National Post (Latest Edition)



- HOWARD LEVITT Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

It should not have taken a pandemic to realize how much we rely upon technology, although we intuitivel­y understood that.

The amount of technology devices we rely upon is, in many respects, not good for us. We reflexivel­y pick up our phone with every jingle or buzz. It sometimes seems that our smartphone­s know more about what we are thinking than we do ourselves. We utter a mere thought and our phone has an advertisem­ent turning that thought into reality.

It’s no surprise that, while privacy has always been a concern, it became a greater one once Canadians were sent home to work in the midst of the pandemic. With many employees being told that they will not see the inside of their offices until 2021, a prevalent question is: what are my privacy rights when it comes to working at home?

The thought of your phone listening to you seems unhinged. It will alarm the Canadian public to know that their employer may be listening or even watching them at any hour of the day, too.

It is somewhat routine for various organizati­ons to monitor their employees’ customer calls but some of these organizati­ons have now taken up monitoring their employee’s screens.

The software, referred to as tattleware, is being downloaded on personal computers to allow employers to track employees’ mouse movements. This means your employer can observe your interactio­ns with clients or what you are searching for on the internet while on the clock. Some versions of this software actually allow employers to download videos of their employee’s screens.

It may surprise you to know that this is completely legal. But there is a catch, or rather, a balance.

An employee must be aware of how their informatio­n is being used and collected and it must be balanced with the employer’s justificat­ion. For example, if it’s being used to properly manage the organizati­on’s operations, your employer can do so. If your manager is wondering what you have on your desktop for pure entertainm­ent, then that would be offside to a court.

At the end of the day, the employer has a right to ensure that employees are doing what they are paid to do. Otherwise, employers should refrain from randomly checking in on their employees unless it’s tied to a reasonable justificat­ion related to work productivi­ty or operations.

At this point, there is no case law on the topic of tracking software specifical­ly, but there are general privacy laws.

Canada’s main statute governing privacy is the Personal Informatio­n Protection and Electronic Documents Act ( PIPEDA). The act applies to private- sector organizati­ons across Canada, except provinces that have enacted their own privacy legislatio­n such as British Columbia, Quebec and Alberta, regarding the collection, use or disclosure of personal informatio­n in the course of a commercial activity. In those provinces that have their own legislatio­n, PIPEDA will still continue to apply to federal bodies, such as telecommun­ications and banking sectors.

The law defines a commercial activity as: “any particular transactio­n, act, or conduct, or any regular course of conduct.”

An employee covered by PIPEDA, who believes their personal informatio­n has been mishandled can file a complaint with the Office of the Privacy Commission­er of Canada ( OPC). Once a complaint is filed, an investigat­ion will take place. One of the remedies that can be rendered is a compliance agreement, which is enforceabl­e by the Federal Court, in which the employer will commit to implementi­ng certain measures to resolve the original dispute.

Specifical­ly, section 16 of PIPEDA allows a court to award damages. In one of the first cases, Randall v. Nubodys Fitness Centre, the court confirmed that there is a very high bar for the award of damages under this section and it is only to be used for the most “egregious situations”. In this case, the Fitness Centre disclosed Randall’s frequency of gym attendance to his employer, without the necessary consent.

In the alternativ­e, an employee may bring a suit under the tort of “inclusion upon seclusion”. The leading case is Jones v. Tsige from Ontario’s Court of Appeal. In order to prove this tort, there must be conduct that was intentiona­l or reckless, a defendant who invaded, without lawful justificat­ion, the plaintiff ’s affairs, and lastly, that a reasonable person would regard the invasion as highly offensive causing distress, humiliatio­n, or anguish. In this case, which involved an extraordin­ary outrageous privacy breach, the plaintiff was still awarded damages of only $10,000.

But before filing a complaint or getting a court involved, there are steps both employees and employers can take. Employees should ask questions as to what kind of personal informatio­n is being collected and why. Employers should be advising their employees of the mechanisms they use for monitoring, their reasoning, and finally the consent of their employees. If employers do not advise their employees, they may be hit with a complaint that can lead to damages.

Employees should not be too keen on bringing matters of this nature to court. Aside from extensive legal fees, the employee is jeopardizi­ng their position in a COVID-19 economy. You may be angered that your employer has been monitoring you, but surely, you would rather be monitored then have no job at all. That is the modern, arguably ugly truth.

Financial Post

Got a question about employment law during COVID-19?

Write to me at levitt@ levittllp. com.

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 ?? GETTY IMAGES / ISTOCKPHOT­O ?? Some employers monitor their employee’s screens.
GETTY IMAGES / ISTOCKPHOT­O Some employers monitor their employee’s screens.
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