Supreme Court defines expectation of privacy

Employer ownership of technology ‘diminishes’ but doesn’t eliminate privacy of employee information
By Rich Appiah
|Canadian Employment Law Today|Last Updated: 11/14/2012

The Supreme Court of Canada has found employees should expect some level of privacy when it comes to personal information on workplace technology, but that expectation is tempered somewhat if the employer owns the equipment.

Richard Cole was a high school teacher criminally charged with possession of child pornography — among other things — after photographs of a nude underage female student were discovered on his work laptop. Cole had been provided with the laptop and held domain administration rights as a supervisor of a laptop program for students. He had access to the networked hard drives of the students’ laptops, and thereby came into possession of the photos.

The school board’s Policy and Procedures Manual governed Cole’s laptop use. The manual permitted personal use of the computer, but prohibited the storage of sexually explicit material. The manual further deemed “all data and messages generated on or handled by board equipment” to be the property of the school board. Evidence further suggested that the school’s acceptable use policy, warning students not to expect privacy in respect of files placed on their laptops, also applied to teachers. In fact, the school principal had advised staff at several meetings that whatever rules applied to students also applied to staff. The manual did not, however, provide for the search of computers, nor did it address the issue of privacy except to state that administrators could open private email to address the network’s health or if inappropriate use was suspected. When such action was required, the manual stated that the user’s permission would first be sought. Cole’s laptop was protected by his password.