Insensitive Presentation to Employees ≠ Harassment or Discrimination

Concepts like "harassment" and "discrimination" have been the subject of a great deal of legal analysis and debate.  Ultimately, how these terms are defined is a matter of context.  Where parties to a collective agreement sign off on provisions that protect employees from harassment or discrimination on the basis of the grounds in the Human Rights Code or union membership and activity, it is only conduct that violates those protections that a labour arbitrator will punish.  In a recent case dealing with a presentation to employees that was widely described as "offensive", the Ontario Grievance Settlement Board had to decide whether the employer had crossed the line.

In Ontario Public Service Employees Union v. Ontario (Ministry of Transportation), 39 employees joined a grievance alleging that the employer had violated several provisions of the collective agreement and the Human Rights Code when a Regional Manager made a presentation to employees which they found deeply offensive.  The presentation, titled "New Year New Outlook" contained graphic imagery depicting poverty in the developing world. One slide contained an image of an impoverished child, with the caption:  "If you think your salary is low, how about her?"  Other slides seemed to trivialize "first-world problems" and asked employees to set "new expectations". At the time of the presentation, the parties were about to enter collective bargaining.  The union alleged that the images of poverty in the slide show were racist in their depiction of people of colour as deserving of pity.  Moreover, the union took the position that the slide show was condescending, suggested that staff were lazy and overpaid, and was intended to shame and discourage union members in their upcoming negotiations with management. The employer brought a motion to dismiss the grievances on the basis that the allegations, if proven, did not establish a violation of any provision of the collective agreement.  The grievors were not themselves members of any group protected by the Human Rights Code, and could not therefore rely on the non-discrimination provision of the agreement.  The employer also argued that the union had not provided any particulars of how the grievors' rights to participate in the union's activities had been impacted. 

The Grievance Settlement Board found that the grievances did not make out a prima facie case.  Assuming that the factual allegations were all true, there was nothing in the grievances that would establish a violation of the collective agreement or the statutes in questions.  Given that there were no particulars asserting that any of the grievors were identified with a protected ground, the union could not prove that the presentation amounted to harassment, discrimination or created a "poisoned work environment" for anyone identified with a particular racial group.  As the Board concluded at para. 37:

In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.

The Board further found that the union had not alleged any facts that would tend to establish that the employer had engaged in anti-union activity by making the presentation during a bargaining year.  Without pointing to some objective evidence that the grievors had suffered some disadvantage because of their union membership or activity, the union could not establish a violation of the collective agreement.  Moreover, the union had not provided any facts that would raise an inference of anti-union animus by the employer. 
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a prima facie case would send the message that the presentation was "fine".  The Board disagreed, pointing to its role as an adjudicator under a collective agreement.  At para. 46, the Board stated:

The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was "fine" or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts [that], if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.

The case demonstrates the importance of carefully reviewing the language of the collective agreement when assessing the strength of a grievance or argument. Depending on the language of the agreement, "offensive" may not amount to "harassment" or "discrimination".  While the result would be different under an agreement that contains broader definitions of employee rights, the case stands for the proposition that an arbitrator is limited to the four corners of the collective agreement and cannot assert free-standing jurisdiction to judge every employer action, no matter how "offensive, distasteful and inappropriate" those actions may be.  The collective agreement still dictates the arbitrator's jurisdiction.

 Do you have concerns about workplace harassment or other offensive behaviour?  Need advice on an upcoming grievance arbitration?  Contact Lance Ceaser for cost-effective assistance with all of your labour and employment law issues.



 


 

Corporate Directors Jailed After Worker Falls to His Death

Any employer who has not yet received the memo, should pay close attention to some recent decisions of the Ontario courts. In cases where employees are seriously injured or killed following a workplace accident, the courts are increasingly willing to impose jail sentences in addition to substantial fines.

In R. v. New Mex Canada Inc., a decision of the Provincial Offences Court (summarized here), the employee was using an "order-picker" (a combination forklift/operator-up platform) which had been modified by tack-welding an additional platform onto the forks of the device.  There was no guarding surrounding the added platform, and the employee was not wearing fall-arrest protection.  The employee fell from the machine and died of blunt-force trauma to the head.  The Ministry of Labour found a number of violations of the Occupational Health and Safety Act (the "OHSA"), including the lack of fall-arrest equipment and the failure to provide health and safety training to employees.

The Ministry prosecuted the company and two of its directors.  The corporation pleaded guilty, and Justice of the Peace C. Jill Fletcher imposed a fine of $250,000 (plus the 25% victim surcharge) for failing to provide information and instruction to a worker about fall-arrest protection when the worker is working at heights.  The two directors also pleaded guilty, and were each given 25 days in jail (to be served on weekends) for failing to ensure that the corporation complied with its OHSA obligations.  In addition, they were ordered to take a health and safety training course within the next 60 days.

Sadly, this is not the first time that the Provincial Court has attempted to send this message.  It's troubling that an employer today would still not be providing the rudiments of workplace health and safety.  Still, the decision stands as one of many reminders to employers (and their corporate directors, supervisors, etc.) about the risks inherent in failing to take health and safety obligations seriously.  To avoid this outcome, employers must:

• Ensure that they have a health & safety policy, and procedures that explain to employees how to perform their duties safely.  Review policies on a regular basis to ensure they remain relevant and up-to-date;
• Ensure that corporate directors are familiar with the employer obligations under the OHSA and Regulations;
• Ensure that employees receive health and safety training (including, but not limited to, the "basic awareness training" mandated by Regulation 297/13), and provide regular refreshers;
• Be particularly diligent in training and supervising young workers and employees who are new to the workplace, as they are most vulnerable to hazards;
• Ensure that supervisors are "competent", by providing enhanced training designed to identify and alleviate workplace hazards.  Also make sure that supervisors are aware of and consistently enforcing workplace rules and policies regarding health and safety; 
• Conduct regular inspections of the workplace to identify any hazards, and be aware of any attempts by employees to circumvent safety measures.

Employers who make health and safety a 'front-of-mind' consideration are much less likely to end up on the wrong side of the Ministry of Labour or the courts.  And their directors probably won't end up in jail.

Do you have questions about your responsibilities under the OHSA and Regulations?  Need guidance in responding to a critical incident?  Contact Lance Ceaser for expert advice.

Supreme Court of Canada "Constitutionalizes" the Right to Strike

In a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the Canadian Charter of Rights and Freedoms protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the Charter.  The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the Charter.  In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses.  In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the Charter.

The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987).  The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.

While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere.  Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage.  Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. 

One outcome is clear, however.  This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.

Do you have questions about labour relations or employees' right to strike?  Contact Lance Ceaser for expert guidance.

Did you know...?

... Telling an employee who has given notice of resignation that you no longer require their services and they can leave immediately can convert that resignation into a termination without notice?  If the employee has provided 'reasonable notice' of resignation, but the employer decides to end the relationship before the expiry of that notice, it is the employer who has terminated the contract.  In these circumstances, the employee is entitled to payment in lieu of reasonable notice. 

This concept was illustrated in a recent decision out of the Supreme Court of Canada, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc. The Supreme Court determined that it is a "fiction" for an employer to claim that it has 'renounced' (or 'waived') the employee's notice of resignation, when in fact it has taken unilateral action to bring the contract to an immediate end. While the Asphalte Desjardins case was decided under the Quebec Civil Code, similar rules are applied by the common law courts.  See for example, the decision in Compton v. Partners in Motion Pictures Inc., a 2005 decision of the Saskatchewan Court of Queen's Bench. 

Once an employee provides notice of resignation, the employer can accept it or seek to negotiate a longer or shorter period of notice, but cannot dictate the effective date of resignation.  If the employee is to be sent home prior to the effective date of resignation, the employer should make clear that their active service will not be required, but that the employee should make him or herself available during the notice period to facilitate the transition of duties, projects, etc.  Full salary and benefits must be maintained for the entirety of the notice period, as well.

* * *

 

... That the new Ontario Budget Bill was accompanied by the Building Opportunity and Securing Our Future Act (Budget Measures, 2014) ("Bill 14") which, among other things, amends the Insurance Act to require employers who provide Long-Term Disability ("LTD") benefits to do so through "a contract of insurance undertaken by a licensed insurer"?  No longer can such benefits be self-insured. Health benefits providers have been pressing for this change for some time, as it provides greater security for those receiving benefits coverage.  This measure brings provincially-regulated employers in Ontario into line with federal employers, who have been subject to a similar requirement since 2012. Bill 14 received Royal Assent on July 24, 2014, but has yet to be proclaimed.  Stay tuned...

 

 * * *

... That an employer's duty to accommodate an employee suffering from drug addiction or alcoholism may not be triggered until the employee fully discloses the existence of the disability?  In a handful of recent decisions, adjudicators have been reluctant to overturn employer decisions to terminate the employment relationship where an employee engages in serious misconduct, even where the behaviour has its roots in addiction or alcoholism.

In Bish v. Elk Valley Coal Corporation, the employer had a drug and alcohol policy which offered amnesty to employees who disclosed an addiction, in exchange for their undertaking to go to rehab.  The employee was found to have cocaine in his system when he was tested after an accident on the job.  He had never disclosed an addiction prior to the accident, although he had attended a training session on the drug and alcohol policy.  The Alberta Human Rights Commission dismissed his complaint, finding that the employee was terminated not because of his addiction, but for his non-compliance with the policy, including his failure to reveal his condition and seek treatment. The Commission's decision that there was no prima facie discrimination was upheld by the Alberta Court of Queen's Bench on appeal.

In Huffman v. Mitchell Plastics, the Human Rights Tribunal of Ontario reached a similar conclusion.  Huffman was terminated by the company following grossly inappropriate behaviour at the office Christmas Party.  The employee was drunk, and belatedly claimed that he suffered from alcoholism, which he had 'disclosed' to the employer when he inquired about benefit coverage for the medication "Champix" (commonly used to assist smokers to quit smoking).  The Tribunal found that the Applicant had not properly disclosed his disability or provided sufficient information from which the employer ought to have known that he was an alcoholic.  Accordingly, the employer could not be expected to recognize that it had a duty to accommodate the employee at the point when it terminated him for his conduct.

* * *

 

Are you struggling to manage an employee's resignation?  Have questions about accommodating an addicted employee?  Feel free to contact Lance Ceaser to obtain advice and guidance.

Doing the “right thing”: Should an employer receive credit for correcting health & safety hazards after an accident? The Ontario Court of Appeal says “No”

The Ontario Court of Appeal recently ruled on whether corrective action taken by an employer after an accident (and an Order from a Ministry of Labour (“MOL”) Inspector) should mitigate the sentence the employer receives for breach of the Occupational Health and Safety Act (the “OHSA”).  In Ontario (Ministry of Labour) v. Flex-N-Gate Canada Company, an employee was injured after a bundle of metal sheets slipped off of a fork lift and struck the worker, causing serious injuries to her foot.  A MOL Inspector investigated the accident, and issued two orders to Flex-N-Gate.  The company complied with both orders immediately.  At trial, the Justice of the Peace found that the employer was guilty of offences under the OHSA, and imposed fines of $25,000 each on two counts, for a total fine of $50,000.  The total fine was well below the $500,000 maximum that an employer could face for each offence.

The employer appealed the decision to the Ontario Court of Justice, where the judge upheld the fines, but made them “concurrent”.  In effect, the total fine was reduced to $25,000.  Most significant to the judge’s ruling was her determination that Flex-N-Gate should receive credit for taking “ameliorating action” immediately following the issuance of the MOL orders, as a “reward” for doing “the right thing”.  The MOL appealed the decision.

At paragraph 19 of its decision, the Court of Appeal upheld the Ministry’s position on whether an employer should be credited for taking action after orders have been issued, stating:

… The court should not have discretion to treat an employer’s post-offence compliance, though statutorily required, as a mitigating factor on sentence.  Doing so would undermine one of the most important goals of the OHSA – accident prevention – and the statute’s most important sentencing principle – deterrence.

The Court found that treating corrective action after an accident as a mitigating factor on sentencing would create a disincentive to employers from taking preventive action before an accident occurs.  The Court of Appeal cited case law under the Environmental Protection Act, and adopted the view that actions taken after an incident that breaches public welfare legislation could be seen as an aggravating factor, since it demonstrates that hazards were discernible and could have been corrected in advance.  In short, the Court concluded (at para. 30):

If, after having contravened a safety standard, an employer then acts to correct the problem, it is not “doing the right thing”; it is doing what the statute requires it to do.  It ought not to be “rewarded” for its compliance.

However, the Court did observe that corrective action that exceeds what is required by an Inspector’s order and/or steps taken in advance of an accident to prevent or reduce the risk are valid mitigating considerations.

The Court then went on to find that prior cases decided by the Court of Appeal had found that “concurrent fines” were not available to a court under the OHSA and the Provincial Offences Act.  The court must consider the totality of the fines imposed to ensure that the ‘punishment fits the crime’, but has no discretion to make the fines for two or more offences concurrent.

The decision should remind employers that identifying and mitigating health and safety risks to prevent accidents is the focus of the OHSA.  Unless an employer takes bigger steps than required by the MOL after an accident, the corrective action will not reduce the penalty to be imposed.  In fact, taking steps after an incident may signal to the MOL that the employer was aware of the hazard and not duly diligent in addressing it. 

Do you have a health and safety issue in your workplace?  Contact Lance Ceaser to discuss your questions about the Occupational Health and Safety Act or to obtain representation.

Unpaid Internships – Going the way of the dodo?

Recently, a lot of attention has been focused on unpaid internships offered to students and other young job-seekers in Ontario.  With internships topping the list of Ministry of Labour “blitz” targets, the shuttering of intern programs at the Walrus and Toronto Life in response to Ministry enforcement activity, and the decision by Rogers to eliminate their unpaid internship programs at Flare and Chatelaine, there appears to have been a sea-change in attitudes toward these programs.   Beyond enforcement action by the Ministry, employers may have also heard about a significant increase in litigation south of the border, as unpaid interns have brought class actions against large companies for alleged failure to abide by the Fair Labor Standards Act.  All of this has led many employers to question the feasibility of their own training programs.

So, should organizations continue to offer valuable work experience to youth entering the job market by providing unpaid positions?  The answer to that question is partly legal and partly practical.

The Employment Standards Act, 2000 (the “ESA”) provides that there are limited circumstances in which an employer can offer unpaid ‘training’ positions to young workers.  First, there is the typical “co-op” program (section 3(5)¶ 2).  To qualify, the work must be performed “under a program approved by a college of applied arts and technology or a university”.  Aside from structured co-op programs, however, there is a second, less concrete form of training arrangement that is likewise exempt from the ESA.  In order to meet the exception, all of the following conditions must be met:

1. The training is similar to that which is given in a vocational school.
2. The training is for the benefit of the intern, such as imparting new knowledge or skills.
3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
4. The training doesn't effectively take someone else's job.
5. The employer isn't promising a job at the end of the training.
6. The intern has been told that he or she will not be paid for their time.

The focus of these conditions is on the educational or experiential value of the opportunity to the intern.  For many employers, meeting all of the conditions will be challenging, particularly balancing the provision of valuable learning to the student while deriving little benefit from the work. The Ministry has been clear that these are “very restrictive conditions”, suggesting that very few such arrangements are likely to be found to comply with the ESA.

If an intern is found to not meet these conditions, then the Ministry will find that they are “employees” of the employer and subject to all of the terms of the ESA, including hours of work, eating and rest periods, overtime and minimum wage requirements.  Where unpaid interns are found to be employees, an Order to Pay wages and vacation pay is almost a certainty.

However, beyond the strict legal preconditions, there are practical considerations, too.  Many interns have expressed concerns with the quality of the internships that they have been offered.  And dissatisfied, unpaid interns are much more likely to generate complaints or legal claims.  Therefore, it’s imperative that organizations ask themselves some questions (which also happen to dovetail with the legal requirements above):

·         Is there work that can be provided to a young worker that will enhance their formal education and training?  If the work in question is repetitive and mechanical, it’s unlikely the intern will receive much value or satisfaction from the experience.  A training program should be designed that takes into account the educational background of the intern to ensure that valuable practical skills are being imparted.

·         Assuming there are functions that will have practical value to the worker, would the organization generally have those functions performed by an employee?  If so, it may appear that the employer is benefiting and increase the intern’s sense that they are essentially an unpaid source of labour.

·         Are interns part of the employer’s overall labour strategy, or in addition to the workforce that would normally be retained?  Again, if it appears that the employer is “counting on” interns in order to meet its production requirements, it’s likely the employer will appear to be benefiting from unpaid labour.

·         How long are internship terms?  Are the same workers being offered multiple renewals of their internship arrangement?  The longer interns are retained and/or the more frequently they are renewed, the more likely that resentment will build that their services are being supplied for free without any prospect of paid employment.

·         Will the employer be in a position to ultimately offer paid positions to some individuals who perform internships?  While an employer should not promise employment flowing from the unpaid training (see the 5^th condition above), if it is clear that future employment with the organization is improbable, interns may become frustrated.

Providing a good work environment and ensuring that the organization’s internship program generates real benefit for trainees is perhaps the best means of ensuring both compliance with the ESA and that interns will not become dissatisfied.

If in doubt whether existing internship arrangements are consistent with legal requirements, however, employers would be well-advised to consider converting internship positions to paid, fixed-term trainee roles.  Ensuring that trainees receive at least minimum wage and other entitlements under the ESA is perhaps the best means of avoiding compliance issues in the current environment.

If you have questions or concerns about an internship program, feel free to contact Lance Ceaser to discuss.

Employee Web-based Email on Employer IT Resources – Can an employer look at it?

As more and more employers provide their employees with laptop computers, tablets and smartphones, employers often question whether everything that resides on those IT resources is open to monitoring and review.  These are business resources, and intended primarily for communication related to the employee’s work.  However, most employers also tolerate some personal use, as well, recognizing that increasingly ‘connected’ employees will use these devices for their own purposes on occasion.

So, where’s the line?  With an appropriate “Acceptable Use Policy” or similar workplace rules implemented and properly communicated, it’s clear that messages received via an employee’s work email account may be reviewed where the employer has reasonable grounds to believe that there may be evidence of wrongdoing in the employee’s email.  Likewise, a valid Policy may also shield an employer’s review of the content of an employee’s laptop, in appropriate circumstances.

But what if the employee has used work devices to access his or her personal email, for example by setting up a Gmail account on the corporate smartphone?  Does this open the door to employer review of the content of the personal email account?  Two recent decisions from other jurisdictions suggest that an employer is likely out of bounds if it takes this opportunity to look into the employee’s private correspondence.

Moore’s Industrial Service Ltd., Order P2013-07 (Alberta Information and Privacy Commissioner)

Following his retirement, an employee of the company (“Moore’s”) brought a complaint against his former employer, alleging that the CEO of Moore’s had been accessing and forwarding email from the complainant’s web-based, personal email account long after his retirement.  After leaving employment, the complainant had returned a corporate laptop (on which he’d accessed his personal email) to Moore’s.  The employee alleged that he had had the hard drive of the laptop wiped before he returned it, but somehow the employer had still managed to access his web mail and forward certain messages to the CEO’s account and to a former co-worker.  Approximately 2 months after the first incident, the complainant changed the password to his email account to prevent further access.

Moore’s acknowledged that the complainant’s email account had been accessed, but argued that it only opened and forwarded messages that appeared to relate to its business.  Moore’s claimed that its actions were designed to monitor whether the complainant was complying with the terms of a ‘termination agreement’ between the parties.  However, Moore’s did not advance any evidence that it had reasonable grounds to suspect a violation of the agreement.  The employer also argued that the complainant had implicitly consented to the access by returning the laptop with the web mail application still open (something the complainant denied) and by not changing his email password.

The Alberta Information and Privacy Commissioner concluded that the employee’s personal email account did constitute “personal employee information” for purposes of the Personal Information Protection Act (“PIPA”), which includes the information of a former employee, and that Moore’s did not have consent, actual or implied, to access that information.  The employer was not involved in an “investigation”, as defined in section 1(f) of the Act, as Moore’s had not provided the Commissioner with any evidence that it had reason to suspect the complainant was violating the termination agreement.  Moreover, the Commissioner concluded:

… In my view, even if the Complainant returned the laptop with his email account information intact, it was not reasonable for [Moore’s] to conclude that the Complainant intended [Moore’s] to access his personal email account on an ongoing basis. A more reasonable conclusion is that the Complainant simply neglected to remove all of his personal information from the laptop or that he tried to do this (or have it done) but failed.

In the circumstances, there was no basis for the Commissioner to “deem” that the complainant had consented to the CEO’s “unfettered access” to his personal email account.  The complainant’s failure to change his account password for almost 2 months after the first access was explained by the fact that it took the complainant some time to figure out how his email was being forwarded, and did not constitute proof that he was consenting to the ongoing access.

While the Commissioner did not need to determine whether the employer’s collection, use and disclosure of personal information was “reasonable”, she offered the opinion that Moore’s “continued access to the Complainant’s personal email account is far from being a reasonable collection, use or disclosure of personal information, nor is the purpose at all reasonable.”

In the result, the employer was ordered to stop collecting, using and disclosing the complainant’s personal information, to train staff on the appropriate management of personal information, and to notify the Commission and the complainant once it had complied with the Order.

Lazette v. Chris Kulmatycki, et al., Case No. 3:12CV2416 (U.S. Dist. Ct.)

The plaintiff, Sandi Lazette, was a former employee of Cellco Partnership, which did business as Verizon Wireless (“Verizon”).    Kulmatycki was her former supervisor.  After Lazette left her employment with Verizon, and returned her BlackBerry, she realized that Kulmatycki had continued to access her personal Gmail account that resided on the corporate smartphone.  Over a period of 18 months following her departure from Verizon, Kulmatycki had accessed approximately 48,000 personal email messages, without Lazette’s knowledge or consent.  She then changed the password on her Gmail account to prevent any further access.

The Claim by Lazette included several bases for damages, including violation of the Stored Communications Act (the “SCA”), violation of a state law prohibiting “interception” of electronic communications, common law invasion of privacy, as well as other statutory and common law causes of action.  The defendants sought to have the action dismissed.

In its decision on the defendants’ motion, the U.S. District Court for the Northern District of Ohio concluded that some of the plaintiff’s claims should be struck or limited.  The defendants argued that the provisions of the SCA were intended solely to address “hackers” breaking into computer systems belonging to others.  While the Court agreed that the legislation was “primarily” targeted at “hackers” and similar concerns, its application was more general and created a prohibition on any unauthorized access to electronic data without authorization.  The Court also rejected most of the defendants’ arguments, including its claim that the plaintiff had implicitly given authorization for her employer to access her personal email by failing to delete her Gmail account from the BlackBerry before returning the device to the company.  In rejecting this assertion, the Court observed:

Negligence is, however, not the same as approval, much less authorization. There is a difference between someone who fails to leave the door locked when going out and one who leaves it open knowing someone be stopping by.

Nor was the plaintiff required to expressly instruct her former employer that they should not access her personal email.  Moreover, even if the plaintiff could be deemed to have authorized monitoring of her personal email, this did not equate to permission to read everything in her account.

The Court did, however, conclude that only those email that the plaintiff had yet to open were in “electronic storage”, and struck any claims related to opened, undeleted email that were in her account.

Based on the language and interpretation of the word “intercept” given in prior case law, the Court also accepted the defendants’ contention that the defendants had not “intercepted” the plaintiff’s email:  the email was already stored on the service provider’s server, and was then sent to the plaintiff’s device where it was read, so there was no “interception” in the circumstances.

The Court was not prepared to reject the plaintiff’s claim for invasion of privacy, finding:

Many factors can affect whether plaintiff’s expectations that no one would intrude into her e-mail account [are reasonable], particularly in light of her unawareness of Kulmatycki’s ability to do so. Indeed, the precise terms of the warning [in the employee handbook]  matter. With regard to what one might expect from a warning of the possibility of occasional, random monitoring is one thing, total absorption is another. Here there are, in any event, several preliminary issues that have yet to be addressed. Among these, aside from the content of the warning, are just what did Kulmatycki do, when did he do it, what were his motives, when might plaintiff have become aware of his intrusions, and what and from whom had she learned about using her  company blackberry for a personal e-mail account. These and other factors may have a bearing on the reasonableness of what plaintiff might reasonably have expected when she returned her blackberry.

Given that evidence would have to be adduced on these preliminary issues, the Court was not prepared to reject her claim that the defendants had intruded upon her privacy by accessing her personal email without authorization.

The plaintiffs other claims were also allowed to stand, although she was required to amend her pleadings to include a specific claim that she had suffered some form of psychological injury or harm as a result of the defendants’ actions.

What does it mean for Ontario employers?

While Ontario has never passed privacy protection legislation applicable to private-sector employment matters (such as Alberta has), the 2012 decision of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, recognized the existence of a common law tort (cause of action) for invasion of privacy or “intrusion upon seclusion” in Ontario.  In that case, involving a bank employee’s unauthorized access to the electronic banking records of the plaintiff, the Court conducted a review of the existing jurisprudence, at common law, under the Canadian Charter of Rights and Freedoms, and emanating from the U.S. and other common law jurisdictions, as well as the patchwork of Canadian privacy legislation. Following this review, the Court of Appeal concluded:

In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

The Court went on to explain:

The case law, while certainly far from conclusive, supports the existence of such a cause of action.  Privacy has long been recognized as an important underlying and animating value of various traditional causes of action to protect personal and territorial privacy. Charter jurisprudence recognizes privacy as a fundamental value in our law and specifically identifies, as worthy of protection, a right to informational privacy that is distinct from personal and territorial privacy. The right to informational privacy closely tracks the same interest that would be protected by a cause of action for intrusion upon seclusion. Many legal scholars and writers who have considered the issue support recognition of a right of action for breach of privacy: …

… The Internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic databases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled and the nature of our communications by cellphone, e-mail or text message.

The Court then formulated the elements of the cause of action:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

Based on this newly recognized cause of action, it is clear that employers should be cautious before accessing an employee’s personal email, even if it is “located” on a corporate smartphone or laptop.  While acceptable use policies will typically provide guidance on prohibited activities using employer resources, as well as the fact that monitoring may occur, often employers will (openly or tacitly) permit some personal use of these resources, too.  Doing so is likely to create at least the appearance that the employee has some reasonable expectation of privacy in relation to his or her use of the employer property.  The alternative of banning any and all personal use is often viewed as draconian and virtually impossible to police.

So what can an employer do and what should be avoided? 

·         If no personal use of work devices is permitted, ensure that the Acceptable Use Policy is clear that the employer retains the right to review and monitor any use of its resources, including utilizing any passwords and accessing any sites that have been visited using these work tools.

·         If, as is more likely, some personal use will be permitted, ensure that the Acceptable Use Policy reflects that employees should not use personal email for business purposes, that confidential business information should not be sent using a personal email account, and that any passwords used to access personal email should be removed and/or changed prior to returning laptops or other devices to the employer.

·         Ensure that managers and IT staff are properly trained in the management of corporate devices and the personal information that may be on them.  Whenever possible, all personal information should be wiped from laptops and phones when they are returned.  Personal email passwords and other sensitive information should be deleted, and web-based email accounts should not be accessed.

·         If employees will be exposed to highly sensitive or confidential business information in the course of their duties, consider implementing some form of data-loss prevention technology to flag items of concern and provide the capability to track and/or block their movements both within and outside the organization’s IT infrastructure.  This can include the ability to prevent such material from being attached to an email sent through a web-based email account.

As the case law develops, it is likely that privacy protections will continue to expand – particularly as our electronic world continues to put more and more of our personal information at risk of exposure.  Employers who provide employees with the resources to access and make that information available via the internet need to be aware that their rights are limited in intruding upon the employee’s privacy – even if the employee forgets to close the door on their personal email.