We have written previously about the expectation of privacy in the workplace with respect to employee emails. Today we provide an update on this issue.

The issue of privacy expectations in email messages was considered recently by the Supreme Court of Canada (SCC) in the context of a criminal case and the application of the Charter of Rights and Freedoms.[1]

The issue involved emails sent by the accused to his accomplice. The latter’s iphone had been seized and searched by the police in connection with their investigation of charges of trafficking in firearms.

Prior to the SCC decision, the Ontario courts had concluded that once emails had been sent and received, the accused had lost control over them and hence could not assert a claim to privacy.

The SCC disagreed and, in so doing, set aside the convictions and acquitted the accused. The decision is important for many aspects of the law, not simply criminal cases interpreting Charter rights.

The fundamental issue was that a person may still have a reasonable expectation of privacy in sent and received messages. This being said, not every message will lead to a privacy right. To be given protection against unreasonable search and seizure conduct, the court will consider these factors:

• What was the subject matter of the search?
• Did the person have a direct interest in the subject matter?
• Did the person have a subjective expectation of privacy?
• Was this expectation reasonable?

In this case, the accused had repeatedly asked the recipient to delete the messages from his phone which assisted him in establishing a reasonable expectation of privacy.

Impact on the Workplace

Often these cases are used to establish the ground rules of conduct in a non-criminal and non-Charter context.  Companies must be cautious not to search individuals’ phones, even if owned by the employer. The same rule will likely apply to private email accounts even though they may be located on the company servers and even on the company’s internal email server. These issues are complex and remain to be acutely defined. The fundamental rule, however, is likely one that will respect employee privacy rights in this context.

Employees’ Views

Many communications may well be protected and not mandated for production in the course of employment and litigation.

Get Advice on Workplace Privacy Issues

This is a relatively new and complicated legal topic. Every employer should have in place a clear and precise agreement setting out its rights on this subject. Every employee should have solid preventive advice on how to avoid such problems and how to deal with them should issues arise.

If you have questions about workplace privacy issues, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise both employees and employers on issues in the workplace. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] R. Marakah