Thoughts from a Management Lawyer

Privacy commissioner seeking leave to appeal personal email decision.

"When a government employee uses his workplace email address to send and receive personal emails completely unrelated to his work, are those emails subject to disclosure to members of the public who request them under freedom of information legislation?" That was the question that the Divisional Court recently addressed in City of Ottawa v. Ontario.  

The Court held that:

In my view, it is not reasonable for emails belonging to a private individual to be subject to access by members of the public merely because they are sent or received on a government owned email server.   That is not a sensible or logical result whether as a question of fact or a question of law.  The implications for the many thousands of employees who work in government offices across this country are staggering.  

Dan Michaluk reviews the case as does David Fraser.   

The National Post reports that the Ontario’s privacy commissioner is seeking leave to appeal the decision.

Overview of proposed PIPEDA amendments

Have a read of David Fraser's post on his always excellent Canadian Privacy Law Blog.  For employers falling under PIPEDA, have a read of David's comments under "Employee Personal Information" and the "breach notification" proposals.

Thanks David.

Social Networking Sites and the Courts

An interesting post over at Workplace Privacy Counsel about the ethical obligation of counsel where a witness maintains a social networking site such as Facebook where they have limited access to "friends".  According to the post:

An attorney who is not on the user’s “friends list,” in theory, could effectively circumvent the user’s gatekeeping by asking a third party to send a friend request to the user. Many social networking users are not particularly selective when it comes to making “friends.”

The way in which you proceed to gain access to the information on a Facebook or other social networking site could raise issues.  It's an interesting discussion without doubt particularly in light of recent case law dealing with the disclosure of an individuals social networking activities in the context of litigation. 

There's a more recent endorsement of Master Haberman on April 14, 2009 about whether a plaintiff should deliver a Supplementary Affidavit of Documents including relevant Facebook production.  The motion was brought less than a month before trial and the motion was dismissed in the circumstances.

Expectation of Privacy and the Work Computer

Does an employee have a reasonable expectation of privacy in data stored on the work computer?  I recently touched on this in a presentation at the Osgoode Professional Development seminar Employment Law 2009 Proactively Managing Legal Risk in Challenging Times Employment Law where I spoke about Effectively Managing the Use of Technology and Company Property.

Dan Michaluk writes a Case Report – Ont. SCJ says no expectation of privacy in data stored on work computer where he reviews the recent case of R. v. Cole.  Head over to Dan's blog for a detailed discussion of the case.

A "Cone of Silence" in the Office

Do you remember Maxwell Smart of Get Smart fame?  The cone of silence?

There were no secret conversations. Times have changed and the New Scientist reports that now the 'Cone of silence' keeps conversations secret. According to the article:

"In increasingly common open-plan offices, the violation of employees' privacy can often become an issue, as third parties overhear their conversations intentionally or unintentionally," the inventors say in their patent.

Their aim is to relieve people of that concern. Instead of plastic domes, they use a sensor network to work out where potential eavesdroppers are, and speakers to generate a subtle masking sound at just the right level.

Airport Employee Security Checks

Subject to human rights legislation and obtaining suitable consents, conducting pre-hire criminal background checks is common in Canada. 

However, according to a Globe and Mail article effective immediately, "baggage handlers, caterers and other airport workers will not merely undergo standard criminal background checks through CPIC, the Canadian Police Information Centre, they will face scrutiny under much more obscure databanks, with names like PROS, ACIIS, and SPROS."

The article goes on to note that:

The sweeping scope of the checks means that people who want to work inside secure areas at Canadian airports will be scrutinized for everything from past traffic accidents to links to criminal and terrorist groups. Police can run searches for any warrants outstanding in any of the 187 member countries that form Interpol.

The decision is, of course, fraught with employment and privacy questions.   

Privacy Rights in Ontario?

There is an interesting and ongoing debate about whether employees, in Ontario,  have a "right to privacy" at common law.  In a recent decision, the arbitrator considered whether an employer was entitled to institute a biometric clock and, ultimately dismissed the grievance.  The arbitrator made the following obiter comment (as the case was decided on another basis):

In my view, the question here is not whether employees in unionized workplaces have privacy rights.  Clearly, they have some privacy rights, although those rights are not absolute.  It is hard to believe anyone would argue otherwise.

I'm not entirely certain what "argue otherwise" refers to.  Is it that there is a right to privacy?  or that it is not absolute?  In either case, it assumes the existence of a right and this is something that has been hotly debated in almost every case where surreptitious surveillance is resorted to and the employer attempts to tender that evidence at arbitration.  The Union objects, relies upon those cases coming out of BC (where there is a statutory privacy right) and transplanted into Ontario where the test for admissibility is "reasonableness".  The employer argues that there's no legitimate basis for subjecting the admissibility of video surveillance evidence to a different test than the "usual" test of "relevance".  This latter approach argues that there is no right of privacy that needs to be balanced against the employers right to manage the business. 

So, whether a right to privacy exists is argued "otherwise" in that context at least, sometimes successfully (see this post and the line of cases where arbitrators and others have questioned the existence of this right to privacy). The context (biometric clocks and admissibility of surreptitious surveillance evidence may be different and require a different focus, though the discuss of "right" seems equally applicable to both). It's an interesting topic (to me at least).

See Dan Michaluk's excellent discussion of the case in broader terms.

Consultation on Covert Video Surveillance

Thanks to David Fraser for his post on OPCC begins consultation on covert surveillance guidance advising that the Office of the Privacy Commissioner of Canada is seeking input on some draft guidelines that are posted on its website dealing with covert video surveillance.

 

The office has previously issued guidelines on the subject of video surveillance: Guidelines for Overt Video Surveillance in the Private Sector (in collaboration with Alberta and British Columbia) and Guidelines for surveillance of public places by police and law enforcement authorities.

 

The time to comment on the draft guidelines is tight - November 14,2008 so if you have anything to add, get your comments in.

"I want it all" - a comment on the world of privacy

Robert Fulford over at the National Post has written an article called the private lives of exhibitionists in which he lays out his take on the privacy culture in which we live.  He leads off with:

"We live in the most privacy-obsessed era in history. Yet our belief in the secrecy of private information exists alongside a frenzy of flagrant exhibitionism."

He takes issue with the extent to which employers (and others) are required to go in safeguarding individual privacy.  He notes, and provides legal backup, to the notion that “Requiring candidates to provide details about the years they attended school or the name of the school itself could reveal the candidate’s age, religious affiliation and place of origin.”  The Ontario Human Rights Commission issued a policy many years ago on hiring and proper questions in interviews and job applications.  These policies lack the force of law but are instructive.

Is an employer prohibited from asking for the years that a candidate attended school or the name of the school itself?  Probably not, however, where the employer asks for the information (directly or indirectly) and the candidate does not get the job or an interview, the employer may face a human rights complaint and will not be in a position to say "how could I have made my decision on a prohibited ground of discrimination, I didn't even know". 

In other words, once the question is asked and information supplied by the job applicant, the decision may become tainted and the employer will have to come up with a credible explanation for its actions and that the information did not form any part of its decision. 

The June 2008 IDEA Fitness Journal discusses a study in the Canadian Journal of Adminstrative Sciences (2007; 24 [1], 30-34) and recommends that interviewers "maintain uniformity in questioning, note-taking and use of a job description based on job analysis" and that these conform to the Canadian Human Rights Tribunals structures. 

While these uniform types of interviews are "safe" the criticism is that they are unduly rigid and don't allow a proper assessment of the candidate.

Workers are Prepared to Hand Over their Passwords for Candy

There's a stunning little article in Scientific American aptly titled Trick and treat: Workers divulge computer passwords for the promise of candy.  According to the article, 21 percent of subway riders at "London's Liverpool Street Station were prepared to reveal their computer passwords in return for a chocolate bar."  Employer's beware.