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The Supreme Court Decision: Regina v Cole

An Employer’s Right to Monitor Employee Personal Communications

The Supreme Court of Canada’s judgment in R. v Cole highlights the importance of workplaces developing and implementing policies governing the use of workplace computers and equipment, since well-publicized policies will diminish – although not entirely eliminate – an employee's reasonable expectation of privacy where the information concerns the most intimate details of an individual's “biographical core”.

The case concerned a School Board’s right to monitor materials on a teacher’s school-issued laptop and the further right to hand over to police, pornographic materials discovered on it, in the absence of a warrant.

The court distinguished between the two issues. It cautioned that privacy policies and the ownership of computer equipment are not necessarily determinative of privacy rights; even where the employer owns the network or hardware, employees have a reasonable, granted diminished, expectation of privacy in their personal information residing on workplace computers. Those expectations increase with the intimacy or closeness of the information to the “biographical core” of the employee and the employee’s direct personal interest in that information. 

On the other hand, expectations of privacy to intimate personal information can be diminished by other circumstances prevailing in the workplace, such as the disclosure of privacy policies providing for monitoring employee communications where monitoring is reasonable for protecting legitimate business interests. 

The court took care to emphasize that expectations of privacy will depend on all the circumstances. It refrained, however, from offering opinion on whether those expectations increase where the employee uses his or her own device for work purposes. 

Bottom line, and under all the circumstances of the Cole case, the school had the right to monitor and seize the pornographic material.  These circumstances included the policies and practices in place as well as regular reminders of them to the staff

 Critical to Businesses and Law Enforcement is; while the school had a duty to advise the police of the material’s existence, the police had no right to seize or copy that information without a search warrant, even though the equipment belonged to the school, which clearly consented to the seizure.  This seems to be a departure from thinking in other areas of the law where “expectation of privacy” is not as prevalent.  Clearly, in such cases, an employer’s ability to hand over highly personal (as opposed to business) information to Law Enforcement Authorities must be done pursuant to lawful authority, such as a search warrant.

Here at IRG, we can help you migrate through such issues.  Be it investigation or policy development, we have significant expertise on staff to help with your business needs.  Feel free to contact us at the numbers listed below if we can be of assistance.

Toronto: (416) 213-7108
Ottawa: (613) 248-8358
Barrie: (705) 739-4800
Toll Free: (800) 721-7393