Law Times

Law Times • January 21, 2013 Page 11 FOCUS Cole prompts vigorous debate on privacy at work Employers may now want to ban personal use of computers, lawyer suggests BY Julius Melnitzer For Law Times T he Supreme Court of Canada's recent decision in R. v. Cole suggests employees do retain some reasonable expectation of privacy in personal data stored on an employer-supplied laptop even in the face of best practices and employer ownership of the computer. "Perhaps the most important thing that arises from the decision is the court's skepticism that employers who allow any degree of personal use can totally displace privacy rights," says Patrick Flaherty of Torys LLP's Toronto office. The upshot is that companies that have relied on employees' consent to justify their scrutiny of employees' work computers will likely have to reconsider their position. "The days when companies can base their access on simple 'no expectation of privacy' disclaimers from employees are over," says John Russo, vice president, legal counsel, and chief privacy officer at Equifax Inc. "Now that the Supreme Court has spoken on the matter, we're reviewing our privacy policies here in Canada to ensure that they establish a clear and broad right to access work computers for legitimate business reasons." The solution, Flaherty suggests, may lie in prohibiting the personal use of workplace computers. "To my mind, the decision suggests that employers who want to ensure complete freedom to monitor ought to ban personal use and consistently enforce the ban," he says. But a complete ban may not be realistic, Blaikie LLP's web site, especially in workplace lawyers Christina Hall settings where employand Andrew Carriers expect employees to cato argue the decibe available around the sion doesn't make new clock and give them the law regarding privacy hardware and tools to do rights in the workplace so. That being said, Cole context. In their view, doesn't prohibit employ"the privacy rights recers from doing their best ognized in the decision to circumscribe expecapply only to the rights tations of privacy. of employees vis-a-vis "The Supreme Court the state and the right found that clear, docuof an individual to be mented policies and free from unreasonable compliance programs search and seizure." for the use of workTo be sure, Cole place computers served Cole challenges the notion that 'employers to diminish but not who allow any degree of personal use can dealt primarily with eliminate an employee's totally displace privacy rights,' says Patrick police officers' right to search and seize perreasonable expectation Flaherty. sonal data without a of privacy regarding personal content on employer-supplied warrant. On a strict legal analysis, then, computers," says David Elder of Stike- the court's views regarding privacy in the workplace context may not have been man Elliott LLP's Ottawa office. "In other words, such policies help es- necessary to the decision and therefore of tablish the knowledge and consent of em- limited precedential value. "The court spoke in the context of ployees to the collection, use, and disclocriminal law, so we don't want to be looksure of their personal information." Indeed, as the court saw it, what's rea- ing for messages to employers where they sonable depends on all of the circum- don't exist," says Frank Cesario of Hicks stances in an individual case, including Morley Hamilton Stewart Storie LLP's Toronto office. the employer's policies. "From a day-to-day operational per"The decision doesn't really shift the ground in terms of best practices because spective, however, the ruling provides an employer will never do itself a disser- considerable insight on how the court vice in terms of limiting an employee's views employees' privacy rights." As it turns out, the Ontario Court of expectation of privacy by having a consistent and well-enunciated policy," says Fla- Appeal has also had an opportunity to examine the concept of reasonable exherty's colleague Sarah Whitmore. Still, many lawyers are wary of the ex- pectations of privacy in R. v. Ward in the tent to which Cole applies to privacy rights context of a criminal case that, like Cole, involved allegations of child pornograin the workplace context. In an article that appears on Heenan phy. Ward, however, didn't arise in the workplace context. Rather, it dealt with an Internet service provider's disclosure of the identity of an individual who had accessed a specific site on three separate occasions. The police requested and received the information from Bell Canada without obtaining a warrant. "The court agreed that the accused did not have a reasonable expectation of privacy when Bell disclosed his identity to the police," says Kris Klein, an Ottawabased privacy lawyer. "But the court noted that this conclusion was limited to the facts of the case and was not intended to suggest that customers did not in certain circumstances have a reasonable expectation of privacy in information available to an ISP." Klein says the court based its reasoning on the fact that the police had focused on a particular individual who had accessed a particular site on three specific occasions. The narrow scope of the inquiry meant the information could reveal nothing else about the individual's activities on the Internet. "If, for example, the ISP disclosed more detailed information or made the disclosure in relation to an investigation of an offence in which the service was not directly implicated, the reasonable expectation of privacy analysis might yield a different result," the court stated. "Similarly, if there was evidence that the police, armed with the subscriber's name and address, could actually form a detailed picture of the subscriber's Internet usage, a court might well find that the subscriber had a reasonable expectation of privacy. Those cases will be considered using the totality of the circumstances analysis when and if they arise." LT Settlement breach costs applicant $1,000 BY Julius Melnitzer For Law Times T he Human Rights Tribunal of Ontario has reduced an award after discovering the applicant had breached a confidentiality clause included in the minutes of settlement. "The decision is very significant because the tribunal has never done anything like this previously," says Kelly O'Ferrall, an associate in the employment, labour, and pension group at Stikeman Elliott LLP's Toronto office. Tremblay v. 1168531 Ontario Inc. arose after Trish-Ann Tremblay brought a complaint against her former employer and manager. Neither Tremblay nor the respondents had counsel representing them. The parties reached an agreement that formed the basis of the minutes of settlement, the details of which weren't available. The minutes contained a confidentiality clause that prohibited the parties from disclosing the financial terms of the settlement with anyone other than immediate family or professional advisers. However, both during and following the mediation session, Tremblay posted several references to the proceedings on Facebook, including remarks that although she didn't achieve what she wanted, she "still walked away with some" and "my mother always said something is better than nothing." The employer took these statements as contraventions of the confidentiality clause, refused to make any payments pursuant to the settlement, and sought to have the tribunal declare it null and void. Tremblay argued it was the employer that had breached the settlement by not paying her. She also submitted that she hadn't breached the confidentiality clause because Facebook was private and the evidence didn't indicate that her remarks referred to this particular settlement. Tremblay also filed an application for contravention of settlement claiming $5,000 for pain and suffering as a result of not having received her settlement promptly. But the tribunal rejected Tremblay's arguments, ruling that Facebook posts are public and dismissing the claim that the references may have been to another settlement. In considering the remedy, the tribunal noted, both the extent and content of the breach and the harm resulting from it were relevant considerations. Here, Tremblay hadn't disclosed the actual terms of the settlement, only that she had received one. Still, the impact of the breach may have been significant as the employer's business was in a small community. Absent relevant precedent from the tribunal itself, the adjudicator, Ian Mackenzie, relied on decisions from the Grievance Settlement Board and a labour arbitration awarding $1,000 for breach of confidentiality in similar circumstances. Perhaps surprisingly, however, Mackenzie ruled the employer was liable for prejudgment interest equal to 1.3 per cent of the amount owing. "While employers now have some authority for challenging employees who breach confidentiality clauses, this case demonstrates that the appropriate recourse is not to unilaterally withhold all of the settlement monies as a breach does not necessarily invalidate the settlement," says O'Ferrall. "The appropriate course is to www.lawtimesnews.com 'What the tribunal is trying to do is govern the process in the absence of counsel by ensuring that an employer can feel safe entering into what it believes is a private settlement,' says Jeff Goodman. file an application for contravention of settlement and let the tribunal determine the appropriate remedy." Jeff Goodman of Hicks Morley Hamilton Stewart Storie LLP's Toronto office says Tremblay is particularly telling because applicants don't have counsel in about 70 per cent of the cases before the tribunal. "The real message is not aimed at counsel, who understand the significance of confidentiality, but to the community at large about the binding nature of confidentiality terms," he says. "What the tribunal is trying to do is govern the process in the absence of counsel by ensuring that an employer can feel safe entering into what it believes is a private settlement." Because the terms of the Tremblay settlement aren't available, it's unclear whether the $1,000 reduction was a significant portion of the total amount. "What we do know is that the nature of the breach, which took place even as the matter was being resolved, exacerbated it," says Goodman. "The applicant also lied to the adjudicator by suggesting that the comments were related to something other than the mediated settlement." Even so, Goodman agrees that the $1,000 award for breach of confidentiality might be relatively insignificant to an employer. "This is not so much about what the breach saved the employer but about what it cost the employee," he says. "If the employer in this case had hired counsel on the breach proceedings, the legal costs would have dwarfed the reduction." LT

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