Privacy Matters at Work: The top ten Canadian cases

In an era of rapid technological development, it is crucial for employers, unions and employees to understand workplace privacy rights. In this audio conference, join Lancaster’s panel of experts as they explain ten key Canadian privacy decisions and their implications for employee privacy rights in contemporary workplaces. The panelists will focus on topics including:

Balancing of interests and alcohol and drug testing

• Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (Supreme Court of Canada): Has the Supreme Court of Canada’s ruling in Irving Pulp and Paper affected the scope of, and arbitral approach to, management rights? Is a balancing of interests approach now mandated in all cases where employer rules impact on employee privacy rights? Are there any arbitral decisions post-dating Irving that have upheld random alcohol testing? What about alcohol or drug testing post-incident or for reasonable cause?

Reasonable expectation of privacy in the workplace

• R. v. Cole (Supreme Court of Canada): Do employees have a reasonable expectation of privacy with respect to personal data stored on workplace electronic devices? How can employment policies heighten or diminish employees’ reasonable expectation of privacy in the workplace? Will personal information stored on smart phones, laptops or other devices that employees are expected to take home attract greater protection than information stored on computers that do not leave the workplace?

Criminal record checks

• Rouge Valley Health System v. Ontario Nurses’ Association (Ontario Labour Arbitration): Can current employees be required to undergo criminal background checks? What if the employees work in a security or law enforcement position? If the employees work with vulnerable populations, such as children or the elderly? What less intrusive measures should workplace parties consider as possible alternatives to mandatory background checks?

Off-duty conduct

• Unifor, Local 433 v. Crown Packaging Ltd. (British Columbia Labour Arbitration): Can employers rely on off-duty surveillance evidence to justify disciplinary measures? What privacy concerns are raised by surveillance of this nature? How do decision-makers balance management rights with employee privacy interests in such cases?

On-site surveillance

• Ottawa-Carleton District School Board v. Ontario Secondary School Teachers’ Federation, District 25 (Ontario Labour Arbitration): What is the status of an employee’s right to privacy in the workplace? When will workplace surveillance be considered an invasion of employee privacy rights? Are arbitrators in all Canadian jurisdictions now required to use a balancing of interests or “reasonableness” approach when assessing the admissibility of covertly obtained video surveillance evidence in the workplace?

Medical information

• Syndicat des infirmières, inhalothérapeutes, infirmières auxiliaires du Coeur du Québec (SIIIACQ) c. Centre hospitalier régional de Trois-Rivières (Quebec Court of Appeal): Is an employer entitled to request medical information from prospective employees? When will pre-employment requests for medical information be considered overly broad or intrusive? Can an employee be disciplined for falsely denying a medical condition during the pre-employment screening process?
• Donaldson v. Western Grain By-Products Storage Ltd. (Federal Court of Appeal): What medical information is an employer entitled to request upon an employee’s return to work following a medical leave? How should workplace parties respond when a concern has been raised that an employee is unfit to perform his or her job or is a danger to other employees or company property? How do decision-makers balance an employer’s interest in workplace efficiency and safety with employee privacy rights in such cases?

Medical examinations

• Canada (Attorney General) v. Grover (Federal Court of Canada): When can an employer require an employee undergo a medical examination by the physician of its choosing? What constitutes “exceptional and clear circumstances” warranting a request for an independent medical examination? Can an employee be disciplined for refusing to submit to such an examination?

Privacy action for “publication of embarrassing private facts”

• Doe 464533 v. N.D. (Ontario Superior Court of Justice): What is the nature of the claim for “publication of embarrassing private facts”? What are the four elements that must be established for a successful “publication of embarrassing private facts” claim? What is the significance of this decision for Canadian employers, unions and employees?

Privacy action for “intrusion upon seclusion”

• Jones v. Tsige (Ontario Court of Appeal): What is the nature of the action for “intrusion upon seclusion”? What has been the impact, to date, of the new action on the exercise of privacy rights in the workplace? What are some best practices for Canadian employers and unions for avoiding these types of claims?