Supreme Court of Canada comments on reasonable expectation of privacy in the workplace

Last week, the Supreme Court of Canada issued its decision in York Region District School Board, which confirmed that the Canadian Charter of Rights and Freedoms applies to Ontario public school boards.¹ In particular, the court recognized that Ontario public school teachers’ privacy rights in the workplace are protected by section 8 of the Charter, which guarantees the right to be secure against unreasonable search and seizure. 

Although this case is largely about the application of the Charter and administrative law principles relating to the standard of review, it presents an opportunity to highlight certain workplace privacy issues that ought to be top of mind for both public and private sector employers.

Background

The York Region case involved the private log of two teachers’ workplace complaints, which was stored in a password-protected e-mail account “in the cloud.” The school’s principal discovered the log when he came across the laptop after school hours and touched the mousepad to activate the screen. The principal read the log and copied its entire contents – roughly 100 entries – by taking photos of the computer screen with his cell phone. He then sent the copy of the log to the school board, which subsequently disciplined the teachers. The teachers’ union grieved the discipline and sought damages for the breach of the teachers’ privacy rights. 

An arbitrator dismissed the grievance, finding there was no breach of the teachers’ reasonable expectation of privacy. This decision was upheld by Ontario’s Divisional Court. Ontario’s Court of Appeal allowed an appeal and quashed the arbitrator’s decision. The Court of Appeal held that section 8 Charter rights apply, and the teachers’ privacy rights were violated. This decision was appealed to the Supreme Court of Canada.

The Supreme Court’s decision

The Supreme Court dismissed the appeal. It held that the Charter applies to public school boards in Ontario. A majority of the court held that the arbitrator had erred in failing to apply the Charter to her analysis of the workplace privacy issues. That was sufficient to dispose of the appeal, and the court did not wade into whether the teachers’ privacy rights were actually violated in this case. 

However, the majority provided general commentary on the application of the Charter to workplace privacy issues, highlighting that the analysis of an employee’s reasonable expectation of privacy in the workplace is highly contextual and will not necessarily follow a criminal law framework.

In particular, the majority emphasized that “the employer’s operational realities, policies and procedures” can affect whether – and to what degree – an employee has a reasonable expectation of privacy at work.

The majority referred to the court’s earlier decision in R v Cole, 2012 SCC 53, as an example of how the employment context can shape the privacy analysis. In Cole, the court noted that a policy stating the employer owned any data stored on employer-owned computers would tend to diminish an employee’s reasonable expectation of privacy for any personal information stored on a work computer. In contrast, an employee would have a greater expectation of privacy where the employer permitted employees to use their work computers for personal purposes.

The majority of the court in York Region also noted that the existing body of arbitral jurisprudence on workplace privacy remains relevant, particularly when balancing the privacy interests of the employee against the employer’s interests, including management rights under an applicable collective agreement.

Although the Supreme Court’s commentary on workplace privacy issues in this case arose out of the Charter context, such commentary tends to influence how arbitrators and judges analyze workplace privacy issues generally, even where the Charter does not apply. 

Key takeaways

While the law around privacy in the workplace continues to evolve, the Supreme Court’s comments in York Region highlight the following considerations for employers.

Employee privacy in the workplace is not absolute. Privacy rights are malleable and the assessment of an employee’s reasonable expectation of privacy “takes its colour from context.” An employer’s policies, training and monitoring activities can shape the parameters of an employee’s reasonable expectation of privacy, particularly for employees’ electronic communications. 

Workplace privacy engages a balancing of interests. The nature of the employer’s operations may be weighed against an employee’s privacy interests. Certain operations may justify – and even require – employers to intrude into electronic spaces that could arguably be considered “private” from an employee’s perspective. For example, employers whose operations require them to safeguard third-party information may take the position that this obligation justifies a diminished expectation of privacy for employees. Similarly, an employer’s statutory obligations to ensure a workplace free from harassment and discrimination may influence an employer’s stance on electronic communications, particularly in the context of online bullying or harassment. 

Employers can – and should – take steps to influence the scope of privacy expectations. Employers should review their operational needs and ensure their privacy-related policies, training initiatives and monitoring activities reflect those needs and are clearly communicated to employees. Employers should also consider any contractual (e.g., collective agreement) or statutory obligations that may impact privacy in the particular workplace.