Protection Against Unreasonable Searches in the Workplace and Technological Tools

M^e Robert E. Boyd, CRIA

Labour and Employment Practice Group, Cain Lamarre

Summary

The author addresses a recent judgment by the Supreme Court of Canada (York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22[1]) that concerns the protection of privacy at work when employers access their employees’ computers during an investigation. How do you balance a reasonable expectation of privacy with the managerial requirements of employers?

The issues involved in protecting employees’ right to privacy in the context of an employment relationship are covered by a considerable body of arbitral decisions. Due to the omnipresence of smart devices, computers and other technological tools that are often used for both professional and personal purposes, an assessment needs to be carried out frequently to ensure that an employer's right to monitor work and take disciplinary action is balanced with an employee's right to privacy.

The Supreme Court of Canada recently addressed the case of a school principal who had reprimanded two teachers after intercepting a log of conversations between them stored in a cloud. The Supreme Court concluded that the Canadian Charter of Rights and Freedoms[2] (hereinafter “Charter”) protects the teaching personnel of Ontario’s school boards against unreasonable searches or seizures in their workplace. The Supreme Court took this opportunity to review the principles of an employee’s reasonable expectation of privacy in the workplace, an expectation that may be higher or lower depending on the circumstances. Although this Supreme Court judgment addresses the context of an Ontario school board, it has relevant lessons for all employers on protecting privacy in the workplace.