ANALYSIS: Canada’s Ontario Court Of Appeal’s Ruling Muddies The Waters As To Employee Privacy Rights Regarding Use Of Workplace Computers
By Maria Giagilitsis and Brian P. Smeenk, of Fasken Martineau DuMoulin LLP, Toronto.
In a decision released March 22, 2011, the Ontario Court of Appeal issued a surprising ruling affecting privacy rights in the workplace (see WDPR, May 2011, page 36). The case, R. v. Cole, 2011 ONCA 218, muddied the waters about the impact of an employee’s “reasonable expectation of privacy” with respect to computer use at work.
The facts in Cole involve an employee (a teacher) facing criminal charges for possession of child pornography.
In Cole, the Court decided that a Sudbury teacher had a “reasonable expectation of privacy” regarding the contents of his workplace computer. This part of the finding was not altogether unusual, as many courts and arbitrators have made similar findings in the past with respect to employees’ computer use in the workplace.
In Cole, however, this finding meant that the employee was protected against computer searches by the police, absent a search warrant. Unlike the police, the employer was given slightly more latitude, but not free rein.
Therefore, while this decision certainly muddies the waters on employee privacy rights as they relate to workplace computer use, the decision may not be as damaging as first appears for employers’ ability to control how their computer equipment is used.
Some Background on the Law
Until now, the general rule was that personal information stored by employees on workplace computers would be treated as the employer’s property, with full access by the employer. Pursuant to this understanding, employers have exercised the right to investigate suspected misuse of computers and also to take disciplinary action against employees who are in violation of workplace policies. Until the Court’s decision in Cole, it seemed relatively uncontroversial that, pursuant to their powers of investigation and discipline, employers could also hand over to the police material and/or equipment that might lead to criminal charges against employees.
This is where the decision in Cole becomes tricky to apply: The Court drew a bright line between an employer’s investigative and disciplinary powers, on the one hand, and police powers of search and seizure, on the other. Because the Court agreed that Cole had a reasonable expectation of privacy, prosecutors were unable to use many of the images that the police had obtained from the workplace computer at the teacher’s criminal trial.
The Court clearly stated that different considerations apply to employers. For these reasons, this decision raises new questions about what employers can do to ensure their equipment is not misused by employees.
The Basic Facts
A high school teacher in Sudbury was provided a laptop by his school. He used the laptop to teach communication technology. He was also responsible for supervising a laptop program for students.
The teacher had the authority to remotely access data stored on the students’ laptops. He did this regularly. When reviewing one student’s computer files, he discovered nude photos of another student. Rather than reporting the incident, the teacher copied the nude photos onto the hard drive of his (school-issued) laptop.
The school’s computer technician discovered the nude photos in a “hidden” folder on the teacher’s computer. He found them while doing a routine data scan. Upon identifying the girl from the photos as a student, the technician notified the principal. The principal instructed him to copy the images, along with the teacher’s internet surfing history, onto a disc. That surfing history included a large number of pornographic sites. The employer gave that, along with the nude photos, to the police. The police viewed both the disc and the laptop without a warrant…