R v Cole, Jones v Tsige: Clarifying the Implications in the Workplace April 16, 2013 Dan Michaluk These are

my speaking notes. They are not legal advice and should not be relied upon as legal advice. 1. What are the workplace implications of Jones v Tsige? -very significant in society, of limited practical impact on employers (a) Should have no effect on employers ability to ask for information and impose employment-related consequences for failing to answer an reasonable request -Complex Services case (February 22, 2013, Surdykowski) -Medical information case -Doesnt change the balance -Employers can ask, employees must consent if request is reasonable (b) Should have limited effect on employers ability to monitor, investigate and audit in the workplace -reasonable expectation of privacy + in circumstances that are highly offensive to the reasonable person -nervous about true fishing i.e., where there is no basis in fact to believe there is evidence of wrongdoing to be found -nervous about failing to follow policy e.g., where policy says that pulling e-mail will be authorized by VP or above and nobody thought to obtain authorization (c) May have a significant effect on an employers ability to conduct video surveillance outside of the workplace -quite significant -employers will be responsible for the actions of their PIs -no weddings and funerals! not whats going on in the living room!

-2(d) Reinforce employers control access to individual personal information by employees because it is clear that they will be personally liable for intentional intrusions. Questionable effect on employer liability. -intrusion is an intentional tort -the theory for vicarious employer liability will be appealing given data breach claims brought in negligence face a serious difficulty in meeting damages element (causation, compensability, remoteness all issues) -strict liability + moral damages is tempting -Bazely strong connection test wrong so connected with the employment that it can be said that the employer has introduced the risk of wrong -no precedent yet and highly debateable 2. What are the workplace implications of R v Cole? -creates an important basis for a claim but not a claim itself -puts employers in a good position to assert their management right (a) REP finding is a basis for an employee claim -very broad REP finding (hard to distinguish) -not likely a simple constraint on police -not likely a simple constraint on government employers -REP is a judicial construct that defines the scope of privacy interest that will be protected -judges will apply it -arbitrators will apply it (b) To what effect? Not answered. -very clearly, were not saying what this means for employers -Charter bound standard of reasonableness in any context is undefined -Others scope of management right is undefined

-3-note McNeice would have been a better factual basis for fighting the REP! (c) Quite good for employers though -affirms the school boards actions in obiter -minimal and very minimal not entirely eliminated -Cole chose to record his information there -Choice and convince will matter in weighing the competing interests -Therefore if you provide notice as an employer you should be okay 3. What should employers do in light of these cases? What should the privacyminded employee do? (a) (b) (c) Employer. More suspect in video surveillance retainers outside the workplace for non-union employees. Written terms of engagement for PIs. Employer. Clear express notice for right to access information. Surface five purposes from Cole factum. Highlight choice. Employee. Govern yourself accordingly. You may be personally liable for unauthorized intrusions! (Ripple effect on cause cases? See Steel v Coast Capital Savings Credit Union, 2013 BCSC 527) Employee. Continue to be circumspect about use of the employers network for sensitive personal dealings. Dont rely on Cole as an indication the employer wont see it. The headlines dont address the full story!

(d)