It is common practice for employers to require some personal information from employees in order to employ them, for instance: phone numbers, home address, Social Insurance Number, bank account information, emergency contact info etc. Most people do not think twice before giving away this information but your employer may also have the ability to access or have come into contact with other personal information throughout your time with them.
Some common sources of information may be through employee internet usage and social networking sites, health information via requests for accommodation, business cell phones also used for personal use, or through security camera footage. When an issue of privacy arises in the workplace (can an employer search its employees, monitor its employees or conduct drug and alcohol tests?), the law protecting this information is complex and can be unclear.
What is Privacy?
Privacy is the right to control the collection, use and disclosure of personal information. Personal information is anything that can be easily connected to an identifiable individual. Examples of personal information include, but are not limited to, images, voice recordings, internet activity, employment history, medical and financial records, religion or personal beliefs. Information may be collected in several ways such as electronically, written, or expressed orally.
Privacy Governance in Ontario
Federal legislation provides some protection, for instance, the Protection and Electronic Documents Act, S.C. 2000, c.5, which governs the collection, use and disclosure of personal information and applies to information gathered in commercial business. It is applicable to both federally and provincially regulated employers, though is not specific to privacy in the workplace. There is also the Privacy Act, RSC 1985, c P-21 which applies to employee personal information for federal government institutions.
In Ontario, there is no provincial legislation protecting employee’s privacy rights, with the exception of the Personal Health Information Protections Act, 2004, S.O.2004 c. 3 for workplaces that deal with private health information. The Freedom of Information and Protection of Privacy Act may also offer some protection as personal information (such as security footage) can only be collected for an authorized purpose and the subject of the video must be pre-notified. Other provincially regulated businesses may be subject to a collective agreement or the common law.
While the law may be unclear employers should still be vigilant with employee’s personal information and be aware of the privacy laws which govern their businesses.
Common Law on Privacy
In Ontario, individuals may seek remedies through courts. The Court of Appeal in the leading case of Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A) recognized the tort “intrusion upon seclusion” where a plaintiff must show:
- An unauthorized intrusion;
- The intrusion was highly offensive to a reasonable person;
- The matter intruded upon was private; and
- The intrusion caused anguish and suffering
Privacy torts have allowed employees to receive damages for up to $50,000, or potentially more in cases where there are multiple plaintiffs in a class action.
As technology becomes more integrated into work and personal lives, so does the need for the protection of privacy. Thus, employers should ensure the proper treatment of personal information. Employers would also be wise to draft policies relating to sources of personal information like work computers cell phones, and ensure the policies are clear, apply equally to all and that all employees are aware of the policies.
Monkhouse Law practices workplace law and can help navigate these complex legal issues for both employers and employees. We are highly knowledgeable in both Canadian Employment Law and Ontario Employment Law.
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