Privacy Law & Computer Investigations

Privacy Law & Computer Investigations Bettina Burgess Ross Wells

Computer Surveillance • Types Available: • Spyware: enables employers to view computer activities from a separate website, including laptops in another country • Keystroke monitoring: records keystrokes and prints out report showing e-mails, files transferred, documents printed, and applications run • Cyber spying: Internet searches and logging onto the employee’s social networking sites

Computer Surveillance

Legislation • Personal Information Protection and Electronic Documents Act (“PIPEDA”) • Only applies to federally regulated employers • No similar legislation in Ontario yet for provincially regulated employers • Municipal Freedom of Information and Protection of Privacy Act • provides an exclusion for records relating to employment

PIPEDA “Personal Information” is broadly defined, as information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization This definition is being amended, and when passed will no longer exclude “the name, title or business address or telephone number of an employee of an organization”

PIPEDA The new amendments to PIPEDA provide that the collection, use and/or disclosure of the employee’s personal information without the employee’s knowledge or consent may be permitted if such information was produced to the employer by the employee in the course of employment and the collection, use and/or disclosure of the personal information is consistent with the purpose for which it was produced by the employee

PIPEDA Under the new amendments, employers will also be permitted to collect, use, and/or disclose the personal information of their employees without consent if the collection, use or disclosure is necessary to establish, manage or terminate an employment relationship The employer must first inform the employee that the personal information will be or may be collected, used or disclosed for those purposes.

PIPEDA Presently, employers may collect and use the personal information of employees without consent of the employee if there are reasonable grounds to believe that the personal information may be useful in an investigation of the violation of an agreement or any laws in Canada. This does not provide an unfettered right of employers to collect and use information obtained from computer monitoring.

Common Law Privacy Rights • Common Law: • Until recently, it was generally understood that there was no right to privacy at common law and no tort of invasion of privacy • Two 2011 decisions have changed the landscape: • R v. Cole • Jones v. Tsige

R. v. Cole: Employees May Have a Reasonable Expectation of Privacy An employee may have a reasonable expectation of privacy when it comes to computer use at work, even where such use is viewing porn on the employer’s computers Qualification: This case dealt with Charter rights that are not triggered in the private sector Points to be taken from R. v. Cole: implement very clear policies

Jones v. Tsige Tort of Intrusion of Seclusion Prior to Jones v. Tsige: No court would definitively rule that there was no tort of invasion of privacy, but conversely, no appellate court would find that there was one. Superior Court of Justice, 2010: There is no free standing right to privacy of common law. This is an area of law that should be developed by statute. Court of Appeal, 2011: There is a tort of intrusion of seclusion giving rise to common law protection of privacy rights.

Test for Intrusion of Seclusion • The defendant’s conduct must be intentional or reckless • The defendant must have invaded without lawful justifications the plaintiff’s private affairs or concerns • A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish • Proof of harm is presumed – no need to prove economic loss

Computer Monitoring Inappropriate E-mails Jessica had been employed by ABC Co. for three years. She was a bit of trouble maker and did not get along well with her co-workers. One co-worker complained that Jessica was spreading rumours about her having an affair with another employee. The employer had policies prohibiting personal use of the company computer. The employer decided to start surreptitiously monitoring Jessica’s e-mails and found that she frequently e-mailed her friends, family and boyfriend in which she would say extremely derogatory things about her company and co-workers, and also make violent references, such as, “I am going to go postal” and “I want to bring a gun to work and shoot everyone.” On the basis of these e-mails, ABC Co. terminated Jessica’s employment for cause. Jessica grieved the termination. Who was successful – Jessica or ABC Co.?

Computer Monitoring Inappropriate E-mails Answer: Jessica • Employees may expect some degree of privacy when it comes to personal e-mail communications, but there should never be any expectation of absolute privacy by virtue of the very nature of e-mail – you never know where it will end up • Before resorting to surreptitious monitoring and termination of employment, the employer must first confront the employee and demand that the employee stop the conduct

Computer Monitoring Inappropriate E-mails If the employer is going to use monitoring, it should notify the employee The employee was reinstated

Computer Monitoring Time Theft and Viewing Porn Andrew was employed with ABC Co. for 27 years in a senior role. Through the IT department’s usual bandwidth scan, they determined that Andrew was spending an inordinate amount of time on the Internet. Upon further investigation, it was discovered that Andrew would spend between 50% to 100% of his working day viewing various Internet sites, including porn sites, had downloaded over 300 sexually explicit images, and had emailed several of them to his home computer. ABC Co. terminated Andrew’s employment citing time theft and violation of the company’s computer use policies in viewing porn while at work. Was Andrew’s termination upheld?

Computer Monitoring Time Theft and Viewing Porn Answer: No. Andrew was reinstated. Inordinate use of computer systems for personal use in not tantamount to time theft. Time theft is reserved for cases where employee’s falsify time records. Although viewing porn during working hours, and spending inordinate amounts of time on the Internet were clear violations of many of the companies policies, termination of employment was too harsh given his years of service and otherwise good working record.

Best Practices • Establish policies setting out: • No expectation of privacy – passwords do not equal private • Types of monitoring that may be engaged • The purpose for which monitoring may take place: maintain integrity of systems, investigation of employee misconduct • Information collected: whatever the employee has viewed, created or downloaded • Where information will be stored • Who will have access to the information • When and how it will be destroyed • Company owns the data, even if personal to the employee • Acceptable and unacceptable personal use • Consequences for violating the policy • Make the policies known to the employee – simply posting policies on the company’s internet is not sufficient • Consistently enforce the policies or they become meaningless

Best Practices Determine an appropriate goal or purpose before monitoring employee computer use Consider all less privacy-intrusive alternatives and document alternatives considered, and reasons for rejecting them Where appropriate, inform employees prior to implementing surveillance Obtain consent where appropriate – policy acknowledgment ideal

Best Practices Capture as little information as possible Limit access to senior executives/management on a need to know basis only Ensure secure storage Destroy information as soon as it is no longer needed Stay on top of the law – privacy law is continually changing

Ross Wells Tel: 519-575-7513 Email: ross.wells@gowlings.com Bettina Burgess Tel: 519-569-4557 Email: bettina.burgess@gowlings.com

Employment and Labour Law: Investigating Workplace Accidents John Illingworth Jordan Smith

Overview – Legal Procedures Triggered by a Workplace Accident • WSIB Implications • MOL Inspection • Power and Authority of the Inspector • Prosecutions • Appealing an Inspector’s Order • Preparing an Internal Investigation Report

Workplace Accident – WSIB Implications • Workplace Safety and Insurance Act: • s. 21: “An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages” • Fine for failure to comply • Form 7: opportunity to note any objections to Workers Claim

Workplace Accidents – WSIB Implications • WSIA Defines “accidents” as: • a wilful and intentional act, not being the act of the worker, • a chance event occasioned by a physical or natural cause, and • disablement arising out of and in the course of employment • “A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work related.” (WSIB Operation Policy Manual Doc. No. 15-02-02)

WSIB – Cost Transfer • Cost Transfer – was the accident caused in part by the negligence of another employer? (i.e. a subcontractor) • s. 84: “If the WSIB finds that an accident or disease to a Schedule 1 worker was caused by the negligence of another Schedule 1 worker or employer, the WSIB may charge all or part of the claim costs to the negligent employer’s cost record.”

MOL Involvement – What to do When the Inspector Arrives

MOL Inspectors • OHS Inspectors may enter the workplace at any time, with few exceptions, however, they are most likely to enter because: • A worker has filed a complaint with the MOL regarding working conditions; • The MOL has received an injury or incident report from the employer; or • The OHS Inspector is conducting a random inspection.

MOL Inspector Field Visits • 2009/2010 • Construction: 30,604 • Industrial: 48,304 • Mining: 3,884 • Other sectors: 5,800 “The 2009-10 enforcement data reflects a decrease in field activity due to health and safety inspector vacancies. The Ministry undertook a significant recruitment process with the hiring of 42 new inspectors during the year.” (source: MOL website)

MOL Prosecutions • 2008/2009 • 1,303 Convictions for violations of the Occupational Health and Safety Act • $14,136,060 in fines imposed • $9,892 Stop Work Orders issued (Source MOL website)

Lost Time • 557 fatalities registered; an average of 10.7 workers per week • 80,863 accepted lost time claims (Schedule 1&2) • 172,122 accepted no lost time claims (Schedule 1&2) • The average duration of Wage Loss Benefits was 14 days (Source WSIB Statistical Supplement 2006)

MOL Inspectors Obstruction of an OHS Officer • Offence under the OHSA and Criminal Code • Blocking or restricting access to a work site • Failing to provide copies of records or documents requested by an OHS Officer • Refusing to provide or providing false information or a false statement • Encouraging others to provide a false statement • Disturbing the scene of an accident, except when authorized • Interfering with the execution of a search warrant or the service of an order

Can Others Participate in the Investigation when the MOL Inspector arrives at worksite? Other parties to Assist with Inspections • Constructor/employer shall afford a worker committee member, HSR or worker selected by trade union/other workers the opportunity to accompany an inspector • Employer should request but has no legal right to accompany inspector

What Powers does an Inspector have when entering a worksite? Powers of Inspection – Section 54 OHSA • Take up or use machinery, materials, biological, chemical or physical agents • Conduct or require employer to conduct health and safety testing • Require production of drawings, specifications, licences, documents and reports, and to inspect, examine, copy and remove same • Be accompanied and assisted by persons with professional knowledge • Take photographs and video

What Powers does an Inspector have when entering a worksite? Make inquiries of any person separate and apart from another person Require equipment or machinery to be tested by professional engineer Require report bearing seal of professional engineer regarding safety of equipment, machinery, and facilities Require report regarding evaluation conducted by personnel with professional knowledge of biological, chemical, or physical agents Require production of training materials for workers or supervisors

When does an inspection become an investigation? • R. v. Jarvis, [2002] 3 S.C.R. 757 • Important to recognize the distinction between an “Inspection” and an “Investigation”; the latter triggers the adversarial relationship with the state and affords certain protections and rights under the Canadian Charter of Rights and Freedoms • Powers available to officers conducting inspections must be relinquished once the predominant purpose of a particular inquiry is to determine penal liability

What Rights do Individuals and Corporations have during an Investigation? • Rights under the Charter of Rights and Freedoms for persons under Investigation: • Right to retain and instruct legal counsel • Freedom from unreasonable search and seizure • Freedom from unlawful detention • Right of an individual suspect to remain silent

When must an OHS Inspector caution an individual about the right to counsel? • Subsection 10(b) of the Charter of Rights and Freedoms: • “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right” • Designed to cover the situation of initial arrest or detention • Right is engaged to prior to actual laying of charges • Imposes duty on investigators to cease questions until accused has fair opportunity to exercise the right

When must an OHS Inspector caution an individual about the right to counsel? • R. v. Therens, [1985] 1 S.C.R. 613 • Section 10 rights under the Charter are engaged not only on arrest, but on “detention”, which includes any restraint of liberty other than arrest where a person may reasonably require legal counsel • A “detention” extends beyond physical restraint to situations where an agent of the state assumes control over a person’s movement by some command that may have a significant legal consequence but prevents the person from seeking legal assitance

Does a Supervisor have the right to remain silent? Request for Statement • If requested to provide a statement, failure to provide the statement can constitute an offence • Identify whether the MOL intends on laying charges against the employer or any individual • If asked to provide a written statement, ask to contact legal counsel prior to providing statement • Ask to have counsel present during the statement • Do not waive any rights under the Charter

Does a Supervisor have the right to remain silent? Request for Statement • Do not answer or speak for others, if you do not know the answers, say so • Listen to the question and do not answer questions that you do not understand • Ask for clarification • Answer the question asked do not provide additional information or expand into other topics • Tell the truth

Does a supervisor have the right to remain silent? Request for Statement • Ask for a copy of any written statement given to the OHS Officer • After statement has been provided, immediately make notes in relation to the interview • When and at what location did it occur, seating arrangements, questions asked and answers provided, comments and statements made by the OHS Officer about the accident and the investigation, tone and demeanor of the OHS Officer and questions asked • Send a copy of the statement and your notes in relation to it to senior management and counsel • Statement is admissible as evidence

When does an inspector Require a Warrant to enter your Workplace? • Where the predominant purpose of a particular inquiry is the determination of penal liability • When the inquiry in question engages the adversarial relationship between the person under investigation and the state • OHS Officer is gathering evidence for the purpose of determining whether to recommend a prosecution • Primary focus is no longer the protection of workers either at the worksite being inspected or workers in the industry

Appealing an Inspector’s Order Employers, constructors, licensees, owners, workers and trade unions may all have a right to appeal. An appeal must be filed within 30 calendar days of the date of the Order was issued Appeals are made to the Ontario Labour Relations Board (OLRB) OLRB has legal procedures for handling appeal of orders Need to apply to suspend Order pending appeal Mediation with labour relations officer available through OLRB Legal counsel recommended to address appeal

Appealing an Inspector’s Order OLRB is empowered to provide the following remedies on appeal of an Order: • Substitute findings • Rescind order • Affirm order • Make new order

Appealing an Inspector’s Order Proper preparation for Inspector’s attendance can assist in the event of Orders are later appealed: • Ensure all managers and supervisors understand the implication of OHS Inspector’s Orders and the right to appeal • Ensure a written procedure has been developed and communicated to all managers and supervisors outlining the organization’s policy and steps to follow upon attendance and the receipt of an Order

Appealing an Inspector’s Order Steps Following the Attendance of the OHS Inspector • Verify whether any Orders were issued; • Obtain the Orders in writing before the Inspector leaves the premises; • Review the written Orders for completion and accuracy; • Post the Orders in a conspicuous location where it is likely to come to the attention of workers;

Appealing an Inspector’s Order • Ensure that a copy of the Orders are provided to senior management; • Review the orders with senior management and legal counsel; • Confirm whether there are grounds/reasons to appeal: • Order as written lacks legal basis • ie. Against wrong party or without evidentiary basis • Compliance Order is difficult or impossible • ie. Budgetary or project time line • Pre-emptive responses to possibility of OHS or Criminal Code Charges

Appealing an Inspector’s Order Confirm whether an application for suspension of the Orders are necessary. If they are, have legal counsel prepare applications to the OLRB immediately; Determine compliance strategy; Gather all evidence in support of the grounds to appeal; Ensure a copy of the Notice of Appeal is posted in the workplace with the Orders; and Provide a copy of the Notice of Appeal is provided to the JHSC or HSR and senior management

Appealing an Inspector’s Order Failure to Appeal an Order may result in an: • increased likelihood of charges being laid • inability to complain at a later time • adverse inference at trial

Privacy Law & Computer Investigations