Law Times

PAGE 12 Staff will claim privacy on work computers: lawyer FOCUS Continued from page 9 a new trial aſter finding the CD containing the pictures had been lawfully obtained. However, the appeal court upheld the exclu- sion of the laptop evidence aſter finding the teacher had a reason- able expectation of privacy in its contents. In its 6-1 majority decision, information contained on these computers, at least where person- al use is permitted or reasonably expected. of property is a relevant consid- eration but the Supreme Court found against excluding the evidence but re- inforced the privacy expecta- tion aſter finding a breach of the teacher' ably used for personal purposes — whether found in the work- place or the home — contain information that is meaningful, intimate, and touching on the user' "Computers that are reason- s s. 8 Charter rights. Fish. "Canadians may therefore reasonably expect privacy in the s biographical core," wrote tive. Workplace policies are also not determinative of a person' reasonable expectation of privacy." In tandem with the Ontario Court of Appeal's establishment Fish added that "ownership is not determina- s " of a privacy tort in Jones v. Tsige, Lloyd says Cole could open up a new avenue of claims for dis- gruntled employees claiming excessive surveillance by their employers. "There' an employer who does breach this expectation. It opens up new liabilities for employers and a whole bunch of uncertainty as to how far they can go in their own s a potential liability to issue, but it's certainly a grey area " ter of time before fired employees claim an expectation of privacy over information on a work com- puter that may have led to their dismissal. "That happens a lot. People Lloyd also says it's only a mat- right now that wasn't there a few years ago. use their work computers to send off-colour jokes and porn mate- rial. It'll be interesting to see how the courts deal with that." Both Lloyd and Rae predict 'How's an employer going to know how far they can go?' asks Christopher Lloyd. backyard. Trial judges could wa- ter down the concept in a civil case and it could become a non- some employers will react with a knee-jerk ban on all personal use of employer-owned devices. But they share a common skepticism of that idea. "It' that's enforceable or realistic in today's workplace," says Rae. s questionable whether "Personal use is so ingrained, Hicks Morley Hamilton Stewart Storie LLP, appeared before the Supreme Court on behalf of in- terveners the Canadian Associa- tion of Counsel to Employers. Although the workplace policies and practices aren't determinative of a person' court expectation of privacy, he was happy the court recognized that they could "diminish an individ- ual' found s to remember that s expectation." Michaluk says it' breach stemmed from the war- rantless search by police rather than the school board' s important the Charter and sees the Supreme Court de- cision as sympathetic to manage- ment rights over its own systems. "It' s action CITED BY THE SUPREME COURT OF CANADA CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. ORDER # 804218-62305 $3 2 volume looseleaf supplement book supplement per year Supplemen invoice separately 0-88804-218-3 Internet version available separately. Also available in Employment Spectrum. With methodically organized chapters covering the complete range of employment law, Canadian Employment Law provides the kind of detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: wrongful dismissal, fiduciary obligations, tort law and vicarious liability issues, remedies, constitutional issues, occupational health and safety, employment contracts, duty of good faith and fidelity and human rights. Includes a Table of Reasonable Notice — a chart, which groups together comparable types of positions so you can easily compare length of notice awards. Plus, all topics are illustrated with extensive case law and useful footnotes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.ca.c Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® Canadian Bar Review Michaluk. "It doesn't say in any way that employers can't do what they need to do with information on their own systems for their own legitimate purposes." Those legitimate purposes for s not a time to panic," says it would be pretty draconian, impossible to enforce, and could lead to pretty poor employee re- lations," says Lloyd. Dan Michaluk, a partner at November 12, 2012 • Law Times access to information could in- clude maintenance, repair, and prevention of misconduct. Mi- chaluk believes that list could also include meeting legal production requirements, managing produc- tivity, and improving business processes. He suggests employers get more specific in their work- place policies if they want to min- imize the expectation of privacy. "Employers need to articulate very clearly all the reasons they will and may access system infor- mation," says Michaluk. "You're on way more solid ground if you spell out exactly what your right is." LT Untitled-3 1 AVAILABLE ONLINE AND IN PRINT REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! With more than 179,000 page views and 31,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Untitled-1 1 www.lawtimesnews.com 12-11-08 1:56 PM 12-07-05 11:39 AM

• Cover