Top Five Workplace Privacy Questions: Answers to employers’ most frequent privacy inquiries

By Lyndsay A. Wasser

Posted: 17th May 2012 09:48

In Canada, privacy is a relatively new and evolving area of law that is governed by a complex network of provincial and federal legislation as well as the common law.  Set out below are brief, general responses to employers’ 5 most common questions about workplace privacy.
 
1.  Do Employees have Privacy Rights?
 
Privacy legislation across Canada restricts and regulates collection, use, disclosure, storage and security of personal information.  However, in some jurisdictions there is no privacy legislation applicable to private sector, provincially regulated employers, with respect to employee personal information and employment matters.  The main privacy legislation applicable to private-sector employers is as follows:

There are also statutory torts of invasion of privacy in British Columbia, Manitoba, Newfoundland and Saskatchewan, and some provinces (including Ontario) have specific legislation governing protection of health-related personal information.  Further, separate legislation exists in each province, which is applicable to public-sector organisations.  In addition, the Criminal Code of Canada creates the following privacy-related offences: (1) Using a device willfully to intercept a private communication without the express or implied consent of the originators or intended recipient; and (2) Intercepting fraudulently and without colour of right any function of a computer system.
 
In jurisdictions that have not enacted privacy legislation applicable to employment matters, it is not clear whether employees have any privacy rights in the workplace.  In unionised workplacesthere are some arbitral case law that recognises workplace privacy rights (esp.  relating to monitoring, drug and alcohol testing, medical testing and/or searches of employees and their property).  However, some arbitrators have rejected the proposition that employees have privacy rights in jurisdictions that are not governed by privacy legislation.  Where privacy rights are recognised by arbitrators, they are generally assessed with reference to the applicable collective agreement.
 
In non-unionised workplaces, the existence and scope of employee privacy rights is unclear.   However, in the recent Ontario case of Jones v.  Tsige, the Ontario Court of Appeal definitively recognised a new tort of “intrusion upon seclusion”.  Specifically, the Court of Appeal stated that: “One, who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”  Employers can likely expect to see “intrusion upon seclusion” claims from employees going-forward, particularly in connection with wrongful dismissal or constructive dismissal claims.
 
2.  Can Employers Conduct Background Checks?
 
Generally employers can conduct background checks on job applicants and employees.  However, federal employers, and employers in Quebec, must first obtain consent to such background checks, and employers in Alberta and B.C.  must provide advance notice of such checks, in accordance with applicable legislation.  Further, under the privacy laws in these jurisdictions, employers must advise job applicants and employees of the purposes for which their personal information will be collected, used and disclosed, and the background checks must be limited to those that are reasonably required to assess the employee’s suitability for continued or prospective employment.  Therefore, for example, employees should not be subject to driving records checks if their job duties do not involve driving or operation of a vehicle.
 
For provincially-regulated employers outside Alberta, B.C.  and Quebec, the law respecting background checks is unsettled.  In one prior Ontario case (Somwar v.  McDonalds’ Restaurants of Canada Ltd.), the court refused to dismiss an employee’s claim that his employer breached his privacy rights by conducting a credit check on him without his knowledge or consent.  However, this case only considered whether the matter should be dismissed at a preliminary stage, on the basis that it disclosed no reasonable cause of action.  The Court did not determine whether the employer had, in fact, breached the employee’s privacy rights.  Since this case was never decided on its merits, the common law respecting background checks is still unclear.  However, it is possible that an employee could claim that an unreasonable background check, performed without his/her consent, constitutes an “intrusion upon seclusion” under the common law.
 
In addition to the above, employers should be aware that there are laws that do not relate to privacy, which may apply to background checks (e.g., human rights laws and consumer reporting laws). 
 
3.  Can Employers Monitor Employees?
 
Privacy commissioners and arbitrators have developed different tests to evaluate whether monitoring of employees is acceptable.  Although such tests were typically created to evaluate video monitoring, they have been applied to other types of monitoring as well (e.g.  monitoring email and internet use, GPS tracking etc.).  There are some inconsistencies between adjudicators.  However, generally the tests applied in the different jurisdictions are as follows:
 
(i)  Federal and B.C.  Privacy Commissioners:

(ii)   Alberta Privacy Commissioner:

(iii)  Quebec Privacy Commissioner:

(iv)  Factors considered by arbitrators with respect to unionised workplaces:

For non-unionised, provincially-regulated employers outside of Alberta, British Columbia and Quebec, there are no legislative restrictions or clear guidelines respecting monitoring employees.  However, one previous case indicates that implementation of video monitoring may constitute constructive dismissal on the basis that it creates a hostile work environment.  Further, based on Jones v.  Tsige, employees may now allege that unreasonable monitoring constitutes an “intrusion upon seclusion” under the common law.
 
4.  Can Employers Share Employee Information with Foreign Affiliates?
 
With the possible exception of Quebec, it is generally permissible for an organization to transfer employees’ personal information to affiliates in the United States of America and other foreign jurisdictions, provided certain conditions are met.
 
Under federal, Alberta and B.C.  privacy legislation, organisations must ensure a comparable level of protection to that which the applicable legislation provides when the information is transferred to a third party for processing and/or is still under the organisation’s control.  A data protection agreement between the Canadian organisation and the foreign affiliate may be necessary in such circumstances, unless the affiliate’s privacy policies and data protection practices are comparable to the Canadian entities policies and practices.  If the personal information is being disclosed to a foreign affiliate (for the affiliate’s purposes and not for processing on behalf of the employer) employees’ consent to such disclosure may be required (or advance notice in Alberta and B.C.  if the disclosure is reasonable for the purpose of establishing, managing or terminating the employment relationship).
 
In addition to the above, Alberta’s privacy legislation contains the following specific requirements when information will be transferred to a “service provider” (which includes a parent company, subsidiary or other affiliate which directly or indirectly provides a service for or on behalf of the organisation) outside Canada:
 
(i) The organisation must have privacy policies that include information regarding the countries outside Canada where the collection, use, disclosure or storage of personal information is occurring or may occur, and the purposes for which the service provider outside Canada has been authorized to collect, use or disclose the personal information; and (ii) Individuals must be notified of the cross-border transfer of their personal information, in advance, including information about how the individual can obtain access to written information about the organisation’s policies and practices with respect to service providers outside Canada, and the name, position or title of a person who is able to answer the individual’s questions about the collection, use, disclosure or storage of personal information by service providers outside Canada.
 
The federal Privacy Commissioner has also taken the position that organisations should inform individuals that their information will be transferred to a foreign jurisdiction and subject to the laws of such jurisdiction, before personal information is transferred outside Canada.
 
Quebec takes the strictest approach to transferring information to foreign entities.  Under An Act respecting the Protection of Personal Information in the Private Sector, employees must be notified of the location where their personal information will be held.  Further, the Act provides that if an organisation communicates personal information outside Québec or entrusts a person outside Québec with the task of holding, using or communicating such information on its behalf, the organisation must first take all reasonable steps to ensure that the personal information will not be used for purposes other than the purposes for which it was collected or communicated to the third person (except with the consent of the employee concerned).  If the organisation cannot ensure that the information will not be misused, then it must refuse to communicate the information or refuse to entrust a person or a body outside Québec with the task of holding, using or communicating the information.
 
5.  Are Employees Entitled to Access Employers’ Records?
 
Employees in Alberta, British Columbia and Quebec, as well as employees of federally regulated organizations, are entitled to access any or all of their personal information (generally within prescribed time limits and at little or no cost to the employee).  Employees are also entitled to challenge the accuracy and completeness of information held by employers, and to have such information amended if it is inaccurate or outdated.
 
There are some exceptions to employees’ general statutory rights to access their personal information.  Such exceptions vary in different jurisdictions, but some examples include:

However, the above exceptions have generally been construed narrowly, and if the information that fits within the exception can be severed, in some cases it must be severed and the employee is entitled to the remaining personal information.
 
As the common law respecting employee privacy rights is still developing, it is unclear whether employees of provincially-regulated, private-sector employers outside Alberta, B.C.  and Quebec have any right to access their personnel files or other personal information held by the employer.  However, for unionised employers, the applicable collective agreement may contain a clause that entitles employees to view their personnel files.  Some non-unionised employees may also have the right to access their personal information under the employers’ policies.
 
Conclusion
 
Although this short paper provides a brief, general overview of some important privacy matters, regional differences exist and every fact scenario has the potential to raise unique legal issues.  Given the complex framework of privacy laws in Canada, employers are encouraged to seek legal counsel before taking any action (or omitting to take any action) that could have privacy implications. 
 

Lyndsay Wasser
 
is a partner in McMillan LLP’s Employment and Labour Relations Group, who practices in all areas of employment and labour relations law. Lyndsay advises management with respect to employment terminations, hiring, wrongful dismissal claims, employment standards matters, employment contracts, employment policies, human rights applications, workers' compensation and occupational health and safety matters. In addition, Lyndsay represents management in grievance arbitrations and in matters before the Ontario Labour Relations Board and the Canada Industrial Relations Board.
 
Lyndsay also provides advice on employee privacy matters, including protection of data transferred across borders. Further, she advises employers on the labour and employment implications of corporate transactions, including identifying employment and/or labour issues arising out of documentary disclosure as well as negotiating and drafting employment and labour provisions in share purchase and asset purchase agreements.
 
Lyndsay can be contacted via email at lyndsay.wasser@mcmillan.ca or alternatively by calling +1 416 865 7083.


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