CHAPTER 10

Privacy Inside and Outside the Workplace

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Learning Outcomes
After completing this chapter, you will be able
to:
• Understand the growing need for protection for
personal information and other privacy rights.
• Identify the ten principles behind PIPEDA.
• Describe the potential impact of Bill C-27—the
Digital Charter Implementation Act, 2022.
• Understand the requirements of Ontario’s
Personal Health Information Protection Act.
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Learning Outcomes (cont.)

• Understand how federal privacy legislation affects
provincially regulated employers in Ontario.
• State the obligations of employers in handling
employees’ personal information where privacy
legislation applies.
• Understand employee privacy rights in
workplaces not covered by general privacy
legislation, including an employer’s ability to
legally monitor computers and other devices that
are used for personal, as well as work-related,
purposes.
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Learning Outcomes (cont.)

• Evaluate issues around electronic monitoring in
the remote/hybrid workplace.

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Introduction
• Privacy legislation is a developing area of law.
• The privacy rights that an employee has depend
on factors including:
• whether the workplace is federally or provincially
regulated;
• if provincially regulated, whether the province
has broad-based privacy legislation;
• whether the employee works in the public or
private sector; and
• whether the employee is unionized or non-union.
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Personal Information Protection and

Electronic Documents Act
• Key features of the federal PIPEDA:
• It balances individual privacy rights with an
organization’s need to collect, use, and disclose
personal information.
• It applies to all organizations that collect, use, or
disclose personal information in the course of
commercial activities.
• As federal legislation, PIPEDA does not apply to
personal employee information in provincially
regulated workplaces.
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Personal Information Protection

and Electronic Documents Act
(cont.)
• The term “personal information” is broadly
defined as information about “an identifiable
individual.”
• PIPEDA generally requires consent before an
individual’s information is collected, used, or
disclosed.
• Organizations must safeguard personal
information in their possession.
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Personal Information Protection

and Electronic Documents Act
(cont.)
• For the most part, individuals have a right to gain
access to their personal information.
• The Office of the Privacy Commissioner handles
complaints related to PIPEDA.

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Personal Information Protection and

Electronic Documents Act (cont.)
• Personal information—any factual or subjective
information about an identifiable individual,
including:
• Age, home address, and identification numbers.
• Residential telephone numbers and personal
email address.
• Sex, religion, race, colour, ethnicity, social status,
age, marital status, education, and employment
history.
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Personal Information Protection and

Electronic Documents Act (cont.)
• Employee files, performance appraisals,
disciplinary actions, and evaluations.
• Photographs, opinions, and income.
• Relevant dates, such as birth date.
• Credit records, loan records, and purchasing and
spending habits.
• Blood type, fingerprints, genetic information, and
medical records.

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Personal Information Protection

and Electronic Documents Act
(cont.)
• Intentions (e.g., to purchase goods or services or
to change jobs).

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Personal Information Protection

and Electronic Documents Act
(cont.)
• Schedule 1 of PIPEDA sets out ten fair
information principles.
• An organization may collect, use, or disclose
personal information only for purposes that a
reasonable person would consider appropriate in
the circumstances.
• Applies even where consent has been given.

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Personal Information Protection

and Electronic Documents Act
(cont.)
• The privacy commissioner has broad powers to
investigate complaints and may apply to the
Federal Court for an order of compliance or for
damages.
• Fines can reach a maximum of $100,000.

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Privacy Rights in Private Sector

Workplaces in Ontario
• Private sector employers are not required to follow
PIPEDA’s principles in handling non-health-related
personal employee information.
• In landmark decision in Jones v Tsige, the Ontario
Court of Appeal recognized the tort of “intrusion
upon seclusion.”
• To receive damages for the tort of “intrusion upon
seclusion,” a plaintiff must prove three elements:
• the defendant’s conduct must be intentional
(including reckless conduct);
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Privacy Rights in Private Sector

Workplaces in Ontario (cont.)
• the defendant must have invaded, without lawful
justification, the plaintiff’s private affairs or
concerns; and
• a reasonable person would regard the invasion
as highly offensive, causing distress, humiliation,
or anguish.
• After the Jones decision, employers should ensure
that their privacy policies are clear,
comprehensive, and consistently enforced, and
reduce employee expectations of privacy.
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Privacy Rights in Private Sector

Workplaces in Ontario (cont.)
• Labour arbitrators have recognized a right to
workplace privacy in unionized workplaces in
Ontario.
• Collective agreements may restrict forms of
employee monitoring.
• In non-unionized workplaces, when employee
monitoring takes a particularly intrusive form,
courts may be willing to provide a common law
remedy.

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Privacy Rights in Private Sector

Workplaces in Ontario (cont.)
• Covert video surveillance may constitute
constructive dismissal.
• Employees who are allowed to use employer
property for personal purposes may have a
reasonable expectation of privacy.
• This expectation may be displaced by a clear
policy stating otherwise.
• IT policies must be clearly communicated and
consistently enforced, as well as periodically
reviewed.
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