R v Cole, Jones v Tsige: Clarifying the Implications in the Workplace

April 16, 2013

Dan Michaluk

These are my speaking notes. They are not legal advice and should not be relied upon as legal advice.

1. What are the workplace implications of Jones v Tsige?

-very significant in society, of limited practical impact on employers

(a) Should have no effect on employer’s ability to ask for information and impose employment-related consequences for failing to answer an reasonable request

-Complex Services case (February 22, 2013, Surdykowski)

-Medical information case

-Doesn’t change the balance

-Employers can ask, employees must consent if request is reasonable

(b) Should have limited effect on employer’s ability to monitor, investigate and audit in the workplace

-reasonable expectation of privacy + in circumstances that are highly offensive to the reasonable person

-nervous about true fishing – i.e., where there is no basis in fact to believe there is evidence of wrongdoing to be found

-nervous about failing to follow policy – e.g., where policy says that pulling e-mail will be authorized by VP or above and nobody thought to obtain authorization

(c) May have a significant effect on an employer’s ability to conduct video surveillance outside of the workplace

-quite significant

-employers will be responsible for the actions of their PIs

-no weddings and funerals! not what’s going on in the living room!

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(d) Reinforce employer’s control access to individual personal information by employees because it is clear that they will be personally liable for intentional intrusions. Questionable effect on employer liability.

-intrusion is an intentional tort

-the theory for vicarious employer liability will be appealing given data breach claims brought in negligence face a serious difficulty in meeting damages element (causation, compensability, remoteness all issues)

-strict liability + moral damages is tempting

-Bazely “strong connection test” – “wrong so connected with the employment that it can be said that the employer has introduced the risk of wrong”

-no precedent yet and highly debateable

2. What are the workplace implications of R v Cole?

-creates an important basis for a claim but not a claim itself

-puts employers in a good position to assert their management right

(a) REP finding is a basis for an employee claim

-very broad REP finding (hard to distinguish)

-not likely a simple constraint on police

-not likely a simple constraint on government employers

-REP is a judicial construct that defines the scope of privacy interest that will be protected

-judges will apply it

-arbitrators will apply it

(b) “To what effect?” Not answered.

-very clearly, we’re not saying what this means for employers

-Charter bound – standard of “reasonableness” in any context is undefined

-Others – scope of management right is undefined

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-note McNeice would have been a better factual basis for fighting the REP!

(c) Quite good for employers though

-affirms the school board’s actions in obiter

-minimal and very minimal – not “entirely eliminated”

-Cole “chose to record” his information there

-Choice and convince will matter in weighing the competing interests

-Therefore if you provide notice as an employer you should be okay

3. What should employers do in light of these cases? What should the privacy-minded employee do?

(a) Employer. More suspect in video surveillance retainers outside the workplace for non-union employees. Written terms of engagement for PIs.

(b) Employer. Clear express notice for right to access information. Surface five purposes from Cole factum. Highlight choice.

(c) Employee. Govern yourself accordingly. You may be personally liable for unauthorized intrusions! (Ripple effect on cause cases? See Steel v Coast Capital Savings Credit Union, 2013 BCSC 527)

(d) Employee. Continue to be circumspect about use of the employer’s network for sensitive personal dealings. Don’t rely on Cole as an indication the employer won’t see it. The headlines don’t address the full story!