Privacy in the Workplace

• Author: Netta Romano
• Pages: 147-173

147

Privacy in the

Workplace

5

Learning Outcomes

After completing this chapter, you will be able to:

• Recognize the privacy concerns of employers and

employees in today’s workplaces.

• Identify when and how the federal Personal

Information Protection and Electronic Documents Act

affects provincially regulated employers in Ontario.

• Identify privacy rights in Ontario workplaces.

• Recognize the privacy issues surrounding drug and

alcohol testing in the workplace.

Introduction ........................ 148

Personal Information Protection and

Electronic Documents Act .......... 149

PIPEDA’s Ten Principles ............... 150

Privacy Rights in Ontario Workplaces ... 154

Unionized Workplaces ............... 156

Non-Union Workplaces ............... 161

Monitoring Computer, Email, and

Internet Usage .................. 163

Recordings by Employees ............. 165

Drug and Alcohol Testing ............. 167

Further Reading ..................... 169

Related Website ..................... 169

Key Terms .......................... 169

Review Questions ................... 169

Discussion Questions ................. 170

Appendix 5.1 PIPEDA Complaint Form .. 171

© 2022 Emond Montgomery Publications. All Rights Reserved.

148 EMPLOYMENT LAW FOR PARALEGALS

Introduction

Historically, the right to privacy has not been recognized as a separate right under the

common law in Canada. In the past, the privacy of the average person has been

protected by the practical difculties of locating and compiling numerous records.

However, in our electronic age, where personal information can be compiled and

transferred in seconds, and an individual’s activities monitored in unprecedented

ways, privacy concerns are now paramount. These concerns are currently reected in

legislation to safeguard the privacy of personal information, in developments under

the common law, and in legal decisions that, for example, restrict the admissibility of

evidence gained through electronic means.

Canada’s original privacy legislation related to personal information held only by

governments. For example, Ontario’s Freedom of Information and Protection of Pri-

vacy Act,

1 enacted in 1991, allows individuals to le a request for information held by

the Ontario government. It also provides privacy protection for the personal informa-

tion of employees in Ontario’s public sector. Every province and territory has privacy

legislation governing the collection, use, and disclosure of personal information held

by government agencies.

2

In 2001, the federal government, followed by several provincial governments,

passed legislation that covers personal information held by organizations in the private

sector. The federal law is called the Personal Information Protection and Electronic

Documents Act.

3

In 2012, in the case of Jones v Tsige,

4 discussed below, the Court of Appeal for

Ontario became the rst appellate court in Canada to recognize the common law tort

of “intrusion upon seclusion.”

In short, this is a developing area of the law, and the privacy rights that an employee

has in any given situation depend on a number of factors. These include:

• whether the workplace is federally or provincially regulated;

• in the case of a provincially regulated workplace, whether the province has

broad-based privacy legislation (for example, British Columbia, Alberta, and

Quebec do; Ontario does not); and

• whether the workplace is unionized or not.

We begin the discussion of privacy in the workplace with a look at PIPEDA and the

ways in which personal employee information is dealt with in organizations subject to its

provisions. We then examine the privacy rights that exist in the absence of general privacy

legislation for employees in Ontario workplaces, both unionized and non-unionized.

1 RSO 1990, cF.31.

2 “Freedom of Informati on and Protection of Privac y Manual” (last modied 14 July 2020), online: Government of

Ontario <https://www.ontario.ca/docum ent/freedom-information -and-protection-privac y-manual>.

3 SC 2000, c 5 [PIPEDA]. Bil l C-11, An Act to enact the Consumer Privacy P rotection Act and the Perso nal

Information and Data Protection Tribunal Act (also known as the Digital Charter Implementation Act, 2020) was

introduced in the Hous e of Commons on November 17, 2020. Among other legislative chang es, current provisions

of PIPEDA governing el ectronic alternatives to pap er records would be retained unde r the new title of

theElectronic Do cuments Act.

4 2012 ONCA 32.

personal information

information about an

identifiable individual (other

than name, title, or business

address and number) as

defined under the

Personal

Information Protection and

Electronic Documents Act

© 2022 Emond Montgomery Publications. All Rights Reserved.