Muddy Waters – Privacy in the Workplace

August 20, 2012 | Aniroodh Devalia

With the rapid rate of technological change, an employee’s expectation of privacy while using employer owned technology is an important issue to be considered.

The Alberta Court of Appeal case of Poliquin v. Devon Canada Corporation ruled that the Plaintiff, Mr. Poliquin, was not able to assert a reasonable expectation of privacy regarding communications sent and received on Devon Canada Corporation’s (“Devon”) computer.  In this case, Mr. Poliquin was dismissed by Devon for sending and receiving derogatory, racist, and p*rnographic1 e-mails via his workplace computer.

In concluding in favour of Devon, the Court relied on Devon’s employee policies regarding the use of workplace computers. The Court ruled that an employer has a right to scrutinize an employee’s use of the employer’s equipment. The corollary of this – an employee does not have an expectation of privacy when using employer owned technology.

The 2011 Ontario Court of Appeal decision in R v. Cole has muddied the waters. In this case, Richard Cole was a high school teacher that was provided a laptop by the school board. The laptop was owned by the school board however Cole had exclusive use and possession of the laptop and protected access to the laptop by way of a password. The teachers were permitted to use their computers for personal use and to take home during weekends and vacations. Cole remotely accessed a student computer and found nude photos of a grade 10 girl. He saved this on the school owned laptop.

A computer technician that was employed by the school to do system maintenance remotely accessed Cole’s laptop and found the picture saved in a secret folder. The main issue was whether Cole had a reasonable expectation of privacy in the contents of the work computer on which he was entitled to store personal information. The Court found (contrary to the Poliquin case) that Cole had a reasonable expectation of privacy. In determining this, the Court pointed to the fact that the school’s computer use policy did not address searching within computers nor did it address any issues of privacy, except as related to e-mail.

While the two cases have resulted in opposite decisions, muddying the waters regarding an employee’s reasonable expectation of privacy, an employer’s right to monitor its workplace hardware and software is fact-specific. The Cole case was very different than the Poliquincase. The policies in the Cole case were not as detailed, the alleged wrongdoing was a criminal offence, and there were Charter issues, none of which were existent in the Poliquin case.

These factual differences between the two cases cannot be overstated. That being said, the Cole case has been appealed to the Supreme Court of Canada. The decision of Canada’s highest Court will likely provide some clarity on this important issue.

Stay tuned for a further update!

Poliquin Case

Cole Case

Factum of the appeal to the SCC of the Canadian Association of Counsel to Employers

1 The spelling has been modified slightly – many employers and employees interested in this blog, likely have some security software that may block them from viewing this blog post!


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