A month ago, we reported on the Ontario Court of Appeal’s surprising decision in R. v. Cole. In that decision the Court of Appeal said that a high school teacher was protected against searches on his work computer by the police absent a search warrant. The Court of Appeal based its decision on the Canadian Charter of Rights and Freedoms. Recently, an arbitrator in Quebec also considered an employee’s Charter rights, this time the Quebec Charter of Human Rights and Freedoms. It said that Laval University violated an employee’s Quebec Charter of Human Rights and Freedoms when it reviewed an email sent by the employee — on the university’s systems — to the union.
At issue was a brief exchange of emails on January 16, 2007:
- At 8:46 a.m., the employee’s supervisor sent her an email announcing a reallocation of tasks within the group.
- Six minutes later, feeling that the reallocation violated the collective agreement, the employee forwarded the email to the union’s president, with the text “For your information.”
- Upon receipt, the union president reviewed the email and concluded that the reallocation violated the collective agreement. The union president called the supervisor and requested that the reallocation be revised.
Wondering how the union president found out about the reallocation before she had even spoken to human resources, the supervisor requested that the computer servers be reviewed to identify who leaked the information to the union. Upon review, the employee’s identity was revealed.
The supervisor did nothing with this information until two days later, when the employee quit her job. Before the employee left, the supervisor went into her office and expressed her disappointment that she had forwarded the email. The employee told the union president, who brought it to the attention of human resources.
Upon learning of the situation, human resources realized that the supervisor, in directing the review of the servers, had violated the university’s own policy. Nothing, however, was done to fix the situation. New procedures were drafted, but they weren’t adopted.
The union filed a grievance — requesting punitive damages for breach of privacy rights protected by the Quebec Charter of Human Rights and Freedoms. In that context, punitive damages may be requested when there is, “unlawful interference with any right or freedom recognized by the Charter” to dissuade such behavior.
Although the union’s freedom of association was raised, the arbitrator was more concerned with the employee’s right to privacy. The arbitrator decided that the university had willfully violated the employee’s privacy rights and ordered it to pay punitive damages. Although the arbitrator didn’t fix the amount of punitive damages, he said the amount had to correspond to the union’s costs of the arbitration. In addition, the university was ordered to adopt corrective procedures no later than September 1, 2011, to avoid any future breach of privacy.
In making his decision, the arbitrator recognized that the expectation of privacy is limited in the workplace and that an employer has a right to consult its employees’ emails in certain circumstances. But he put limitations on that right in Quebec, saying an employer can only do so when:
- the employer is pursuing a legitimate and important objective;
- the consultation of emails is related to the objective pursued; and
- there is no other way to achieve the objective.
Further, he accepted that there is a legitimate expectation of privacy between a unionized employee and its union — even if the email was sent through the employer’s servers.
But what really hurt the university in this case was its own policy. Its own policy recognized only three circumstances in which employees’ email could be reviewed:
- when there are serious reasons to believe that there is a violation of laws, policies, or university bylaws, and only after a committee has reviewed the case;
- when the user may not be reached, the information in the emails is needed, and the head of department requests it; or
- when police conduct an investigation.
The arbitrator concluded that none of those circumstances were met in this case.
Lessons for employers
As this decision relied on the Quebec Charter of Human Rights and Freedoms, it should not be alarming for employers in the rest of Canada. But, like the lesson from R. v. Cole, it stresses to all employers across Canada the importance of well-written computer use policies. But having a well-written computer use policy doesn’t solve all of the equation. The policy must also be applied. Otherwise it may be worth nothing — and may lead to more problems.