two Related Cases

Last Updated: November 14 2013
Article by Deanna Brummitt and Tamara Hunter


B.C. Information & Privacy Adjudicator, Ross Alexander, recently released his Orders in KONE Inc., 2013 BCIPC No. 23 ("KONE"), and ThyssenKrupp Elevator (Canada) Limited, 2013 BCIPC No. 24 ("TKE").

In KONE and TKE, the Adjudicator adopted and applied the reasoning of the B.C. Information & Privacy Commissioner's decision in Schindler in which she considered the application of the B.C. Personal Information Protection Act ("PIPA") to an employer's monitoring of GPS data from corporate vehicles. KONE, TKE and Schindler are companies that repair and maintain elevators and escalators. Each company had implemented GPS-enabled data collection systems to monitor employees while they use corporate vehicles (and cell phones, in the case of KONE) at work. The Complainants were all maintenance and repair mechanics who, during the course of their employment with the respective companies, travelled to various customer sites to perform repair and maintenance work on elevators and escalators. The Adjudicator reached different conclusions in KONE and TKE regarding compliance with the notice requirements under PIPA based on how the technologies were rolled out to the employees, including the Complainants. Therefore, read together, these Orders provide useful lessons for employers on what to do when introducing similar technologies to their own workforces.

The Facts in TKE

TKE maintained a fleet of vehicles that it assigned to its mechanics to use in performing off-site maintenance and repair work and they installed the same technology used in Schindler - a GPS and engine monitoring system called "Fleet Complete" - to monitor their fleet of vehicles. The system collected a variety of information about the vehicle use such as distance travelled, speed, incidents of harsh accelerating or braking, idling time, when the vehicle was turned on and off, and location of the vehicle. There were thus two types of information gathered by Fleet Complete: GPS data about the location of the vehicle and engine status data about the operation of the vehicle.

The employer put forward several justifications similar to those advanced in Schindler for employing Fleet Complete, specifically, the technology allowed the employer to dispatch more efficiently, schedule vehicle maintenance more efficiently, identify and address unsafe driving habits, track employee time at job sites, help locate employees who were unaccounted for, and locate lost or stolen vehicles. The employer maintained that it did not continuously monitor this information but instead programmed Fleet Complete to generate "exception reports" which summarized any occasion where a rule or policy appeared to have been broken.

The employer had a general privacy policy but did not have a privacy policy specific to Fleet Complete.

The Facts in KONE

KONE also maintained a fleet of vehicles assigned to its mechanics to use in performing off-site maintenance and repair work. The GPS technology it used was embedded in the employer owned cellular telephones given out to its mechanics, including the Complainant. The system collected information about the location of the Complainant at any given time and this information was used to verify time reporting and to operate the employer's "Dynamic Dispatching" system. However, information was only collected when the mechanic's manually set their phones to "on-duty". When the phone was set to "off-duty", such as between shifts or during a lunch break, then no information was collected.

The employer stated the purpose of collecting the GPS information was to ensure accurate client invoicing, act as a time clock for employees to verify employee attendance and payroll, to optimize client response times, and to quickly locate employees in the event of an accident or emergency. Similar to TKE, the employer maintained that it was not continuously monitoring the GPS information but used it to produce weekly "accuracy reports" comparing the Complainant's reported location with the GPS information. Only where there was a significant discrepancy would the employer be alerted and the information be examined further.

The employer had a general privacy policy applying broadly to the collection of employee personal information. In addition, KONE provided a letter to its mechanics, including the Complainant, notifying them it was activating the GPS on their phones in advance of doing so. KONE provided detailed PowerPoint presentations to all employees explaining how the GPS enabled phones worked and how the information would be tracked and used.

The Decision in TKE

Following Schindler, the Adjudicator determined that the information collected constituted employee personal information, but that its collection and use was reasonable for the purposes of establishing, managing, or terminating an employment relationship and therefore acceptable under PIPA. Specifically, the Adjudicator accepted the employer's submission that it has a legitimate interest in ensuring that employees are driving company vehicles lawfully, and in compliance with company policies, and to verify time reporting of mechanics. Further, there was no evidence that the employer was using the information for any purpose other than to manage the employment relationship.

The Adjudicator made several notable comments:

  • He explicitly rejected the approach advocated by the Complainant that the least privacy intrusive alternative must be followed regardless of reasonableness or cost;
  • The fact that the given information collected related to the mechanics' employment duties and operation of company vehicles lessoned the sensitivity of that information;
  • The fact the employer was not continuously monitoring the information generated by Fleet Complete was an important factor;
  • There was no practical alternative to Fleet Complete that would fulfill the objectives identified by the employer; and
  • Monitoring and questioning employees about compliance with company rules and use of company property is commonplace and the use of the GPS enabled technology to do so is not an affront to the dignity of the Complainant.

However, the Adjudicator concluded that the employer failed to give appropriate notice of the collection and use of employee personal information as required by PIPA. While the employer had given general notice to the mechanics that Fleet Complete was collecting "personal information", it failed to give specific notice that it was collecting engine status information such as incidents of harsh braking and rapid acceleration as well as the fact the information generated by Fleet Complete was being used for employee attendance and payroll verification.

The Adjudicator accepted the employer's submissions that the appropriate remedy for failing to fully meet the notice provisions under PIPA was to order that the employer provide proper notice1.

The Decision in KONE

The Adjudicator also followed and applied Schindler in KONE, determining that the information collected constituted employee personal information, but that its collection and use were acceptable under PIPA. The analysis applied by the Adjudicator in KONE, and the conclusions reached, were largely similar to those applied in TKE. However, there are several comments of note in the KONE Order:

  • The Adjudicator held that the fact the GPS was embedded in the phone used by the Complainant meant the information collected was more sensitive (although ultimately not unduly sensitive) than the information collected about company vehicles by Fleet Complete; and
  • The Adjudicator held that KONE gave appropriate notice as required by PIPA by having a general privacy policy in place, providing specific written notification to employees of the pending collection of GPS information, and giving detailed PowerPoint presentations on the technology and its uses.

As with TKE, the Adjudicator recommended that the employer develop a policy which applies specifically to the GPS enabled phones setting out the purposes for which the GPS information may be collected, used or disclosed.

Lessons from TKE and KONE

TKE and KONE reiterate the finding in Schindler that an employer's monitoring of the use of its business assets by employees will usually be considered a collection and use of "employee personal information" (at least by the B.C. Commissioner and Adjudicators2 ) and thus will be protected information under PIPA. As with Schindler, a take away from the Adjudicators' Orders in TKE and KONE is that employers using GPS and other electronic monitoring equipment should be careful to ensure that the information being captured relates only to the employment relationship and does not inadvertently capture private information not related to this relationship.

In addition, what is clear from TKE and KONE is that it is critical to provide proper notice to employees prior to rolling out GPS technology which will capture employee personal information. Further, this notice should be delivered prior to using the GPS technology in order to satisfy the notice requirements under PIPA. The quality of the notice also matters -general notice that personal information is being collected will not suffice, and more specific notice about what kinds of information are being collected (and for what purposes) will be required. While recognizing that PIPA does not require a written privacy policy with respect to Fleet Complete, the Adjudicator recommended that both TKE and KONE prepare such a policy setting out the purposes for which Fleet Complete information may be collected, used, or disclosed. This suggests that employers should seriously consider preparing a separate written policy that applies to GPS-enabled technologies or any other technologies it introduces to the workplace which collect information which could be characterized as "employee personal information".

Further, TKE and KONE emphasize that how a company uses GPS or electronic monitoring information is important. Both TKE and KONE were not continuously monitoring the GPS information and instead had set up systems where the employer was alerted only when certain actions or behaviours were detected. This was an important factor in the Adjudicator's analysis.

Meanwhile, in Québec...

There is a civil claim pending in the Superior Court of Québec3, where an action has been brought by the International Union Of Elevator Constructors against KONE seeking injunctive relief against the company's "directive and decision" to impose on its employees the carrying of PDAs with GPS technology The Union is alleging that the "directive" is illegal because it is contrary, inter alia, to an employee's privacy rights. Judgment has yet to be rendered in this Action.

Specific Québec legislation will be considered by the Superior Court of Québec in this proceeding - article 43, paragraph 2 of Québec's Act to Establish a Legal Framework for Information Technology states: "unless otherwise expressly provided by law for health protection or public security reasons, a person may not be required to be connected to a device that allows the person's whereabouts to be known."

Going Forward

The underlying theme from the Schindler, TKE and KONE Orders is that employers should strategically and carefully plan the introduction of GPS or electronic monitoring into the workforce in order to comply with PIPA or other applicable privacy legislation. Careful thought should go into how the technology will operate, what types of information it will collect, whether the information collected is reasonably connected to a legitimate employment management purpose, and how to properly give notice to employees.

Members of Davis LLP's Privacy Law Compliance Group are experienced in advising clients with respect to these complicated issues and would be pleased to assist your organization.


1 The Adjudicator has since confirmed that TKE subsequently provided the necessary notice to employees.

2 See Otis Canada Inc. v International Union of Elevator Constructors, Local 1, [2010] B.C.C.A.A.A. No. 121 where the arbitrator reached a different conclusion.

3 Union internationale des constructeurs d'ascenseurs, local 89 c. Ascenseurs Kone (Court File No. 500-17-064932-117).

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.