cover feature
COLLECTING EMPLOYEE DATA:
WITH GREAT INFORMATION
COMES GREAT RESPONSIBILITY
By Melissa Campeau
In 2008, Colleen Colwell discovered a camera hidden in the ceiling of her
private office at Cornerstone Properties Inc. in London, Ont. Her boss
claimed he installed it because he suspected maintenance staff of theft.
Colwell sued the company – and won, but not on the grounds you might
think.
The judge noted that Colwell didn’t have a legal right to expect privacy
in the workplace (a more recent ruling on another case took a different
stand, however), so her boss hadn’t done anything illegal by installing a
camera. However, the judge noted that employees could reasonably ex-pect
their employers to treat them in good faith. The secret camera,
placed without consent or a particularly good reason, contributed to
a poisoned workplace, so the court awarded Colwell damages for con-structive
dismissal.
While placing a hidden camera in an employee’s office is extreme,
the case illustrates just how much there is to know about privacy law in
Canada. And there are also some serious consequences for organizations
that don’t do their homework.
THE RULE OF MANY LAWS
Since the 2008 Colwell case, the privacy landscape in Canada has evolved. What an
employer can and can’t do with respect to employee surveillance depends, at least in
part, on what kind of business you’re in and where you’re located. Many employers
are subject to specific privacy laws that regulate and restrict how and if employers
deal with their employees’ personal information, but in Canada, there’s no one pri-vacy
law that applies to every organization. Instead, there’s a complex network of
regulations.
Federal government institutions are subject to the Privacy Act. Nationally,
there’s the Personal Information Protection and Electronic Documents Act
(PIPEDA), which applies to federally regulated private sector businesses,
except in Alberta, B.C. and Quebec, where substantially similar provincial pri-vacy
laws apply instead. Ontario, New Brunswick and Newfoundland and
Labrador each have provincial privacy legislation that applies to health care
information. And then there are all the businesses that don’t fall under any
of those umbrellas.
“In the gap space, we’re in an interesting environment because that’s
where other legislation might fall into play, such as Human Rights legis-lation
and the common law and case law,” said Patrizia Piccolo, partner
at Rubin Thomlinson LLP in Toronto. “The Criminal Code of Canada
can become an important element as well, when dealing with such pri-vacy-
related offences as intercepting a private communication without
consent.
HRPATODAY.CA ❚ SEPTEMBER 2014 ❚ 19