Monitoring privacy.

• Author: Ray, David

A recent incident in Regina raised the issue of the rights of the employer to monitor activities of the worker in the course of employment. A group of employees of the Regina Leader Post were sitting in the lunchroom when the clock fell off the wall. They discovered that the clock was used to conceal a hidden video camera that the employer installed. What made the case even more interesting is that the Saskatchewan Privacy Act is one of the few in Canada that legislates against such activity.

Basis of Employee Privacy

Tort

Invasion of privacy is not a valid tort claim in Canada unless it has been created by statute. Some collective agreements and employment contracts may address the issue and, in some cases, company policy may provide for protection of employee privacy issues (e.g. access to personnel files, etc.). The general rule is that the employer has a right to an appropriate level of monitoring and surveillance of the work place subject to certain requirements.

Legislative

Canadian

Although the Canadian Charter of Rights and Freedoms provides for protection against things such as unreasonable search and seizure, the Charter was enacted to protect rights in relation to government bodies such as the police and the courts. It is generally held that the Charter does not apply to personal relationships such as employer/employee. The one exception is where the agent of the employer undertakes a "governmental function". An example may be where security personnel search lockers for drugs. They may be held to be acting on behalf of the state. The only consequence of that finding, however, is that any drugs which are seized contrary to the Charter may not be allowed as evidence at a criminal trial. Even then, the Crown may be able to argue that the drug seizure did not hold the administration of justice in disrepute and that, in spite of the Charter breach, the evidence may still be allowed. The proof of the Charter breach would not restrict the company from alleging an employment offence and undertaking disciplinary action.

There have been attempts by labour unions to use the Charter of Rights as an argument to restrict security procedures, but generally the courts will weigh the public interest. In the case of the Association of Machinists and Aerospace Workers, the right of Transport Canada to conduct searches, fingerprint, and carry out security checks on airport personnel was approved. Labour unions in the Province of Quebec have tried to...