Canada: Balancing Technology And Privacy At Work

Last Updated: September 10 2006

Article by Andrea York & Lisa Carty, © 2006, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Privacy Law, August 2006

The use of biometric technology in the workplace is gaining the interest of many as technology improves and security concerns escalate. However, employers attempting to collect biometric information from employees have been faced with complaints and grievances. Employees and unions may oppose the use of biometrics because of privacy concerns. The recent court and arbitral decisions discussed in this article make it clear that courts and arbitrators find it challenging to balance the privacy rights of employees and the legitimate business needs of employers in applying privacy laws to the employment relationship.


Biometric technology uses an individual’s unique physical attributes, such as a fingerprint or voice, to identify that individual. In most cases, the technology involves scanning the physical attribute, reducing it to digital form and storing it on a system so that it can be used for comparison purposes. Each time the individual wishes to gain access to the place or system protected by the biometric technology, the physical attribute is again scanned and the new scan is compared against the stored sample. If the two match within a preset threshold, the individual is granted access. Among other things, biometrics can now be used in time clocks to verify employee work hours, for security purposes in door locks, and in computer and telephone systems.

Turner v. Telus communications inc.

In Turner v. Telus Communications Inc. (Telus), four employees launched a complaint under the Personal Information Protection and Electronic Documents Act (PIPEDA) against their employer, Telus. They alleged that Telus had breached PIPEDA by implementing a speech recognition security program. The program required each employee to provide biometric information in the form of a voice print, which would be stored in a digital form and then compared to the employee’s voice when he or she was attempting to access Telus’ systems from a remote location. The speech recognition program was set up for the purpose of protecting customer personal information and other confidential information from unauthorized access by third parties. Since a voice print is unique to an individual, only the employee would be granted access. The program was believed to be more secure than the password system that had previously been in place.

Under PIPEDA, organizations must obtain an individual’s voluntary consent to collect, use and disclose their personal information, except in limited circumstances. The four employees initially complained to the Privacy Commissioner’s office claiming, among other things, that Telus was forcing them to consent to the collection of biometric information contrary to PIPEDA. When that part of the complaint was unsuccessful, the employees applied to the Federal Court for relief. In its decision, the court took into consideration:

ONE. The low degree of sensitivity associated with an individual’s voice and, consequently his or her voice print, as personal information.

TWO. The security measures implemented by Telus to protect the voice print information.

THREE. The bona fide business interests of Telus to protect customer information.

FOUR. The effectiveness of the use of voice prints to meet those objectives.

FIVE. The reasonableness of the collection of voice prints against alternative methods of achieving the same levels of security at comparable cost and with comparable operational benefits.

SIX. The proportionality of the loss of privacy versus the costs and operational benefits in the light of the security that Telus provides.

The court concluded that the collection of the voice print information would be seen by a reasonable person to be appropriate in the circumstances. Turning to the issue of whether Telus had obtained proper consent to collect the biometric information from its employees, the court found that the collection of information fell within an exception to the consent requirement set out in section 7(1)(a) of PIPEDA which states that an organization may collect personal information without the knowledge or consent of the individual if: (a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way.

Somewhat surprisingly, the court held that the employees’ continued refusal to consent meant that Telus was unable to obtain consent in a timely way. There was no analysis with respect to why or how the collection of the voice print was clearly in the interests of the employees. The court found that, if the employees continued to withhold their consent to the collection of the voice print information, it was acceptable for Telus to institute disciplinary steps short of termination of employment.

The court was clearly troubled by the fact that the vast majority of Telus employees had already consented to the collection of the voice print information. Despite the plain wording of PIPEDA, the court was loathe to find that Parliament had intended that a small minority of employees should be able to paralyse action by the employer given its business interests in protecting customer information. This decision has been appealed and it will be interesting to see how the Federal Court of Appeal deals with these same issues.

IKO Industries and U.S.W.A, Loc. 8580

In IKO Industries Ltd. and U.S.W.A., Loc. 8580, a union grieved the planned implementation of finger recognition technology that tracked payroll and attendance information. IKO is a provincially-regulated employer in Ontario. Neither PIPEDA nor any other provincial statute applied to IKO’s attempt to collect fingerprint information from its employees. Nonetheless, the arbitral jurisprudence has long recognized a right to workplace privacy, although this right is not absolute.

In this decision, the arbitrator attempted to balance the business interests of the company against the privacy rights of its employees. The company wished to implement the technology for the purposes of improving the efficiency and accuracy of the time-keeping and payroll systems and to improve security. In evaluating the reasonableness of this purpose, the arbitrator noted that the old swipe card system was equally efficient and accurate. The distinction between the two systems was the "verification" feature of the biometric system, allowing only the appropriate employee to access the system. The evidence clearly proved that the biometric system can rid employers of problems such as "buddy punching" (where one employee punches in or out for another employee who is not at work). However, the arbitrator noted that the company failed to establish the existence of this or other similar problems in its workplace.

In the result, the invasion of privacy was found to be unjustified and the arbitrator held that the biometric technology was not essential to the articulated purposes. Although the court made it clear that this decision should not be read as a general prohibition against biometrics in the workplace, it does indicate that if employers provide insufficient evidence supporting the stated purpose for using the technology, the employees’ privacy interests are likely to prevail in a unionized environment, even when PIPEDA does not apply.

Canada Safeway Ltd. And United Food and Commercial Workers, Local 401

In Canada Safeway Ltd. and United Food and Commercial Workers, Local 401, the union filed a grievance alleging that a hand scanning system, implemented for the purposes of collecting payroll and attendance information, invaded the personal privacy of employees. In this case, the arbitrator held that while employees have a right to privacy in the workplace, this right is limited by considerable business interests and the principle of proportionality must be applied. The more intrusive the impact on employee privacy, the stronger the proposed business rationale must be to justify it. The arbitrator found that the hand scanner collected personal information, but it was only a low level of intrusion as the information was used for verification purposes only and could not be used to identify persons individually.

The employer’s purpose for implementing the technology was to improve its time-keeping and attendance systems. Specific and detailed evidence was presented that the former system of time-card punching was defective because it allowed employee abuse, including evidence of: (i) "buddy punching"; (ii) multiple time-card punching that obscures late entries, and (iii) the use of tape to purposefully deceive the system. The arbitrator accepted the employer’s purposes for implementing the hand scan technology, and concluded that the employer met its onus of justifying the use of the technology, notwithstanding that such a system involves some limited intrusion in employee privacy.

Conclusion – state of the law

One of the primary objectives of PIPEDA is to protect personal information, and many of its provisions were no doubt prepared with that objective in mind. However, PIPEDA does not differentiate between consumer and employee personal information in the federally-regulated sphere. Telus demonstrates the difficulty that courts have in applying the strict terms of PIPEDA to the employment relationship. In the end, it would appear that the Trial Division decision weakens the consent requirement under PIPEDA and provides a broad interpretation of the exception under s. 7(1)(a). Although the court’s findings certainly have merit in the context of an employment relationship, they might very well be problematic if applied to consumer personal information. It remains to be seen how the Federal Court of Appeal will deal with these issues.

Even where an employer has a legitimate business purpose to implement biometric technology in the workplace, it would be prudent to collect evidence in support of that purpose, and to share information about the biometric technology with employees before implementation. Explaining how information will be secured, and the specific and limited uses of that information, may make employees more likely to accept the new technology without complaint.

In the end, the current state of the law in Canada appears to accept biometric technology in the workplace, so long as it is implemented for a clear business purpose and its necessity is supported by objective evidence.

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

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