llness and Absenteeism.com - October 2012 Newsletter

In this edition you will find...


Featured Article - Supreme Court of Canada Concludes that There is a Reasonable Expectation of Privacy in Files Stored On an Employer- Issued Computer [R. v. Cole, 2012 SCC 53]

This decision was released on October 19, 2012. The Ontario Court of Appeal Decision is considered at page 476 of the Illness and Absenteeism manual.

In this particular case, a school technician, while performing maintenance activities on the teacher’s computer, discovered a hidden folder that contained nude photos of a female student. These photos had been copied from another student’s computer using the remote network access privileges that had been granted to the teacher to view student files. The teacher had not brought the existence of the photos to the employer’s attention.

The technician notified the principal and he then seized the computer. Copies of the files were made and the police were notified. They were provided with the computer, with CD files replicating the offending material that had been discovered by the technician, and with a disc containing a mirror image of the computer’s hard drive. The officer reviewed the contents of the discs at the police station and then sent the computer away for forensic examination. No attempt was made to obtain a warrant to search the teacher’s hard drive or the compact discs. The teacher was subsequently charged with possession of child pornography and unauthorized use of a computer contrary to the Criminal Code.

The Court of Appeal held that the teacher “had a reasonable expectation of privacy in the informational content of the laptop, but that this expectation was ‘modified to the extent that [the teacher] knew that his employer’s technician could and would access the laptop as part of his role in maintaining the technical integrity of the school’s information network.’ It concluded that “the search and seizure of the laptop by the principal and the school board was authorized by law and [was] reasonable. The disc containing the photographs was thus created without breaching s. 8 [of the Charter, the right to be free from unreasonable search and seizure]. And since [the teacher] had no privacy interests in the photographs themselves, he had no legal basis to attack the search and seizure by the police of the disc to which they had been copied.”

The Court of Appeal however excluded the laptop and the disc containing the teacher’s temporary internet files on the basis that the teacher “had a reasonable continuing expectation of privacy in this material, and its seizure by school authorities did not endow the police with their authority. Nor could the school board consent to the search by police.” The police search of this material was therefore held to be a violation of the Charter by the police.

Section 24(2) of the Charter provides in part that where a court concludes that “evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by [the] Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (see commentary in section 12:503 of the Illness and Absenteeism manual, commencing at page 471). On this basis, the Court of Appeal excluded the laptop and the mirror image of its hard drive. It also provisionally excluded the disc containing the internet files, leaving it “open to the trial judge to assess the admissibility of this evidence if the evidence becomes important to the truth-seeking function as the trial unfolds.” The Court of Appeal ordered a new trial on the basis that the disc of the photographs of the student was legally obtained and should have been admitted at trial.

The Supreme Court of Canada upheld the Court of Appeal’s decision that the teacher had a reasonable expectation of privacy in his employer-issued work computer, and that the search and seizure by the police of the laptop and the disc containing the internet files was, in the absence of a search warrant, unreasonable within the meaning of s. 8 of the Charter. It concluded however that “the admission of the evidence would not bring the administration of justice into disrepute. The breach was not high on the scale of seriousness, and its impact was attenuated by both the diminished privacy interest and the discoverability of the evidence. The exclusion of the material would, however, have a marked negative impact on the truth-seeking function of the criminal trial process.” The court declared that the evidence unlawfully obtained by the police should nevertheless have been admitted at trial.

On the issue of the employer’s computer policy, Fish J. stated:

The use of [the teacher’s] work-issued laptop was governed by the school board’s Policy and Procedures Manual, which allowed for incidental personal use of the board’s information technology The policy stipulated that teachers’ email correspondence remained private, but subject to access by school administrators if specified conditions were met. It did not address privacy in other types of files, but it did state that “all data and messages generated on or handled by board equipment are considered to be the property of [the school board].

There is evidence as well that the school’s Acceptable Use Policy – written for and signed by students – applied mutatis mutandis to teachers. This policy not only restricted the uses to which the students could put their laptops, but also warned users not to expect privacy in their files.

… While the ownership of property is a relevant consideration, it is not determinative … Nor should it carry undue weight within the contextual analysis …

The context in which personal information is placed on an employer-owned computer is nonetheless significant. The policies, practices and customs of the workplace are relevant to the extent that they concern the use of computers by employees. These ‘operational realities’ may diminish the expectation of privacy that reasonable employees might otherwise have in their personal information …

Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation …

In this case, the operational realities of [the teacher’s] workplace weigh both for and against the existence of a reasonable expectation of privacy … The “totality of the circumstances” consists of many strands and they pull in competing directions in this case. On balance, however, they support the objective reasonableness of [the teacher’s] subjective expectation of privacy.

The decision stands for or reiterates the following principles:

  1. The Canadian Charter of Rights and Freedoms applies, by reason of Section 32 of the Charter, to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. This has been interpreted as being broad enough to include all entities that are essentially governmental in nature, and consequently its scope need not be confined to entities that are part of the provincial or federal governments. (see page 471 of the Illness and Absenteeism manual.). In this case, the parties accepted that the Charter applied to the activities of the school board that employed the accused, with the Supreme Court of Canada commenting that “it is unnecessary on this appeal to decide whether the Charter applies to school officials. The Crown conceded in the courts below that it does.” Regardless, the case involved criminal charges, and the Charter would have been applicable to the failure of the police to obtain a search warrant in the circumstances of this case.
  2. Section 8 of the Charter stipulates that where the Charter applies, “Everyone has the right to be secure against unreasonable search or seizure.”
  3. “Canadians may reasonably expect privacy in the information contained on their own personal computers … The same applies to information on work computers, at least where personal use is permitted or reasonably expected.”
  4. While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely.
  5. A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter. Accordingly, it is subject to state intrusion only under the authority of a reasonable law.
  6. Employer computer-use policies need to be re-examined in the context of this decision. Consideration should be given to whether the policies should be enhanced by having the employee execute an informed consent that would permit the employer to search and disclose the contents of an employer-issued laptop.
  7. An employer should not provide authorities with computer content except in response to an appropriate search warrant. Doing so will avoid issues that may arise in the context of a criminal prosecution. 


Recent Decisions of Interest

  1. Post termination psychiatric evidence will most often be admissible. Moreover, an employer will not be required to call rebuttal psychiatric evidence as part of its “case-in-chief”

An employee, who had been employed as a bus operator for over four years, was terminated for culpable absenteeism.

The Union accepted that the employee had failed to properly advise the employer of his absences and/or to provide the necessary supporting medical documentation for such absences. The Union however asserted that that the employee suffered from depression and that such disability impacted his ability to meet the employer’s requirements. It proposed to call a psychiatrist who had examined the employee some nine months after the date of termination.

Some sixteen months prior to his termination, the employee had undergone an independent psychiatric assessment by a psychiatrist selected by the employer. That examination suggested that the employee suffered from dysthymia, a low-grade type of depression which did not prevent the employee from performing his duties as a bus operator. The issue here was whether the Employer was required to call the psychiatrist as part of its evidence-in-chief, or whether it could call the psychiatrist to lead his evidence in reply.

In the result, the arbitrator held that the Union’s post-termination psychiatric evidence was admissible and that the employer was entitled to call its psychiatric evidence by way of rebuttal. Ottawa (City) (2012), 218 L.A.C. (4th) 83 (Sheehan) 

  1. A medical note from a midwife may be sufficient to satisfy proof of illness.

The employee’s primary health-care provider, for matters related to her pregnancy, was a fully registered midwife certified by the Alberta Disciplines Board. She fell within the scope of the province’s Midwifery Regulation.  In accordance with accepted practice, the employee’s regular physician did not participate in her pre-natal care but left such care up to her midwife.

The only issue to be determined was whether proof of illness from a midwife was sufficient to satisfy the proof of illness provisions under the collective agreement. The employer contended that the requirement to “provide a medical certificate or other satisfactory proof of illness” mandated that such requirement could only be met by way of a physician’s note.

In finding in favour of the employee, the arbitrator commented that the clause, which contained no reference to a physician, provided two alternative routes of proof; that being  either a “proper medical certificate” or “other satisfactory proof of illness.” The arbitrator found that it was not necessary to interpret the words “medical certificate”, for the note from the grievor’s midwife, her primary health care provider, amounted to “other satisfactory proof of illness” pursuant to the terms of the collective agreement.

The case contains an extensive discussion regarding the application of estoppel in a labour relations context. Alberta (2012), 218 L.A.C. (4th) 221 (Price)

  1. Placing a disabled employee into a vacant position in another bargaining unit may be justified where the union fails to establish that such accommodation would constitute undue hardship.

The disabled worker, a custodian, was placed in a vacant position in a clerical bargaining unit. The arbitrator found that there was no suitable full-time position in the custodial unit that could be modified to meet the needs of the disabled custodian.

The employee had initially been given some temporary transitional duties comprised of some clerical work and some custodial office duties. The arbitrator agreed that “the transitional job could not go on forever, as it was not a sustainable job but was more in the nature of a ‘make work’ project and that other temporarily disabled employees would need to be accommodated from time to time and that to keep [the employee] permanently in that job would negate any such opportunity.”

The arbitrator stated:

The Employer can step outside the bargaining unit and encroach on another unit in order to accommodate an employee only when it has established that there is no reasonable way, including the restructuring of jobs, to accommodate the employee within the unit. If it establishes this factual context the Union can only resist the accommodation if it can establish that it would cause undue hardship. Waterloo Catholic District School Board (2012), 218 L.A.C. (4th) 254 (Rayner)

  1. In a case involving the admission of video surveillance showing activities inconsistent with alleged medical restrictions, an arbitrator determined that the correct test for admissibility in Ontario was that of relevance rather than reasonableness.

Arbitrator Crljenica commented that although he had once relied on the reasonableness test, his view had changed with his decision in Hotel-Dieu Grace Hospital (2010), 195 L.A.C. (4th) 383 (Crljenica) (discussed extensively at pages 443-444 of the Illness and Absenteeism manual.). He stated that:

The test to be applied should be based on sound legal principles. The right to have one’s case heard – audi alterem partem – is fundamental to the basic principles of natural justice and should not be relegated to a secondary role or ignored.

The case discusses particular exceptions to admissibility, with those including most discussions arising during the grievance procedure, privileged discussions meeting the Wigmore test governing confidential communications, and polygraph tests. Arbitrator Crljenica stated that:

… Admissibility is not the appropriate means by which an arbitrator should deal with what might be improper employer conduct. Such conduct can be dealt with as part of the final disposition of the grievance, after each party has had the right to present its case in accordance with the principles of natural justice, and the arbitrator has a full appreciation of the entire issue in dispute between the parties.

Northstar Aerospace (Canada) Inc. (2012), 218 L.A.C. (4th) 281 (Crljenica)

  1. A union was found to be entitled to production of the witness’s entire notebook rather than just the two pages that the employer considered relevant.

In Toronto Transit Commission (2012), 218 L.A.C. (4th) 260 (Solomatenko), the employer had produced a two page excerpt of notes contained in a notebook compiled by its reply witness. The union sought to have the entire notebook produced. The arbitrator found that the “collateral fact rule” did not apply in the circumstances, and that the union was entitled to production of the entire notebook to assist it in its cross-examination of the employee.

  1. Electronic parking records were held to be admissible as electronic business records pursuant to s. 34 and 35 of the Ontario Evidence Act. They were also considered to be admissible pursuant to an arbitrator’s discretion pursuant to s. 48(12)(f) of the Ontario Labour Relations Act.

The arbitrator concluded that the foregoing records established that the employee claimed overtime hours for time during which he neither worked nor was present on the employer’s property. He concluded that the statutory “requirement respecting the integrity of the computer system [did] not require the evidence of a technical expert.”

The union had also challenged the admissibility of this evidence pursuant to PIPEDA. The arbitrator found that there is no expectation of privacy rights in one’s parking records. Lakeridge Health Corporation (2012), 218 L.A.C. (4th) 178 (Carrier)