Supreme Court of Canada to consider employees’ right to privacy

The top court will render its judgment in R. v. Cole, but remember it relates to a criminal prosecution and not an employment dispute

Stuart Rudner

By Stuart Rudner

On May 15, the Supreme Court of Canada heard oral arguments in R. v. Cole, a case that has prompted debate and confusion regarding the rights of employers to search their own equipment.

The case involved a high school teacher who was charged with possession of child pornography. The school had provided Richard Cole with a laptop to use in teaching communication technology and in supervising a laptop program for students.

During routine maintenance, one of the school’s computer technicians found nude images of a Grade 10 student on the hard drive. The principal directed the technician to copy the images and the Internet files from Cole’s web surfing history. The copies and the laptop were turned over to the police, who searched them without a warrant.

Traditionally, jurisprudence has not particularly favoured employee privacy rights, as the trend has been to deny employees a reasonable expectation of privacy on the contents of employer-issued computers. Camosun College v. Canadian Union of Public Employees, Local 2081 (Metcalfe grievance) concerned an employee who was dismissed for having used the company computer network to send an email message containing serious allegations about the integrity and competence of his co-workers. The arbitrator maintained email messages sent on an employer’s email system should not be granted the same level of privacy protection as an employee’s private letters or communications on his or her personal electronic devices.

In Cole, however, the Court of Appeal held the employee had a reasonable expectation of privacy for the contents on the school-issued laptop. In reaching this decision, the Court of Appeal considered the leading Canadian decision on the issue of reasonable expectation of privacy, R. v. Edwards. The Supreme Court of Canada ruled the reasonable expectation of privacy must be based on a totality of the circumstances, which according to Justice Cory included:

•presence at the time of the search

•possession or control of the property or place searched

•ownership of the property or place

•historical use of the property or item

•the ability to regulate access

•the existence of a subjective expectation of privacy

•the objective reasonableness of the expectation.

Based on the totality of the circumstances in Cole, the Court of Appeal ruled in favour of Cole because:

•he had exclusive possession of the laptop and explicit permission to use it for personal matters

•he and the other teachers had permission to take the laptop home on evenings, weekends and summer vacations

•he and the other teachers consistently used these laptops for personal use and employed passwords to exclude others from using the laptops

•most importantly, because “there was no clear and unambig­uous policy to monitor, search or police the teachers’ use of their laptops.” Although the school board had a computer use policy, this policy did not address the monitoring and policing aspects that were the focus of the decision.

The initial accessing of the hard drive by the technician did not violate Cole’s rights, as there was a valid purpose and an implied right to do so. However, the court found the warrantless police search violated Cole’s charter rights and excluded evidence obtained to that effect. Justice Karakatsanis stated: “Although the laptop and some of the personal information was in the hands of a third party — the employer — as a result of the technician’s access, the appellant did not abandon his privacy interest in the personal information on the computer.”

As I have said before, the context of this decision is significant — a criminal prosecution, as opposed to a civil suit for wrongful dismissal.

It was not the employer seeking to rely on the material found to justify discipline or dismissal, but the Crown introducing the material as evidence of a breach of the Criminal Code. In many civil cases and arbitral decisions, employers have been able to defeat the argument employees had a privacy interest in the content of the employer-owned equipment. That said, in most of those cases, the employer could point to a relatively clear policy and warning to the employees they could not expect any privacy for materials accessed or stored on company equipment.

While some have suggested Cole marks a shift toward greater recognition of employee privacy protection in relation to personal files located on employer-issued computers, that may not be an accurate assessment of the law.

Cole is a useful reminder to employers the best way to protect their rights is to employ clear policies and communicate their rights to their employees. Explicitly advising employees the organization has the right to access all information stored on the equipment will go a long way toward negating the employees’ reasonable expectations of privacy.

It will be interesting to see what the Supreme Court has to say on this issue, but their decision may not have a significant impact on the litigation of employment disputes.

For more information see:

R. v. Cole, 2011 ONCA 218, 2011 CarswellOnt 1766, 90 C.C.E.L. (3d) 1 (Ont. C.A.)

•Camosun College v. Canadian Union of Public Employees, Local 2081 (Metcalfe grievance), [1999] B.C.C.A.A.A. 490

R. v. Edwards, [1996] S.C.J. No. 128.

Stuart Rudner is a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or You can also follow him on Twitter @CanadianHRLaw and join his Canadian Employment Law Group on LinkedIn.

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