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With the proliferation of new technology and how entwined it is in our lives, the courts have recognized the need to protect personal privacy in the workplace. When it comes to the electronic devices we use at work, however, the law is still developing.

A recent arbitration decision has gone some way to clarify the issue. The Ontario Grievance Settlement Board decision Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services) concerned an employee who worked at a branch of the Ministry of Government Services. In 2012, a series of anonymous emails were sent to various individuals in the government alleging significant unethical conduct on the part of the employee’s Branch Director. In July 2012, a USB key was discovered, which was later found to belong to the employee. On inspection, the key contained draft emails and other files associated with the anonymous emails, as well as over one hundred confidential government documents. As a result of this discovery, the employee was terminated.

The body representing the employee, the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO), argued that the inspection of the USB key was a violation of the employee’s privacy rights under section 8 of the Charter of Rights and Freedoms. Therefore, they asserted that the evidence contained on the key should be ruled as inadmissible.

The Board, however, rejected this argument and did not bar the evidence found on the USB key. It judged that the decision to search the device was reasonable, as it was done within the scope of the employer’s authority and in the course of an investigation of employee misconduct. And while the employee certainly had an expectation of privacy over personal files stored on the USB key, he had no such expectation for work-related documents. So, on balance, the search did not violate any protected Charter right.

This case is a useful example illustrating the privacy protections that extend to digital technologies, particularly where personal files are involved. However, cases like this will always weigh the employee’s right to privacy with the legitimate business interests of an employer.

To read more about this issue, see our previous posts Bring Your Own Device to Work and Privacy in the Workplace: A New Tort is Born from our Workplace Matters blog.

If you have any more questions about digital technology and your right to privacy in the workplace, contact our Labour Law group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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