HR leaders are urged to update their policies on digital technology
The Court of Appeal for Ontario sided with a pair of employees who cried foul on their privacy rights after their boss performed a search and seizure in the workplace. The case stems from a pair of teachers who received written reprimands after maintaining a personal, password-protected online log on their colleagues amid concerns of preferential treatment.
This log was later discovered by the school's principal, who opened a classroom laptop used by one of the teachers and found the online log. The principal read through the document and took screenshots of the entire thing using his phone - taking about 100 entries in total. The classroom laptops used by the two teachers were later confiscated by the principal as per the instruction of the District School Board Superintendent, but the Board itself found nothing from the confiscated computers.
The pair of teachers later received letters of discipline from the Board for "failing to conduct themselves in accordance with the Ontario College of Teachers' Standards of Practice." They also received written reprimands on their files for three years. According to the Board, the teachers used technology from the Board to access and maintain a log during Board time and made about 100 entries about the principal and another teacher. The teachers, represented by the Elementary Teachers Federation of Ontario, grieved the discipline and claimed there was a breach of privacy rights involved in the case.
Arbitrator, Divisional Court decisions
The arbitrator for the case sided with the Board and said the laptop computers in question were not the teachers' exclusive possession and use. The arbitrator also found that the teachers had a "diminished expectation of privacy concerning information that was accessible on the laptop computers."
According to the arbitrator, their expectation of privacy was diminished because the online log was left open on the Board-provided classroom laptop which could be accessed by any teacher or principal.
The Divisional Court upheld the findings of the arbitrator against the employees, saying that their reasonable expectation of privacy had not been breached by the employer's actions.
"The court concluded that the issue was not rendered moot by the removal of the discipline from the grievers' records and there remained a live controversy concerning the grievers' rights that required resolution.
Read more: Privacy claims in the workplace
Court of Appeal overturns
These decisions by the arbitrator and the Divisional Court were reversed by the Court of Appeal, who sided with the two teachers in the case. According to the court, the employees were covered under the Section 8 of the Charter of Rights and Freedoms from unreasonable search and seizure carried out by employers.
It said the Divisional Court erred in concluding that the teachers did not have section 8 rights in a workplace environment. The appellate court further stressed that the employees had reasonable expectation of privacy given that they took steps to protect their communication, even if they inadvertently left the log open on the Board's computer.
"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," the decision read.
The court also pointed out that the principal "failed to respect the grievers' reasonable expectation of privacy," citing that he had no legitimate purpose in reading and taking screenshots of the log. "What he had discovered was the private conversations of the grievers. It was a record of thoughts he was not entitled to know."
Finding it by happenstance doesn't make the search reasonable either, according to the court, as the employees' private thoughts were " not to be mined by the school principal to address his employment relations concerns, no matter how innocently the principal may have come upon the log or how pressing his concerns were."
Takeaway for employers
Natalie Garvin, Associate from Filion Wakely Thorup Angeletti LLP, said the Court of Appeal's decision "reinforces an employee's right to privacy in the workplace."
"This case is particularly interesting as the Grievers were found to have an expectation of privacy in relation to communications made using technology owned by their employer and that was accessible to others," she said.
According to Garvin, the following should be the key takeaway for employers in the case:
- They should develop and enforce strong policies that address the use of, and expectations surrounding, employer-owned technology
- They should proceed with caution in investigating information discovered in happenstance and that has the potential to include personal information, including thoughts and opinions
- They should conduct searches of employer-issued devices when there is a reasonable basis for doing so
