By Derek Knoechel and Lorene Novakowski
On June 17, 2010, the U.S. Supreme Court issued its much anticipated decision in City of Ontario v. Quon. This was its first decision regarding the monitoring of electronic communications in the workplace by employers.
What impact, if any, will the Quon decision have on Canadian law regarding employer monitoring of electronic communications in the workplace?
What the Quon case was about
The Quon case involved the employer’s review of text messages sent by a police officer using his employer-provided alphanumeric pager while on duty. Some of his messages were sexually explicit. Since the employer was a government entity, the officer’s Fourth Amendment right “to be secure … against unreasonable searches and seizure” was engaged. The court therefore had to decide whether the officer had a legitimate expectation of privacy and, if so, whether the search engaged in by the employer was unreasonable.
The U.S. Supreme Court declined to decide the issue of whether the officer had a reasonable expectation of privacy with respect to the text messages. This didn’t need to be decided because it found that the employer’s search and review of the messages had been reasonable in any event.
Relevance for Canadian employers
Section 8 of the Canadian Charter of Rights and Freedoms is Canada’s equivalent to the Fourth Amendment. It protects against unreasonable government intrusions on an individual’s personal privacy. (The section states, “Everyone has the right to be secure against unreasonable search or seizure.”) Canadian courts engage in a two-part test similar to that engaged in by American courts and have frequently looked to American decisions in this area.
While the Charter doesn’t apply to the actions of private-sector employers, “Charter values” can influence decisions applicable to such employers.
For example, Section 8 Charter cases have been referenced by some private-sector labor arbitrators when ruling on the admissibility of evidence obtained through covert surveillance of employees. In such instances, arbitrators have assessed the reasonableness of the employer’s decision to instigate surveillance and the manner in which it was conducted.
It will be interesting to see whether the following two conclusions of the U.S. Supreme Court regarding the reasonableness of the employer’s search have any impact on Canadian arbitrators:
1. The availability of less intrusive options does not necessarily make a search unreasonable.
The lower level appeal court had determined that the search was unreasonable since there were other, less intrusive, options available. In overturning that decision, the Supreme Court stated that it “has repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable.” Even assuming there were ways that the employer could have performed the search that would have been less intrusive, it doesn’t follow that the search as conducted was unreasonable. The legal requirement is merely that the search not be “excessively intrusive.”
Some Canadian arbitrators have used the “least intrusive” analysis engaged in by the lower appeal court. It has sometimes been used as a basis for concluding that a decision to conduct surveillance is unreasonable in the circumstances. However, as the Supreme Court cautioned, this approach doesn’t properly address the issue of reasonableness.
2. The extent of a legitimate expectation of privacy is relevant to assessing whether the search was too intrusive.
Although the Supreme Court expressly declined to decide whether the officer had a legitimate expectation of privacy with respect to the text messages, it said that if there was a legitimate expectation of privacy, it would be limited. This lessened the risk that the review of text messages would be unduly intrusive. The Court held that “the fact that the search did reveal intimate details of his life did not make it unreasonable.” Under the circumstances a reasonable employer wouldn’t expect that such a search would intrude on such intimate matters.
In a number of cases, Canadian arbitrators applying the “reasonableness” approach haven’t engaged in a full analysis regarding the extent of an employee’s legitimate expectation of privacy. As the Supreme Court has noted, the employee’s legitimate expectations are relevant throughout the analysis.
The potential impact of the Quon decision isn’t limited to unionized employers. Several Canadian jurisdictions have enacted legislation governing the collection, use, and disclosure of employees’ personal information by employers in the last decade. The concept of “reasonableness” plays a prominent role throughout such legislation, and it’s expected that the Quon decision will contribute to the continued development of an appropriate and reasonable balance between employer and employee interests.