The availability and use of computers and the Internet in the workplace have become routine. As workplaces have changed, courts and tribunals have struggled as they applied older notions of privacy, ownership of information and workplace conduct. Recent cases have taken a traditional approach, limiting employee privacy.
One very recent case to consider these issues arose at the University of British Columbia. The university fired J.R., saying he had used his work computer to view and exchange sexually explicit information and images. He had used his personal Hotmail account for some of the activity. The case discussed the use of a hotmail account and the distinction between work computers and home computers.
The arbitrator concluded that the behaviour might not have been misconduct if it had been confined to a personal computer outside the workplace. He also confirmed that using the employer's computer to view pornography might not be grounds for discharge in all cases. He accepted the employer's position, though, that the university had the right to enact a policy against using its computers for downloading, viewing and storing pornography. He then compared that with the same activity at the grievor's home and concluded: "the viewing of pornography as a personal choice is as much protected by the legal principles of privacy as any other activity, which, while legal, is contrary to community values." (University of British Columbia v. Canadian Union of Public Employees, Local 2950 (J.R. Grievance),  B.C.C.A.A.A. No. 92 (B.C.).)
In an earlier case, the B.C. Ferry Services fired an employee for misconduct related to overtime claims. After the termination, the employer looked at the computers used by the employee. It then added another ground for termination — that personal e-mail and Internet use on company time added to the justification for the dismissal. The company's policy said that employees who used the company's equipment should consider any e-mails or other use to be available to the employer. The union did not push the idea that the employer was prohibited from looking at private e-mails. The arbitrator said that the union had been wise to do so. He said that the employee "would have, or should have, understood that his use of the computer was not protected from scrutiny by the Corporation"; and, that such personal use would "unavoidably be subject to scrutiny as part of the Corporation's right to monitor the use of its communications equipment." In other words, it would not have been a reasonable expectation that his personal communications were private. Given the employer's policy on the use of its computers, the arbitrator said the employee had waived his right to consider the information private. (British Columbia Ferry Services Inc. v. British Columbia Ferry and Marine Workers' Union (McNair Grievance),  B.C.C.A.A.A. No. 383 (B.C.).)
This approach is consistent with the American approach. U.S. courts have been quite willing to allow employers access to information created on their equipment. For example, in Smyth v. Pillsbury Co. 914 F. Supp. 97 (E.D.Pa.1996), the company fired the plaintiff for sending unprofessional messages about his supervisor on its e-mail system. The employer had given assurances of confidentiality and said that e-mail would not be intercepted. The employee's claim was based on the employer's invasion of privacy. The action failed. The court ruled: "…we do not find a reasonable expectation of privacy in e-mail communications… notwithstanding any assurances that such communications would not be intercepted by management."
Similarly, in McLaren v. Microsoft 1999 Tex. App. LEXIS 4103 (Texas C.A.), the plaintiff sued his employer for invasion of privacy after it looked at an e-mail stored in a personal folder on his office computer. The court dismissed his claim for invasion of privacy. McLaren said that Microsoft had "broken into" personal folders on his office computer and released the contents to third parties. The folders were locked by an encrypted password. Microsoft's defence was that the common law does not recognize a right to privacy for the contents computers that are provided by an employer to employees as part of their work.
The court agreed. It held that the employer had given him a workstation to do his job. The email on the computer was part of the office environment. The court said that even if McLaren had an expectation of privacy, the result would have been the same. It held that a reasonable person would not consider Microsoft's interception of the communications to give him a cause of action.
Increasingly in Canada, the legislative trend is toward greater protection of privacy rights. This is true, both at the federal level, with the enactment and extension of the Personal Information Protection and Electronic Documents Act and similar provincial statutes. For several years, arbitrators have recognized at least the principle that there are limits to the extent to which an employer can use video surveillance and similar intrusions into an employee's privacy. Courts have called federal privacy legislation part of the fundamental law of Canada. It remains to be seen whether jurisprudence will evolve to recognize privacy interests, or whether we will continue to follow the American model.
Sean McGee is a partner at the Ottawa office of Nelligan O'Brien Payne LLP. He practises labour and employment law representing unions and individuals in the public and private sectors.
[This article is reprinted with permission and first appeared in the July 2005 issue of The Lawyers Weekly.]