National Post

Elevator cases reveal ups and downs of privacy

- Drew Hasselback

What’s the deal with elevator repair companies? They’ve attracted a lot of attention from british columbia’s privacy commission­er over the past 12 months. The commission­er’s office has issued three decisions that examine the way elevator repair companies use GPS to monitor their vehicle fleets. The leading case, Schindler elevator corp., was released in december 2012. Then last August, the office issued two follow-up cases that apply the framework set out in Schindler: ThyssenKru­pp elevator canada Ltd. and Kone corp.

companies collect these data to keep tabs on where their vehicles are and when they might need maintenanc­e. but the system has the secondary effect of collecting a lot of private informatio­n about the workers, who keep the fleet vehicles at home and travel directly to job sites. Tracking the vehicles is a way for the employer to confirm workers are on the job during supposed work hours.

The three b.c. cases have attracted the attention of privacy lawyers across the country. I heard a lot of lawyers commend them last month in Ottawa at the canadian bar Associatio­n’s fourth annual symposium on access to informatio­n and privacy. Lawyers believe that in the Schindler case, b.c.’s informatio­n and privacy commission­er, elizabeth denham, has struck an important balance between individual privacy rights and a company’s right to manage its workforce and property.

Ms. denham concluded that it’s OK for companies to collect the data, but with two important limits. First, companies must inform employees about the tracking before it starts. And second, companies must focus the data collection so it serves a specific purpose; they can’t simply track every movement all the time.

“Schindler’s purposes are, as the complainan­ts acknow-

Legitimate, reasonable, business purposes

ledge, to manage employee performanc­e — to manage productivi­ty, manage hours of work, and ensure they drive safely and lawfully,” she writes. “These are legitimate, reasonable, business purposes.”

The elevator cases involve the interpreta­tion of b.c.’s privacy statute, which has specific provisions that allow companies to collect personal informatio­n for the purposes of managing employer-employee relationsh­ips. While the b.c. elevator cases may not apply in other jurisdicti­ons that lack similar statutory language, privacy lawyers across the country are using them to help define that fuzzy line between reasonable monitoring and creepy snooping.

“While these cases specifical­ly interpret british columbia’s privacy legislatio­n, the underlying theme in Schindler, ThyssenKru­pp and Kone suggests that GPS monitoring to establish where an employee is during working hours, and how much time they are spending on a job, is akin to in-person supervisio­n and more practical where the employer has multiple remote employees,” writes Michelle Mccann, a lawyer with Stewart McKelvey in Halifax.

“employers using GPS and other electronic monitoring equipment should be careful to ensure that the informatio­n being captured relates only to the employment relationsh­ip and does not inadverten­tly capture more private informatio­n about employees such as locations visited on personal time,” writes deanna brummitt, a lawyer in the Vancouver office of davis LLP.

back to my original question: What’s the deal with elevator companies? There’s actually a banal answer. In all three cases, the b.c. office was responding to complaints filed by members of the Internatio­nal Union of elevator constructo­rs, Local 82.

The union members scored some important points. The commission­er adopted a fairly broad definition of personal informatio­n, something that will extend the reach of b.c.’s privacy law. And in the two follow-up cases, the privacy office ordered elevator companies to change some policies to ease up on the monitoring.

The pursuit of balance is of crucial importance as technology develops. It doesn’t take much to recognize that these cases have broader implicatio­ns beyond elevator repair companies.

“These orders will be of interest to any employer who monitors or proposes to use technology to monitor a mobile workforce,” writes Summer Lane, a lawyer in the Vancouver office of borden Ladner Gervais LLP.

 ?? FOTOLIA ?? B.C. elevator companies that track employees via GPS have had their monitoring curtailed.
FOTOLIA B.C. elevator companies that track employees via GPS have had their monitoring curtailed.
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