Employment & Labour

Cases should hit home for employers monitoring emails

Two recent court decisions should resonate with employers who monitor employee Internet and personal email use on workplace computers, Toronto employment lawyer Doug MacLeod writes in Lawyers Weekly.  Read Lawyers Weekly

"Canadian courts were reluctant to acknowledge a common law right to privacy until January, 2012, when the Ontario Court of Appeal recognized the right in a new tort called 'inclusion upon seclusion' (Jones v. Tsige [2012] O.J. No. 148)," writes MacLeod.

"To obtain damages for this tort, a person must prove: (i) the actions were intentional; (ii) the person/entity must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and (iii) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish."

The second case from last year came in October, when the Supreme Court of Canada in R. v. Cole [2012] S.C.J. No. 53 considered an employee’s privacy rights under the Charter of Rights and Freedoms, the article continues.

The case recognized that Canadians may reasonably expect privacy in the information contained on workplace computers where personal use is permitted or reasonably expected, and while workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely, writes MacLeod.

"If an employer plans to monitor email or Internet use, ideally the employee’s written consent should be obtained in advance via a computer-use policy," the article says. "Such a policy tells the employee that the employer will be monitoring emails and Internet use, and that the employee should have no expectation of privacy if they use the company network to send or receive personal emails or use the Internet for personal purposes."

The employer can require all new employees to sign a computer-use policy that obtains the written consent as a condition of employment, adds MacLeod.

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