Ont. C.A. Clarifies Scope of Workplace Privacy Expectations

A recent decision of the Ontario Court of Appeal provides a nuanced analysis of just how far an employer can go in reviewing employee data on its IT equipment, bearing in mind the limited expectation of privacy arising from the decision in R. v. Cole.

In Elementary Teachers Federation of Ontario v. York Region District School Board, the issue involved discipline that had been imposed on two second-grade teachers. The teachers had been keeping a log of the behaviour and performance of a colleague. When some co-workers of the grievors became aware that the two teachers (represented by ETFO) were monitoring and logging this information, they reported it to the principal of the school. With approval from a Superintendent and Human Resources, the Principal directed IT to conduct a search of the employees' activities using the employer's laptop computers, but it did not uncover the alleged "log" or any other inappropriate activity. A short time later, the Principal visited the classroom of one of the grievors after the end of the school day. When he wiggled the mouse of the classroom laptop, a file opened up, which appeared to be the log in question. The Principal used his phone to take photos of all entries in the log, and he advised the Superintendent of what he had found. The Superintendent directed the Principal to confiscate the teachers' laptops and he sent copies of the screenshots to the Board. Nothing further was found on the computers, but the teachers were issued written reprimands, which were to remain on their records for 3 years.

Following an arbitration hearing of their grievances, a labour arbitrator ruled that, although the grievors had a limited expectation of privacy in the content of the laptops, especially since the log in question was located in one of the teachers' Google Docs account "in the cloud", that expectation was "diminished" because the teacher had left the document open on a school computer. The Arbitrator found that the Principal had a right to inspect a school laptop, that the search was limited and targeted, and that the Principal had discovered the log because it was "in plain view". The fact that the Principal had scrolled through the document and taken photos did not offend the grievors' privacy, as the information it contained was not close to their "biographical core" (i.e., not deeply personal), but involved observations of a third-party. Moreover, the Arbitrator found that the Principal's search of the laptop was conducted in a reasonable manner, such that there was no breach of privacy. The Union sought judicial review of the Arbitrator's decision, but the Divisional Court concluded that the decision was reasonable and should not be interfered with.

At the Court of Appeal, the Union sought to overturn the lower decisions on the basis that the Arbitrator had misapplied the law arising out of the Cole decision, a point on which the Arbitrator had to be "correct" as it involved an application of section 8 of the Canadian Charter of Rights and Freedoms. The Court of Appeal considered the test for whether there was a reasonable expectation of privacy in all of the circumstances:

1. What was the subject matter of the search?

2. Did the claimant have a direct interest in the subject matter?

3. Did the claimant have a subjective expectation of privacy in the subject matter?

4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?

Considering that the grievors were conducting a personal conversation through their exchange on Google Docs, which was located "in the cloud", and that they had a subjective expectation of privacy in that conversation, they could reasonably expect that the information would be kept private. The Court found that the failure to close the Google document was "a careless oversight at best, given that the computer would otherwise time and shut itself down in a relatively short period of time". The log was password protected and not shared with others. In addition, the Court concluded that the grievors' expectation of privacy was objectively reasonable, as well. The forum of the conversation was secure, and there was a substantial risk that their personal information would be exposed if others accessed their exchange. The Court opined that the fact that the information was not near to the grievors' "biographical core" was not determinative of whether it ought to be protected, finding that the Arbitrator mistakenly treated this factor as determinative. The Court stated:

... Whether the grievors’ log contained intimate details about them is not relevant to whether the grievors’ private communications should be protected. The grievors’ log was, in essence, their diary. They were entitled to record their private thoughts – including complaints about co-workers and supervisors – for their own purposes and to expect that those thoughts would remain private.

Furthermore, the Court found that the Principal's perusal and screenshotting the log entries exceeded what was reasonable in the circumstances. The Principal did have authority to monitor the use of school resources, like a laptop, but in the context of staff, the Court expressed some reservations about the extent to which this authority needed or ought to be exercised. As the Court observed (at para. 64):

School authorities such as principals are not responsible for the welfare of teachers and staff in the same way as students, and the need to act quickly concerning teachers and staff is less likely to arise. In my view, concerns arising out of employment relationships in the workplace are unlikely to justify a similarly broad and flexible search and seizure authority. Branding workplace relationships “toxic” does not alter this.

Even if the Principal located the log by "happenstance", this did not excuse him reading through it or taking screenshots. The fact that it contained the grievors' observations of a colleague did not render it any less personal, nor did it justify further review of the log's contents. Doing so invaded their privacy and violated their rights against unreasonable search and seizure under s. 8 of the Charter.

For public sector employers, the decision is somewhat concerning. The fact that an employee uses employer resources to maintain a record of a co-worker's activities that may constitute harassment of that colleague (particularly where they let others in the workplace know about their record-keeping) should constitute a pressing reason for management to investigate. Leaving such a document open on the employer's computer (even if it was only for a moment and the document itself was not physically located on the drive of that computer) should open the door to the employer making some form of record of its existence. The Court's decision seems to prioritize privacy over protecting employees from workplace harassment, an obligation that the employer ignores at its peril.

Nonetheless, the decision suggests that employers may need to take additional precautions if they want to be able to address this type of behaviour. Acceptable use policies should be reviewed and revised to ensure that they cover not only information stored on an employer computer but created, managed, accessed or stored using those resources. Moreover, employees should be reminded that personal use of employer computers during working times is not permitted, and that any use of the employer's IT resources for activities that violate the workplace harassment policy are likely forbidden. By closing off opportunities for this type of conduct, the employer may be able to change the narrative so that the focus is more on improper behaviour and less about privacy.

Need assistance with your workplace policies or how to investigate employee misconduct without violating privacy? Contact [email protected] for expert advice.

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Operating as Ceaser Work Counsel since early 2014, Lance Ceaser is a 19+ year management-side labour and employment lawyer operating from London, Ontario, where he resides with his lovely spouse, a dog and 2 cats. Lance has provided timely, cost-effective advice to organizations of all sizes in virtually every sector of industry and the public sector throughout his career.