Canada: Can Employers Search Employee's Emails To See If They Are Part Of A Biker Gang? Arbitrator Rules That Emails Between Spouses Sent On A Work Computer Are Inadmissible As Evidence

Last Updated: June 30 2015
Article by Roberto Ghignone

Most Read Contributor in Canada, November 2017

Saskatchewan Government and General Employees Union v Unifor Local 481, 2015 CanLII 28482 (SK LA)

A Saskatchewan labour arbitrator, Allen Ponak, was required to determine whether the Saskatchewan Government and General Employees Union ("SGEU") could rely on emails between an employee and his wife sent through its email system to terminate him. Specifically, as evidence that the employee lied about being a member of biker gang. The employee, a Labour Relations Officer ("LRO"), and his Union, Unifor Local 481, grieved the Employer's decision.

This decision concerned a preliminary objection to the use of emails as evidence by the Union on the basis that the emails were private and should not have been obtained by the Employer.

The Employer, SGEU, is a union which represents Saskatchewan government workers, including correctional service workers employed by the Ministry of Justice. The grievor was hired as an LRO in November 2010 and assigned to represent employees in correctional services. His job required him to attend various prisons throughout the province of Saskatchewan.

The Employer has a Code of Conduct which requires all employees "to act at all times in full compliance with the letter and spirit of all applicable laws." SGEU also has an Information Technology and Acceptable Use Policy which informs employees that they:

should not expect that their communications or use of the SGEU office network system is either confidential or private. The employer retains the right to access and review the contents of all files stored, copied or sent through the office network system.

With respect to personal use, the Policy states that "Personal incidental use of the network office is not explicitly denied nor explicitly approved."

The Investigation

On January 14, 2015, SGEU's Director of Human Resources and Operations received a call from the Ministry of Justice. The Director was told that grievor "was involved in a bar fight in Prince Albert and was wearing biker group colours or patch." When asked about the incident, the grievor admitted that he had been affiliated with a motorcycle group called "Saints and Sinners" until two years earlier, but stated he was no longer affiliated with any motorcycle club. He also denied being involved in the fight.

The following day, however, the Director learned that the Ministry of Justice was denying the grievor access to all correctional facilities. This was due to an ongoing criminal investigation regarding his involvement in organized crime.

The SGEU decided to investigate further. The Director was given access to the grievor's workplace email account, including deleted emails. In the deleted emails folder, the Director discovered thousands of emails between the grievor and his wife, some of which included photographs. In the Employer's view, the photographs confirmed that the grievor had lied about being a member of a biker group. He was terminated the next day.

The Union argued that the Employer intruded into the grievor's privacy by reviewing those emails. Further, Union argued that the employee had a high expectation of privacy because the emails and the attachments were sent between him and his wife and as such should not be used as evidence.

In support of its position, the Union relied on the Supreme Court of Canada's 2012 decision in R. v. Cole. Although decided in a criminal context, the issue in that case was the constitutionality of a search by police without a warrant of a high school teacher's workplace laptop. The Supreme Court found that the personal use the teacher made of the laptop created information which was "meaningful, intimate, and organically connected to his biographical core" and that this information was protected from unreasonable search and seizure by section 8 of the Charter. The arbitrator also relied on the 2015 decision of Arbitrator Norman in Agirum Vanscoy Potash Operations and United Steelworkers Local 7552 (see Prior Privacy Law Blog Post on Agrium).

The Employer, on the other hand, argued that employees, including the grievor, should not have any expectation of privacy in emails due to its clear IT policies. Further, the Employer took the position that the Supreme Court's decision in R v. Cole did not limit an employer's ability to search emails for legitimate business purposes: including investigating the "serious allegations of misconduct" made in this case.

In deciding whether to admit the emails, the Arbitrator had whether the grievor had a reasonable expectation that these emails would remain private. If yes, the arbitrator had to determine whether the Employer's search was reasonable in the circumstances.

Was there an Expectation of Privacy?

The arbitrator found that the Employer's IT policy: is clear as "anything on that system belongs to the SGEU and it is meant for work purposes only" and that the policy "goes a long way towards reducing any reasonable expectation of privacy that an employee may have".

Notwithstanding the clear policy, the arbitrator found that it did not completely extinguish the grievor's privacy rights. The policy equivocated on the allowance of personal use, in that it "neither explicitly denied or explicitly approved" it. Secondly, and most importantly, the arbitrator found there isn't always a clear distinction between the work and personal spheres: that all employees will at some point use employer provided technology or networks for personal purposes. Overall, a blurring of the lines between personal and work will occur as a consequence of use of email and internet in the workplace.

As such, the arbitrator found that the grievor had a reasonable expectation of privacy in the personal emails sent through his work computer.

Was the Search Reasonable

The arbitrator was then required to determine whether the Employer's search was reasonable. He found that the Employer's search of the emails was "triggered by a legitimate concern on the part of the Employer" and that the allegations that the grievor was a member of a biker gang constituted probable cause.

Although there was probable cause, the arbitrator found that "the search of emails to and from his spouse was not reasonable at the time it was carried out." The information learned about the employee's possible affiliations with biker gangs did not justify searching his personal emails as a first step as the allegations did not relate to misuse of the Employer's IT system.

Rather, the Employer ought to have explored less invasive investigation methods, notwithstanding the wording of its IT policy. A review of the Employee's emails with his wife should only have been undertaken as a last resort and on the basis of additional evidence showing that they were relevant. As a result, the Employer was not permitted to use the emails as evidence.

The approach taken by the arbitrator in this case generally follows the arbitral case law which requires the Employer to justify the workplace investigation methods undertaken. The added wrinkle in this case was that the investigation looked at application of the principles in R. v. Cole to personal emails. The approach taken by arbitrator Ponak, indicates that employers may have difficulty extinguishing all expectations of privacy in emails sent using the workplace system. Additionally, if his approach is followed, employers may face more objections to the use of emails found on their own emails systems in the course of investigations. On the other hand, a clear policy, which bans the personal use of emails or a clear investigative rationale, may assist employers in overcoming objections to use and review of emails which may be considered personal.

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