SCC Confirms Risks Of Employee Privacy Are Real

In a widely anticipated decision on the issue of workplace privacy, the Supreme Court of Canada released reasons in R v Cole on October 19, 2012. The Supreme Court confirmed that, in circumstances where personal use is permitted or reasonably expected, employees can have a reasonable expectation of privacy in personal data stored on devices owned by their employer.¹

While the existence and scope of an employee's privacy expectation will depend on the "totality of the circumstances", including workplace policies, it is now abundantly clear that an employer's ownership of electronic systems and equipment will not be determinative. Nor will policies against personal use always govern when the actual customs and practices of the workplace depart from those policies.