Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J U N E / J U LY 2 0 1 9 43 K eyboard stroke and internet monitoring, video surveillance and examining social media postings. These are just a few ways in which employers might legally monitor employees and job candidates, all of which are used. At present, employee monitoring is permissible in Canada if it is con- ducted in conformity with Canadian privacy statutes. But as privacy and data protec- tion concerns gain increasing prominence in the workplace, are employees' data and privacy rights being adequately protected, and are employers aware of employee rights and their own obligations? "We have the ability to collect, use and store more information than we ever did before," says Suzanne Kennedy, an associate counsel in Harris & Company LLP in Vancouver, who practises in access and privacy law. "Technology allows us to store vast amounts of information," she says, but "that also creates risk. In the event of a privacy breach, if you've hung on to all your email for the past 20 years, you're so much more exposed." Although technology allows us to do much more than we could in the past, "we have to be conscious of the risks" inherent in it, she says. "Workplace privacy is a complicated issue," as there are two sets of legitimate rights and interests at play, says Ashley Brown, a partner in Filion Wakely Thorup Angeletti LLP in Toronto, who practises labour and employ- ment law. One the one hand, employees have a right to know how their information is being used and collected, and on the other, employers have the right to gain necessary information to properly manage their business operations. But those rights don't have to conflict. Technology such as video surveillance, which is often used in workplaces across Canada, can be mutually beneficial for employees and employ- ers to safeguard work premises and employee safety, Brown says. And GPS monitoring on work vehicles can provide helpful information in locat- ing employees in emergencies. "There's not always a conflict," she says. "It can be a mutual benefit." Where surveillance is covert in areas of the workplace where employees would have a reason- able expectation of privacy, such as washrooms or changerooms, they would have recourse under provincial legislation. Although Ontario has no privacy legislation for provincially regulated, pri- vate sector employers, the creation of a new tort, "intrusion upon seclusion," from an Ontario Court of Appeal decision in Jones v. Tsige in Privacy and data protection concerns are gaining increasing prominence in the workplace By Elizabeth Raymer COLLECTING EMPLOYEE DATA W O R K P L A C E L A W L E G A L R E P O R T ISABELLE CARDINAL

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