Employee Privacy Rights: New Developments in the Law

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George Leibbrandt speaks about Employee Privacy Rights and new developments in privacy laws.

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Employee Privacy Rights: New Developments in the Law

  1. 1. Employee Privacy Rights: New Developments in the Law George Leibbrandt, Partner george@stlawyers.caAgenda  Overview of Workplace Privacy Legislation  R. v. Cole: A Right to Privacy?  Jones v. Tsige: A Right to Privacy!  Questions
  2. 2. Overview of Workplace Privacy Legislation in OntarioPrivacy Legislation regulating Ontario Public Sector • Personal Information Protection and Electronic Documents Act (PIPEDA) • Freedom of Information and Protection of Privacy Act (FIPPA) • Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) • Personal Health Information Protection Act (PHIPA)
  3. 3. Overview of Workplace Privacy Legislation in OntarioPrivacy Legislation regulating Ontario Private Sector• Personal Health Information Protection Act (PHIPA)• Personal Information Protection and Electronic Documents Act (PIPEDA)*
  4. 4. Overview of Workplace Privacy Legislation in Ontario*Limited application of PIPEDA to Ontario Private Sector• Applies to provincially-regulated private sector businesses, but only with respect to commercial activity• Does not apply to employer-employee relationships of provincially-regulated businesses
  5. 5. Overview of Workplace Privacy Legislation in OntarioPrivacy Legislation regulating Ontario Private Sector• Other than PHIPA, regulating collection of personal health information and limited application of PIPEDA to commercial activity, there is a “statutory gap” in Ontario• Consequences of “statutory gap” : no cause of action in private sector for invasion of privacy
  6. 6. R. v. Cole: A Right to Privacy?Facts•Not private sector: Cole a teacher employed by schoolboard•Cole had been provided with use of a school board-owned laptop computer•Technician discovered nude photographs of student
  7. 7. R. v. Cole: A Right to Privacy?Facts•Technician copied photographs to disc as directed byschool board•Laptop seized by school board and turned over to police•Police proceeded to search entire hard drive of laptopcomputer•No search warrant obtained
  8. 8. R. v. Cole: A Right to Privacy?The DecisionCole had a reasonable expectation of privacy in contentsof laptop computer because: • Teacher had exclusive use of laptop • Had permission to use for personal use, inside and outside of school • No evidence school board actively monitored use • School board did not have clear and unambiguous policy to search or monitor teacher use
  9. 9. R. v. Cole: A Right to Privacy?Implications of R. v. Cole•Employees may have reasonable expectation of privacyin information on employer-issued electronic devices•Unregulated personal use of such devices supportsexpectation of privacy•Employer may limit expectation of privacy throughconsistent enforcement of clear, unambiguous policyrespecting use of electronic devices
  10. 10. R. v. Cole: A Right to Privacy?Why private sector may have ignored R. v. Cole…at first•Cole an employee of a public sector employer privacy inpublic sector heavily regulated (PIPEDA, FIPPA, MFIPPA,PHIPPA)•Case was a criminal proceeding where Cole’s Charterright to be secure against unreasonable search andseizure at issue•Charter doesn’t apply to private sector institutions
  11. 11. Jones. v. Tsige: A Right to Privacy!Facts•Jones and Tsige both employees of private sectoremployer (Bank of Montreal)•Jones and Tsige not co-workers•Tsige in a relationship with Jones’ ex-husband•Tsige wanted to know if ex-husband making supportpayments to Jones
  12. 12. Jones. v. Tsige: A Right to Privacy!Facts•Tsige used her position as a BMO employee to accesspersonal accounts of Jones 174 times over a 4 year period•Jones discovered and Tsige was caught•Tsige suspended without pay for one week and deniedbonus by BMO, but Jones sued anyway
  13. 13. Jones. v. Tsige: A Right to Privacy!Ontario Superior Court of Justice•Jones’ action dismissed by the Ontario Superior Court ofJustice•Ontario law does not recognize cause of action forinvasion of privacy•New laws should be made by legislators, not courts
  14. 14. Jones. v. Tsige: A Right to Privacy!Court of Appeal for Ontario•Decision overturned, new cause of action for invasion ofprivacy created•Called an action for “intrusion upon seclusion”•Decision has not been appealed to Supreme Court ofCanada
  15. 15. Jones. v. Tsige: A Right to Privacy!Rationale for New Right to Privacy•Privacy has long been recognized as an importantunderlying and animating value of various traditionalcauses of action to protect personal and territorialprivacy.•Charter jurisprudence recognizes privacy as afundamental value in our law
  16. 16. Jones. v. Tsige: A Right to Privacy!Rationale for New Right to Privacy•In modern times, the pace of technological change hasaccelerated exponentially and there is a pressing need topreserve privacy which is being threatened by science andtechnology to the point of surrender
  17. 17. Jones. v. Tsige: A Right to Privacy!Legal test to prove “intrusion upon seclusion”?•Defendant’s conduct must be intentional or reckless•Defendant must have invaded, without lawfuljustification, plaintiff’s private affairs or concerns•A reasonable person would regard the invasion as highlyoffensive causing distress, humiliation or anguish
  18. 18. Jones. v. Tsige: A Right to Privacy!What Employers Need to Know•Assume that employees have a reasonable expectationto some degree of privacy in the workplace•Breach of privacy may now lead to damages•Court of Appeal recommended damages limit of $20,000•Accessing employee information for legitimate purposesis not a breach of privacy
  19. 19. Jones. v. Tsige: A Right to Privacy!Best Practices•Ensure you have policies relating to use of employerelectronic devices, databases, hardware, software, etc.•Ensure policies communicated to employees and appliedconsistently across workplace•Perform random audits to monitor usage
  20. 20. Jones. v. Tsige: A Right to Privacy!Best Practices•Issue warnings and/or discipline where policies breachedor privacy infringed•Keep records of actions taken to demonstrate employerdue diligence
  21. 21. Employee Privacy Rights:New Developments in the Law Questions? George Leibbrandt, Partner george@stlawyers.ca

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