Canadian Lawyer

LEGAL REPORT/LABOUR & EMPLOYMENT One aspect inside the workplace employers should be con- cerned about is computer audits and related investigations. "The computer system is such a critical source of business risk and source of evidence and information on how the business is oper- ating. So access to that is important," he says. An Ontario Court of Appeal decision in 2011 — R. v. Cole — dealt with an employee's expectation of privacy on a work com- puter and experts say Cole suggests good policy language is nec- essary to limit an employee's expectation of privacy with a device provided by an employer. In that decision, Richard Cole, a teacher who was responsible for monitoring the computer use of students, accessed a student e-mail account and downloaded nude photos of the student's girlfriend, saving them on his workplace computer. During a routine IT check, the photos were found and the school principal called the police. The teacher claimed unreasonable search of and seizure of his computer. "Did the employee have a reasonable ex- pectation of privacy with [a] workplace computer? The Court of Appeal said yes because the school allowed personal use of com- puters and allowed them to take them home," says Nieuwland. Given Cole and now Tsige, if you put the two together it's a smart thing for employers to look at those policies right now, says Michaluk. "[Computer-use policies] used to be very short docu- ments because nobody put a lot of weight into the employee's pri- vacy expectation. They would typically say that you don't have Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com 48 A PRIL 2012 www. CANADIAN Lawyermag.com all_CL_Mar_12.indd 1 12-03-13 2:27 PM an expectation of privacy, period." But, he notes, Cole suggests employers have to be more specific around wording related to access of employee work systems. Employers, he adds, should bulk up their computer-use poli- cies so there is no reasonable expectation of privacy whether the computer is used for work or personal use and subject to moni- toring without notice. While Michaluk sees computer monitoring as the most im- portant issue right now, there are also privacy considerations around bag checks to consider, such as at places of employment like warehouses, locker searches, desk searches, and the use of GPS on employee vehicles. "There are arbitration case laws that go way back but it's never been a civil litigation issue until now. We may see some litigation in a new form now," he says. He also thinks a serious issue for employers following Tsige will be investigations conducted outside the workplace such as the hir- ing of private investigators to look into the actions of employees suspected of insurance or other fraud. "You're likely to be vicari- ously liable for the actions of a private investigator because you've hired them to go out and investigate for you. It's going to be hard to divorce yourself from their actions. I do think claims will be in- evitable because if you terminate someone based on the strength of out-of-facility video surveillance why wouldn't that employee al- lege a wrongful dismissal and a breach of privacy?" says Michaluk. So how do you keep PIs on the right side of privacy rules? To start with: "Tell PIs not to video record through a living room window because there is a lot of Charter jurisprudence about the sanctity of the home when it comes to privacy. Videotaping activ- ity in the public eye should be fine," he says. Determining the tactics PIs use prior to hiring them may also be a good idea, offers Nieuwland. "If they engage in aggressive surveillance, they are your agents and you will be liable for their conduct or misconduct." You must also have good cause to suspect the employee of wrongdoing. He cites a 1970 case that dealt with the use of a pri- vate investigator in British Columbia. In Davis v. MacArthur, the B.C. Court of Appeal concluded that retaining a PI did not vio- late B.C.'s Privacy Act because the PI was used for a legitimate purpose, was not motivated by malice, and acted with "circum- spection." To protect against accusations of invasions of privacy, employers are advised to retain PIs for objectively reasonable purposes (like a fraud investigation), and should ensure the PI re- tained is well-trained and professional since the employer could be liable for the PI's misconduct. "Weak suspicions could get you into trouble," says Nieuwland. The new tort addresses what has been a grey area of employ- ment law, says Catherine Beagan Flood, a partner with Blake Cassels & Graydon LLP in Toronto. "I think previously there had been a real gap in the law. The use of personal information for commercial purposes is protected by federal legislation, and in- vasion of privacy by the government or police is already governed by the Charter [and] privacy statutes, but in Ontario it wasn't clear. There wasn't any law preventing an individual from invad- ing another person's privacy for non-commercial reasons, so this new tort is primarily intended to fill in that gap."

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