Do Employees Have Charter Privacy Rights In The Workplace?

A recent decision from the Supreme Court of Canada ("SCC") found that searching an employee's work laptop may be an unreasonable interference with privacy rights under section 8 of the Canadian Charter of Rights and Freedoms ("Charter").¹

Section 8 of the Charter protects against unreasonable search and seizure. While "search and seizure" is a concept typically considered in the criminal context, this case confirms that the Charter and section 8 may also apply in civil proceedings, including those involving the workplace.

The case involved two teachers' privacy rights in a document created on one of their personal Gmail accounts, but accessed on employer-owned computers. The school principal searched the computers after complaints the teachers were keeping a "log" about other employees.

While in one of the teachers' classrooms, the principal touched the computer trackpad and saw the log was open. The principal read the document, took pictures with his phone, and seized both teachers' computers. Both teachers were disciplined.

The teachers' union grieved the discipline and raised the privacy interests of the teachers. The labour arbitrator found there was no breach of the teachers' reasonable expectation of privacy when balanced against the school board's interest in managing the workplace.² After various appeals, the SCC overturned the labour arbitrator's decision.

First, the SCC confirmed that Ontario public school teachers are protected by section 8 of the Charter in the workplace. Therefore, the Arbitrator should have considered the teachers' privacy rights under the Charter.

Second, the SCC provided some principles for consideration when assessing privacy rights under the Charter in the workplace:³

• The section 8 analysis asks the same questions in the workplace context as the criminal context:
  • 1) does the employee have a reasonable expectation of privacy?
  • 2) is the search or seizure reasonable?
• The employer's operations, policies and procedures may be relevant for assessing the employee's reasonable expectation of privacy
• Employees may have a lower expectation of privacy when storing information on an employer-owned computer and the employer has a policy stating the data stored belongs to the employer
• Employees may have a higher expectation of privacy where the employer permits employees to use work laptops for personal purposes
• A search or seizure that is unreasonable in the criminal context may be reasonable in the workplace context

Even though the decision focused on the Charter's application to employees of public bodies, employees in other sectors can expect an extension of these principles.

In provinces with private sector privacy legislation, such as British Columbia, Alberta and Quebec, similar considerations regarding workplace privacy are evolving from the statutory reasonableness requirements and limitations. As the British Columbia Court of Appeal has noted, the SCC's search and seizure jurisprudence pursuant to section 8 of the Charter has historically informed the analysis addressing the scope of civil privacy interests.⁴ Thus, this decision will probably inform the interpretation of those laws and in other provinces support the development of common law concepts of privacy and their application to the workplace.

Footnotes

1. York Region District School Board v Elementary Teachers' Federation, 2024 SCC 22 [York Region].

2. Ibid, at para 22.

3. York Region, supra note 1 at paras 101 to 106.

4. G.D. v. South Coast British Columbia Transportation Authority, 2024 BCCA 252

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