EMPLOYMENT LAW CONFERENCE 2020 PAPER 3.1
ALL EYES ON YOU: PRIVACY IN THE WORKPLACE A REVIEW OF THE LAW AND RECENT DEVELOPMENTS
These materials were prepared by Kristen Woo and Matthew Larsen of Fasken and Fiona H. McFarlane of Kent Employment Law, who were assisted by Marissa Di Lorenzo (articled student at Fasken), with editing by Wendy Woloshyn, Kent Employment Law, for the Continuing Legal Education Society of British Columbia, September 2020. © Kristen Woo, Fiona H. McFarlane and Matthew Larson - 2 -
ALL EYES ON YOU: PRIVACY IN THE WORKPLACE A REVIEW OF THE LAW AND RECENT DEVELOPMENTS
I. Introduction ...... 3 II. Evolution of the Reasonable Expectation of Privacy ...... 4 A. Supreme Court of Canada Decisions ...... 7 1. Cole ...... 7 2. Simpson...... 7 3. Jarvis ...... 8 III. The Tort of “Intrusion Upon Seclusion” ...... 10 IV. The Tort of “Publicity Which Places a Person in a False Light” ...... 10 A. The Ontario Case of Yenovkian v. Gulian ...... 10 B. Applicability in British Columbia ...... 14 V. Employee Surveillance and Monitoring ...... 14 A. PIPA ...... 14 B. Office of the Information and Privacy Commissioner Guidance and Interpretation...... 15 1. Video Surveillance (Teck Coal Limited) ...... 16 2. Monitoring Software (District of Saanich) ...... 17 3. GPS Tracking Devices (Schindler Elevator, KONE and TKE) ...... 19 C. Labour Arbitration ...... 20 1. Vernon Professional Firefighters Assn...... 20 D. Key Takeaways ...... 22 VI. Privacy and the Admissibility in Litigation of Evidence...... 23 A. OIPC ...... 23 B. British Columbia Courts ...... 23 1. Richardson v. Davis Wire Industries ...... 23 2. Treatment of Richardson ...... 25 3. Non-Employment Law Decisions ...... 25 4. Charter Values ...... 26 5. Conclusion: British Columbia Courts ...... 27 C. British Columbia Workplace Tribunals ...... 28 1. Administrative Tribunals Act, S.B.C. 2004, c. 45 ...... 28 2. BC Human Rights Tribunal ...... 28 - 3 -
3. BC Labour Relations Board ...... 29 4. BC Workers Compensation Appeal Tribunal ...... 30 5. BC Employment Standards Tribunal ...... 31 6. Conclusion: British Columbia Workplace Tribunals ...... 31 D. British Columbia Labour Arbitration ...... 31 1. Arbitral Case Law ...... 32 2. Conclusion: British Columbia Labour Arbitration ...... 32 VII. Final Thoughts ...... 33 APPENDIX - RELEVANT SECTIONS OF PIPA ...... 34
I. Introduction
We live in a world in which privacy is a hot topic. Employers have access to more technologies than ever before to monitor employees’ performance and conduct in the workplace. Employees’ privacy rights are often pitted against an employer’s right to manage their workforce, leaving the courts and other decision makers to grapple with balancing these conflicting interests in light of endless technological advancements and changing attitudes on what privacy means in a digital age.
This paper discusses the following topics, with a focus on provincial private-sector privacy laws in British Columbia: evolution of the reasonable expectation of privacy, the tort of intrusion upon seclusion, the tort of “publicity which places a person in a false light”, employee surveillance and monitoring, and privacy and the admissibility in litigation of evidence obtained in contravention of an individual’s privacy rights.
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II. Evolution of the Reasonable Expectation of Privacy
The Privacy Act, R.S.B.C. 1996, c. 373 establishes the statutory tort of invasion of privacy in British Columbia. Section 1 states:
(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.
(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.
(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
Section 1 contains a few noteworthy elements. First, the tort is actionable without proof of damage, meaning that a plaintiff can commence an action without having suffered any actual loss or damages, such as termination of employment. Therefore, where the plaintiff has suffered no pecuniary loss, only “symbolic” or “moral” damages may be appropriate to acknowledge the wrong done. Damage awards under the Privacy Act have generally ranged from $5,000 to $35,000, although there have been some cases in which smaller and larger amounts of damages were awarded.
Second, the analysis of whether there has been an invasion of privacy relies heavily on context, and specifically, “the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties” and what is “reasonable in the circumstances, giving due regard to the lawful interests of others”. The absence of a strict legal test for an invasion of privacy may assist both plaintiffs and defendants in crafting arguments to suit their circumstances. As stated by Justice Sharpe of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 (“Jones v. Tsige”), the legislature in British Columbia “proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right” (para. 54).
By virtue of subsection 1(2), the concept of a “reasonable expectation of privacy” is codified within Section 1 of the Privacy Act, and its evolution can be traced throughout the case law in British Columbia. Below is a table that summarizes a selection of decisions in British Columbia concerning the statutory tort of invasion of privacy and each decision’s potential relevance to employer-employee relationships (or its relevance to the law generally):
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Case Summary Relevance to Employer-Employee Relationship (or the Law Generally)
Hollinsworth v. Defendant released videotape of Case addressed what is meant by BCTV, [1996] B.C.J. plaintiff having hair transplant “wilfully” and “without a claim of right” No. 2638 (S.C.), surgery. Plaintiff awarded $15,000 in subsection 1(1) of the Privacy Act. aff’d in (1998) 59 in general damages. B.C.L.R. (3d) 121 “Wilfully” means an intention to do an (C.A.) act which the person doing the act knew or should have known would violate the privacy of another person.
“Without a claim of right” means without an honest belief in a state of facts which, if it existed, would be a legal justification or excuse.
Malcolm v. Fleming, Defendant landlord secretly Employers should be mindful of where 2000 CarswellBC videotaped plaintiff while she was surveillance cameras are placed in the 1316 (B.C.S.C.) in her bathroom and bedroom. workplace. Cameras should not be placed Plaintiff awarded $15,000 in in washrooms, change rooms, or areas general damages and $35,000 in where confidential consultations are punitive damages. sought (for example, human resources offices or counselling offices).
Getejanc v. Defendant entered and searched While the defendant’s actions were not Brentwood College plaintiff’s home after learning that a malicious, there were other less privacy- Ass'n, 2001 BCSC student was boarding there without intrusive ways to confirm whether the 822 permission. Plaintiff awarded student was boarding in the plaintiff’s $2,500 in general damages. home. The defendant’s interest in overseeing students’ behaviour was not a “claim of right” that would provide a legal justification or excuse.
Less privacy-intrusive options should be exhausted before embarking on the most privacy-intrusive option. A failure to first engage less privacy-intrusive options may result in an award of damages. - 6 -
Case Summary Relevance to Employer-Employee Relationship (or the Law Generally)
Milner v. Defendant insurance company hired This decision recognizes that a person’s Manufacturers Life four private investigators to take expectation of privacy may be Insurance Company, surveillance photos of plaintiff, diminished (or perhaps even eliminated) 2005 BCSC 1661 including from outside her home. when they have engaged in conduct No damages were awarded because which may justify surreptitious the defendant had a lawful interest surveillance. Accordingly, surreptitious in conducting surveillance of the surveillance of an employee may be plaintiff considering the nature of justified where the employer has her claim and the credibility issues reasonable cause to believe that the her conduct raised. The plaintiff employee is engaged in misconduct (e.g. was not entitled to an expectation of theft), and less privacy-intrusive privacy in the circumstances, even measures (e.g. interviewing the though the court held that she was employee) are unlikely to be effective. disabled and entitled to disability benefits.
Poirier v. Wal-Mart Defendant fired plaintiff for cause. Employers should obtain consent from Canada Corp., 2006 Defendant subsequently used employees before using their name or BCSC 1138 plaintiff’s name and photo to image for the purpose of advertising, and advertise opening of a new store. re-obtain consent to use their name or Plaintiff awarded $15,000 in image after the employee’s employment general damages. has ended.
Watts v. Klaemt, Defendant recorded plaintiff’s While the defendant’s breach of privacy 2007 BCSC 662 telephone conversations and led to the plaintiff’s dismissal, the reported content to plaintiff’s plaintiff’s misconduct was the reason employer, the Ministry of Social underlying the loss of her employment Services. During the telephone and the consequential damages. The conversations, the plaintiff court found that the plaintiff must assume disclosed confidential information responsibility for any damages flowing from the Ministry’s files and directly from her dismissal, including any counselled her daughter and son-in- claim for past and future wage loss, loss law on ways to avoid detection and of opportunity, and loss of earning prosecution by the Ministry. capacity. Plaintiff was then fired. Plaintiff was awarded $30,000 in general However, the plaintiff was still awarded damages and $5,000 in punitive $35,000 in damages because her privacy damages. was unlawfully invaded by the defendant. - 7 -
Case Summary Relevance to Employer-Employee Relationship (or the Law Generally)
TeBaerts v. Penta Defendant employer accessed a The timing of the employer’s access was Builders Group Inc., personal email on plaintiff’s work significant: it occurred after a series of 2015 BCSC 2008 email account. Defendant did not events which led to the employer having breach plaintiff’s right to privacy. concerns about the plaintiff’s conduct. Further, the plaintiff was aware that her employer knew her password and had previously accessed her computer.
Workplace policies should address personal use of employer-owned equipment, whether employees should have an expectation of privacy, and whether the employer will be monitoring emails, documents, etc. stored on its servers, including those that may be personal in nature.
A. Supreme Court of Canada Decisions
There have been three notable Supreme Court of Court (“SCC”) cases that have discussed the reasonable expectation of privacy: R v. Cole, 2012 SCC 53 (“Cole”), R. v. Simpson, 2015 SCC 40 (“Simpson”), and R. v. Jarvis, 2019 SCC 10 (“Jarvis”).
1. Cole
Cole involved a high school teacher who used his work computer to access and store child pornography. The case concerned whether Mr. Cole’s privacy under the Canadian Charter of Rights and Freedoms had been breached and whether the computer files that had been seized by the police should be excluded from evidence as a result. The SCC confirmed that employees do have a reasonable expectation of privacy with respect to personal information stored on employer- owned electronic equipment, at least when employers authorize or reasonably expect personal use to be made of such equipment.
The SCC stated that determining whether an expectation of privacy is reasonable involves four lines of inquiry: one, examining the subject matter of the alleged search; two, determining if the claimant had a direct interest in that subject matter; three, inquiring into any subjective expectation of privacy a claimant had in the subject matter; and four, assessing if a subjective expectation was objectively reasonable.
2. Simpson
In Simpson, the SCC emphasized that the question of objective reasonableness is not one of probability, but instead a normative assessment of reasonableness. The court asks: should the - 8 - claimant reasonably expect that his or her computer files, emails, or text messages will remain private, in keeping with societal and legal norms in Canada: R. v. Pelucco, 2015 BCCA 370 at para. 58.
3. Jarvis
Jarvis involved a high school teacher who used a spy camera concealed in a pen to make surreptitious video recordings of female students’ faces, breasts, and upper bodies while the students were in common areas of the school. The students were unaware that they were being recorded. Mr. Jarvis was charged with the crime of voyeurism.
The Ontario Court of Appeal upheld Mr. Jarvis’ acquittal on the basis that the students in the recordings were not in circumstances that gave rise to a reasonable expectation of privacy.
In a unanimous decision, the SCC disagreed with the Ontario Court of Appeal, and concluded that the students did have a reasonable expectation of privacy. By reaching this conclusion, the SCC recognized that “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording”. One’s expectation of privacy ultimately depends on what is reasonable in the circumstances.
The SCC developed a non-exhaustive list of considerations to assess when determining whether a person who was observed or recorded was in circumstances that gave rise to a reasonable expectation of privacy:
• The location the person was in when observed or recorded. The location may be one from which the person sought to exclude all others (for example, a bathroom), or expected to be observed only by a select few.
• The nature of the impugned conduct; that is, whether it consisted of observing or recording. Since a recording is more intrusive, and potentially more damaging, a person’s expectations with respect to recording versus observation may well be different.
• Awareness of or consent to potential observation. For example, if a workplace deploys overt surveillance cameras, employees’ expectations of privacy may be diminished.
• The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was brief or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used.
• The subject matter or content of the observation or recording. The more intimate and sensitive the information, the higher the privacy expectation will be.
• Any rules, regulations, or policies that governed the observation or recording in question. Rules specific to a place (such as workplace policies) will typically be relevant, though not necessarily determinative, and their weight will vary depending on the context.
• The relationship between the person who was observed or recorded and the person who did the observing or recording. A relationship of trust or authority will create a higher - 9 -
expectation of privacy, since such relationships generate a concomitant expectation that they will not be abused.
• The purpose for which the observation or recording was done. A person’s reasonable expectation of privacy will vary depending on the purpose for which the information is collected. For example, a person disrobing for a medical examination or procedure abandons their expectation of privacy for that specific purpose. If, however, the medical procedure turns out to be a pretext for the physician to view the patient for a non-medical purpose, the reasonable expectations of the patient have arguably been violated.
• The personal attributes of the person who was observed or recorded. For example, vulnerable individuals such as children may attract a higher degree of privacy.
At the time of this paper’s preparation, Jarvis has only been cited in one subsequent employment case, Durant v. Aviation A. Auto Inc. (Audi Moncton), 2019 NBQB 214 (“Durant”). Mr. Durant was terminated for cause for taking surreptitious photos and videos of female customers on his work tablet and distributing them to his co-workers. Mr. Durant brought a claim for wrongful dismissal.
The court determined that Mr. Durant’s misconduct was serious in nature because the photos and videos were clearly taken for an improper, non-work related purpose. The fact that the employer used video surveillance in the workplace was not a defence. Referring to Jarvis, the court stated that individuals may reasonably expect to be captured by video surveillance, but they would not reasonably expect to be the subject of targeted recording. Other aggravating factors included the fact that Mr. Durant did not accept responsibility for his conduct, took the videos on employer- owned equipment, shared the photos and videos with several co-workers, and generally acted contrary to his seniority and experience of 34 years.
The court also considered the fact that Mr. Durant was the “face” of the employer, given his customer-facing position. The employer had placed a high degree of trust in Mr. Durant to treat customers with courtesy and respect. Further, this was not the first time that Mr. Durant had been disciplined for similar inappropriate conduct; he had received a warning letter in the past, as well as at least one verbal warning six months prior.
Because Mr. Durant’s misconduct was very serious and incompatible with his employment obligations, the court found that the employer had established just cause for Mr. Durant’s dismissal. The court affirmed that customers have certain reasonable privacy expectations, including that they will not be the subject of unauthorized recordings or photos.
Although both Cole and Jarvis are criminal cases, the principles and framework for a reasonable expectation of privacy are very likely to be applicable in the employment context, as demonstrated in Durant. These cases may have a far-reaching impact on the privacy rights of individuals against other individuals, particularly as surveillance and other technologies continue to advance, often with the result of eroded personal privacy. - 10 -
III. The Tort of “Intrusion Upon Seclusion”
Saskatchewan, Manitoba, Quebec, and Newfoundland also have privacy legislation that creates a statutory tort or civil right of action for invasion of privacy.
In all other provinces where there is no statutory tort of invasion of privacy, the common law tort of invasion of privacy applies, as established in Jones v. Tsige. The test for this tort is:
1. The defendant’s conduct must be intentional and/or reckless;
2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
3. A reasonable person would regard the invasion as highly offensive or causing distress, humiliation, or anguish.
The common law tort is also referred to as “intrusion upon seclusion” (i.e., intrusion upon the plaintiff's seclusion or solitude surrounding their private affairs). In Jones v. Tsige, Ms. Jones, a bank employee and account holder, was awarded $10,000 in damages after Ms. Tsige, an employee at a different branch of the same bank, accessed Ms. Jones’ personal banking information without authorization on more than 174 separate occasions over a four-year period. Although the two women did not know one another directly, Ms. Tsige was in a common-law relationship with Ms. Jones’ ex-husband.
The decision in Jones v. Tsige has previously been the subject of discussion at this conference. In this paper, we will discuss the newest common law privacy tort in Canada, named the tort of “publicity which places a person in a false light” (referred to hereinafter as the “false light tort”).
IV. The Tort of “Publicity Which Places a Person in a False Light”
A. The Ontario Case of Yenovkian v. Gulian
The false light tort was established in Yenovkian v. Gulian, 2019 ONSC 7279 (“Yenovkian v. Gulian”), a recent decision by the Ontario Superior Court of Justice. The award of damages in this case is significant: $150,000 in punitive damages, $50,000 for intentional infliction of mental suffering, and $100,000 for breach of privacy were awarded, for a total of $300,000. In contrast, the Ontario Court of Appeal in Jones v. Tsige stated that $20,000 would be the approximate cap on damages where no pecuniary loss was suffered by the plaintiff.
The action involved a family law dispute between Mr. Yenovkian and Ms. Gulian. Mr. Yenovkian filed for a divorce and claimed access and custody of the couple’s two children. Ms. Gulian cross- claimed for spousal maintenance and damages for the torts of nuisance, harassment, intentional infliction of mental suffering, and invasion of privacy.
There were previous family law proceedings between Mr. Yenovkian and Ms. Gulian. Following the end of those prior proceedings, Mr. Yenovkian created two websites and, along with sending - 11 - emails, engaged in a campaign of cyberbullying against Ms. Gulian, her parents, their two children, and an Ontario judge who had ruled against him.
The Court admitted into evidence Mr. Yenovkian’s websites and videos, not as proof of the truth of their contents, but as evidence of the allegations he had made against Ms. Gulian and her family.
The Court ultimately granted a divorce and several remedies in favour of Ms. Gulian, including requiring Mr. Yenovkian to have supervised Skype and FaceTime calls with his children on strict conditions. As noted above, the Court also awarded a total of $300,000 in damages to Ms. Gulian.
On the issue of invasion of privacy, Justice Kristjanson began by recognizing that the Ontario courts have already established three of the four privacy torts long recognized in the United States:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs (Jones v. Tsige);
2. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness (Jones v. Tsige, citing Athans v. Canadian Adventure Camps Ltd., [1977] O.J. No. 2417 (Ont. H.C.));
3. Public disclosure of embarrassing private facts about the plaintiff (Jane Doe 464533 v. N.D., 2016 ONSC 541 (“Jane Doe 2016”) and Jane Doe 72511 v. N.M., 2018 ONSC 6607 (“Jane Doe 2018”)); and
4. Publicity which places the plaintiff in a false light in the public eye (which had not yet been recognized by the Ontario courts).
In the two principal cases that dealt with the tort of public disclosure of private facts, the defendant had published intimate videos of his partner on internet pornography sites. In both Jane Doe 2016 and Jane Doe 2018, there was default judgment for the plaintiff, but because the default judgment was set aside in Jane Doe 2016, the cause of action was recognized anew in Jane Doe 2018. The elements of the cause of action, as set out in Jane Doe 2018, are as follows:
(a) The defendant publicized an aspect of the plaintiff's private life;
(b) The plaintiff did not consent to the publication;
(c) The matter publicized or its publication would be highly offensive to a reasonable person; and
(d) The publication was not of legitimate concern to the public.
In so describing the elements of the tort, the Court followed the American legal test, but with a subtle but important modification: it need not be the matter itself that is highly offensive to a reasonable person; it is enough if the fact of its publication is offensive (Jane Doe 2016 at para. 46; Jane Doe 2018 at paras. 81, 98-99).
Moving to the last remaining tort in the “four-tort catalogue”, Justice Kristjanson adopted the American legal test for the false light tort at para. 170: - 12 -
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Justice Kristjanson clarified at para. 171 that “while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.”
His analysis continued at paras. 172 to 174:
It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)
It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.
Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.
The Court found Mr. Yenovkian liable for the tort of placing Ms. Gulian in a false light. Mr. Yenovkian had made serious false allegations online about Ms. Gulian and her family, such as allegations of kidnapping, child abuse, drugging of the children, forgery, and fraud, and he had publicized them on his websites.
The Court held that although some of what Mr. Yenovkian had posted about Ms. Gulian and her family was true, this did not amount to a defence. To the extent that Mr. Yenovkian included true statements about Ms. Gulian in the publicity he had created around their dispute, he was liable to her for public disclosure of private facts. The parties’ parenting dispute was not a matter of legitimate concern to the public (save to the extent that it is the subject of a public judicial proceeding) and a reasonable person would find it highly offensive that the dispute had become the subject of a website and an online petition. - 13 -
When it came to awarding damages, the Court justified the difference in damages awarded for the false light tort and damages awarded for intrusion upon seclusion at paras. 187-188:
On damages for intrusion on seclusion, the Court of Appeal in Jones v. Tsige held at para.s 87-88 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, in a range up to $20,000. The important distinction with the two invasion of privacy torts in issue here, however, is that intrusion on seclusion does not involve publicity to the outside world: they are damages meant to represent an invasion of the plaintiff’s privacy by the defendant, not the separate and significant harm occasioned by publicity.
The two Jane Doe cases have recognized that the cap on damages for intrusion upon seclusion may not apply to the other forms of invasion of privacy: Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. In this case, as is in those, the “modest conventional sum” that might vindicate the “intangible” interest at stake in Jones v. Tsige, para. 71, would not do justice to the harm the plaintiff has suffered.
In awarding $100,000 in damages for the false light tort, Justice Kristjanson stated at paras. 190 and 193:
I likewise adopt the method of looking to the factors applied to decide damage awards for a tort causing harms analogous to those the present plaintiff has suffered for invasion of privacy. The harm arising from the invasion of privacy in the present case is akin to defamation. Accordingly, in arriving at an award of non-pecuniary damages, I am guided by the factors described by Cory J. in Hill v Church of Scientology, at para. 187, which I am adapting to the tort of publicity placing a person a false light:
(a) the nature of the false publicity and the circumstances in which it was made,
(b) the nature and position of the victim of the false publicity,
(c) the possible effects of the false publicity statement upon the life of the plaintiff, and
(d) the actions and motivations of the defendant.
…
On the tort of invasion of privacy (false light and public disclosure of private facts), I award damages of $100,000, considering the conduct here and the range in the cases identified in Rutman v. Rabinowitz, 2018 ONCA 80 and Mina Mar Group Inc. v. Divine, 2011 ONSC 1172, and the increased potential for harm given that the publicity is by way of the internet, which is “instantaneous, seamless, interactive, blunt, borderless and far-reaching”: Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416 (Ont. C.A.) at para. 31. I find that third parties have commented on the websites and signed the petitions in both the UK and the US, and that Mr. Yenovkian has sent targeting e-mails and caused the distribution of flyers in the UK driving people to the websites in addition to the mere fact of publication.
It is interesting that the Court held that damages should be calculated by considering the same factors employed in setting damages for defamation, although defamation is not required to prove the false light tort. How this new tort will accord with the tort of defamation has yet to be uncovered, as well as what defences are available to defendants who are accused of committing the false light tort. - 14 -
B. Applicability in British Columbia
Yenovkian v. Gulian exemplifies how Ontario courts are willing to adapt common law principles to reflect the modern environment in which privacy interests operate. It remains to be seen whether the statutory tort of violation of privacy in British Columbia will be expanded to include the false light tort, or whether the false light tort will operate independently.
The BC Supreme Court drew a distinction between defamation and invasion of privacy in Niemela v. Malamas, 2015 BCSC 1024 at para. 50: “Although the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 121 identified reputational interest and privacy as the two values underlying the plaintiff’s protection in defamation, it does not follow that defamatory comments therefore give rise to a breach of the statutory right to privacy”. The Court discouraged “a scattergun approach, pleading multiple causes of action which do not fit the bill”, when the plaintiff’s claim fell “squarely within the law of defamation”.
In another decision, the BC Supreme Court analyzed the torts of defamation and invasion of privacy separately, and awarded $40,000 to the plaintiff after concluding that the defendant had published defamatory materials (see Nesbitt v. Neufeld, 2010 BCSC 1605). The case was similar to Yenovkian v. Gulian in that the defendant had created webpages and sent emails and letters designed to humiliate the plaintiff in the context of family court proceedings.
Our view is that the statutory tort of violation of privacy in British Columbia will likely evolve to include the tort of public disclosure of private facts and the false light tort. The flexibility provided by Section 1 of the Privacy Act arguably allows for such expansion, and it would create a gap in the law should the British Columbia courts refuse to recognize the harm created when private personal information, whether true or false, is wrongfully released to the public. Having said that, the BC Supreme Court has stated before that “no common law tort of invasion or breach of privacy exists in British Columbia” (Demcak v. Vo, 2013 BCSC 899 at para. 8).
One can foresee that the false light tort may be applicable in the employment context - for example, where an employee publishes false, but not necessarily defamatory, information about their manager on social media. One question is whether corporate employers will be able to claim the false light tort. Although companies are no stranger to asserting claims of defamation, claims of invasion of privacy have typically been made by individuals rather than companies. However, with the right set of facts, one can envision a scenario in which companies would be able to successfully meet the test for the false light tort, as adopted in Yenovkian v. Gulian.
V. Employee Surveillance and Monitoring
A. PIPA
When considering the implementation of monitoring in the workplace that may impact the privacy rights of employees, private-sector employers in British Columbia must comply with the Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”). At this juncture, we would like to highlight several definitions in PIPA, as well as Section 13 of PIPA, which allows for collection - 15 - of employee personal information. Other important sections of PIPA are included in the Appendix to this paper.
Section 1 of PIPA defines “employee personal information” as:
personal information about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual, but does not include personal information that is not about an individual's employment. The definition of “employee” includes a volunteer and the definition of “employment” includes an unpaid volunteer work relationship. Further, “work product information” is defined as:
information prepared or collected by an individual or group of individuals as a part of the individual's or group's responsibilities or activities related to the individual's or group's employment or business but does not include personal information about an individual who did not prepare or collect the personal information. Section 13 of PIPA states:
(1) Subject to subsection (2), an organization may collect employee personal information without the consent of the individual.
(2) An organization may not collect employee personal information without the consent of the individual unless
(a) section 12 allows the collection of the employee personal information without consent, or
(b) the collection is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.
(3) An organization must notify an individual that it will be collecting employee personal information about the individual and the purposes for the collection before the organization collects the employee personal information without the consent of the individual.
(4) Subsection (3) does not apply to employee personal information if section 12 allows it to be collected without the consent of the individual.
B. Office of the Information and Privacy Commissioner Guidance and Interpretation
To assist employers and employees in understanding their rights pursuant to PIPA, the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”) issued two guidance documents in 2017: “Using Overt Video Surveillance” (October) and “Employee Privacy Rights” (November). We also refer the reader to Keri Bennett’s paper titled “Privacy Update: Labour and Employment Law” (May 2018) as an additional resource.
Briefly, the following are examples of employee monitoring conducted by some employers:
1. Video and/or audio surveillance. The OIPC may consider overt surveillance to be reasonable if it is “for the purposes of creating, managing or terminating an employment relationship”. The use of overt video and/or audio surveillance should be used as a last resort.
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2. Monitoring software. The OIPC cautions against the use of monitoring software since over-collection of personal information is a likely possibility. For example, key stroke monitoring may track non-work related emails or permitted personal use of employer systems, and firewalls may collect personal information when employees try to access a blocked website.
3. GPS tracking. The OIPC’s trilogy of orders on GPS tracking held that an employer's monitoring of the use of its business assets by employees through GPS tracking will usually be considered a reasonable collection and use of employee personal information, but it is critical to provide proper notice to employees prior to rolling out GPS technology, and employers must ensure that the information being captured relates only to the employment relationship.
1. Video Surveillance (Teck Coal Limited)
A May 2020 Order illustrates how the OIPC considers and applies Section 13 of PIPA in the context of video surveillance.
Teck Coal Limited, 2020 BCIPC 24 (CanLII) (“Teck Coal Limited”) involved complaints by three employees that certain video cameras at the employer’s Fording River Operations were collecting personal information in violation of PIPA. Nine video cameras at two different locations were at issue – four were located in the tool area and five were located in office areas. The purpose of the cameras, according to the employer, was to deter and investigate possible theft. The employer explained that the recordings were not regularly monitored, would only be accessed if a theft or a security breach occurred, and would be shared with the union in the event of disciplinary consequences.
After finding that personal information was being collected by the cameras, the Adjudicator turned to whether or not the collection, use and disclosure was “reasonable” in the circumstances. At para. 40, the Adjudicator provided a non-exhaustive list of factors to consider when considering what is reasonable under Section 13 and Section 16 of PIPA, the latter of which allows for limited use of employee personal information:
1. Sensitivity of the employee personal information (i.e., health history or a medical condition is sensitive information, but an employee’s name or home address is not);
2. Amount of personal information (i.e., Is the employer collecting, using or disclosing more information than is necessary to achieve its purpose(s)?);
3. Likelihood of effectiveness (i.e., Is there a reasonable likelihood that the collection, use or disclosure of personal information will fulfil the employer’s objectives?);
4. Manner of collection and use of the personal information (i.e., Was the employee aware that the information was being collected, or was it covertly collected? In what circumstances and how often does the employer access the information?); - 17 -
5. Less privacy-intrusive alternatives (i.e., Has the employer given reasonable consideration to other methods for achieving its objectives? This factor does not necessarily require the employer to implement the least privacy-intrusive alternative, but the employer must consider the balance between its interest and the right of individuals to protect their personal information.); and
6. Other relevant factors given the circumstances.
Turning to the two different locations, the Adjudicator applied the factors listed above. In the case of the tool area cameras, the Adjudicator was satisfied that the cameras were placed reasonably, as they were “in an open, active work area, where employees’ behaviour is already observable by other employees or supervisors” (para. 52).
With respect to the effectiveness of the cameras in the tool area, the Adjudicator was not persuaded by the employer’s evidence, which was that the video footage was infrequently used for the purposes of investigating workplace incidents. The Adjudicator was however neutral on the availability of alternatives and noted that “neither Teck nor the complainants described any other methods for detecting or responding to a safety or production incident” (para. 56).
The Adjudicator was persuaded by the employees’ arguments that a person’s dignity should be considered as another relevant factor. Specifically, the employees successfully argued that the continuous monitoring of their performance and conduct in the tool area caused offense to their dignity. Weighing all of the factors, the Adjudicator concluded that the employer had failed to show that the collection of employee personal information using video cameras in the tool area was reasonable in the circumstances.
In contrast, the Adjudicator concluded that the use of cameras in the office areas was reasonable outside of working hours, on the basis that there was no employee present to monitor the office areas at night. The use of cameras in the office areas during working hours was not reasonable because the intrusion into employees’ privacy outweighed the potential effectiveness of using the recordings to manage the employment relationship.
The Adjudicator also concluded that the notice requirements under PIPA had not been met and ordered the employer to notify “individuals that it will be, respectively, collecting and using employee personal information and the purposes for that collection and use” (para. 90).
2. Monitoring Software (District of Saanich)
The OIPC has also opined on the use of monitoring software.
In Investigation Report F15-015 Use of Employee Monitoring Software by the District of Saanich, 2015 BCIPC 15, the Privacy Commissioner considered whether the District, as a public body, was compliant with the Freedom of Information and Protection of Privacy Act (“FIPPA”) and specifically opined on the following issues:
1. Did the District collect the personal information of employees and citizens through its use of monitoring software? - 18 -
2. Does the District have the authority under FIPPA to collect the personal information recorded by the monitoring software?
3. Did the District notify employees of the collection of their personal information as required by FIPPA?
4. Did the District use or disclose personal information collected by the monitoring software in accordance with FIPPA?
The District had purchased a program called Spector 360, in response to an IT audit, and it collected a variety of information including:
• automated screenshots at 30-second intervals; • monitoring and logging of chat and instant messaging; • a log of all websites visited; • recording all email activity (a copy of every email is retained for 30 days); • a log of file transfer data to track the movement of files on and off the District network; • a log of every keystroke made by a user; • a log of program activity, recording which windows were open and which window had the focus of the user; • a log of when the user logged in and logged out; • tracking of every file created, deleted, renamed, or copied; and • a record of network activity including applications that are connecting to the internet, when the connections are made, the internet address they connect to, ports being used, and the network bandwidth consumed by those connections.
The software was intended, according to the applicable policy, “to ensure the security and integrity of computers for high profile individuals and protect District information from unauthorized access, theft and destruction.” Access to the data being collected only occurred if a “security event” occurred (such as unauthorized physical access to computers and technology equipment; lost or stolen computers and technology equipment; known, suspected or potential penetration and hacking; known, suspected or potential data theft; internal tampering, hacking or fraud; impersonation and social engineering; or human error), and was only available to the Manager and Assistant Manager of IT upon the agreement and written approval of the Chief Administrative Officer or the Director of Corporate Services.
While recognizing that public bodies face internal and external IT security threats, the Privacy Commissioner nonetheless concluded that the information captured through the use of Spector 360 was personal information of employees and citizens within the meaning of FIPPA. She also concluded that the collection of keystroke logs, screenshots, program activity logs, email, and user logon information using Spector 360 was not authorized by FIPPA and the notice had not been given to employees as required by FIPPA. - 19 -
In her concluding remarks, the Privacy Commissioner noted:
One of the easiest ways to ensure compliance with the requirements in FIPPA is to reduce the amount of personal information requiring protection by only collecting that which is absolutely necessary. Indeed, as has been seen in this investigation, security measures taken by the District may have resulted in a net reduction to IT security by concentrating the personal information of key employees and officers in one location, creating a “honeypot” for external attackers. It is critically important that public bodies consider both privacy and security in order to ensure compliance with provincial privacy law.
The information collected by keystroke logging and screenshot capturing will not help prevent or detect a security breach. It will only facilitate a purely reactive security strategy, helping IT staff to close security holes after a breach has already occurred; in effect closing the proverbial barn door after the horses have left. While this strategy can tell you what was stolen by an internal user, it is not an effective security control against malware or external attackers. All of the major IT threats faced by public bodies can be more effectively protected against with other more commonly used software tools.
The level of employee surveillance that results from keystroke logging and screenshot capturing should be restricted to use in specific investigations, based on reasonable grounds for suspicion of wrongdoing, and only when other less privacy intrusive measures have been exhausted.
3. GPS Tracking Devices (Schindler Elevator, KONE and TKE)
At issue in each of Schindler Elevator Corporation, 2012 BCIPC 25 (“Schindler Elevator”), KONE Inc., 2013 BCIPC 23 (“KONE”), and ThyssenKrupp Elevator (Canada) Limited, 2013 BCIPC 24 (“TKE”) was the use of GPS tracking devices. The Adjudicators were asked to determine if:
1. The data being collected by each company’s respective technologies were “personal information” within the meaning of Section 1 of PIPA. (In Schindler Elevator, the data being collected was from GPS and engine status data systems installed in company vehicles. In KONE, it was GPS information from phones which were assigned to employees by the employer, and in TKE it was GPS information from company vehicles.)
2. If so, was that personal information also “employee personal information” within the meaning of Section 1 of PIPA?
3. Does PIPA authorize the employer to collect that information?
4. Did the employer met its obligations regarding notice as required by PIPA?
In Schindler Elevator, the systems at issue were deployed to collect data that the company planned to use to “support efficient planning of service routes in conjunction with Fleet Complete….. Fleet Complete is also used to assign emergency service calls more efficiently. Schindler says its reputation depends on how quickly it can respond to emergencies where, for example, people are trapped in elevators, and Fleet Complete improves responsiveness and follow-up evaluation” (para. 15).
The Adjudicator held that the data was within the meaning of Section 1 of PIPA so then considered whether the collection was authorized. Applying a non-exhaustive list of factors (namely - 20 - sensitivity and amount of the personal employee information being collected; the likelihood of effectiveness to support the stated purpose of the collection; the availability of alternatives; the collection was not covert; and impact of the employees’ dignity), the Privacy Commissioner concluded that the collection as described was reasonable, and authorized by PIPA. Finally, she held that the obligations regarding notice of collection of personal employee information had been met.
In the companion cases KONE and TKE, the Adjudicator considered whether the collection and use of personal employee information was permitted to manage the employers’ respective employment relationships. Applying the non-exhaustive factors cited in Schindler Elevator, the Adjudicator held in both cases that the collection was reasonable.
In KONE, the purpose of the data collection was to: ensure accurate client invoicing; use the information as evidence in litigation, for client invoice disputes, and to provide client servicing records; act as a time clock for employees to verify employee attendance and payroll since KONE paid employees based on hourly rate time calculations, and used the information for “evaluating employee productivity in the same sense that attendance and work records are normally and universally used for such purposes”, including travel times between client work sites; optimize client response times, which has incidental benefits such as fuel savings, identifying when vehicle maintenance is required, and reducing carbon emissions; and quickly locate employees in the event of an accident or emergency.
In TKE, the data collection was intended to: verify employee payroll, attendance and time-keeping information for employee performance and evaluation purposes; ensure that company vehicles are only being used in accordance with TKE’s fleet policy (i.e., that the vehicle is only being used for work purposes, etc.) for employee management, including discipline; ensure that company vehicles are adequately maintained by tracking the number of kilometres a vehicle has driven since its last service visit, and having an automatically generated “alert” when a vehicle reaches a certain number of kilometres; identify and make employees aware of speeding and other similar concerns by providing an incentive for employees to drive safely; have better evidence of its mechanics’ locations at a given time to better enable TKE to respond to client complaints or billing inquiries, third party complaints, and litigation; identify inefficient service routes, so those routes can be redesigned to increase efficiency and decrease travel costs; identify the last known location of a TKE vehicle for safety purposes in the event TKE is unable to reach or respond to a mechanic in the field; and dispatch mechanics in an efficient manner, and reprioritize work assignments in a way that is advantageous to TKE and optimally responsive to its clients’ needs.
C. Labour Arbitration
1. Vernon Professional Firefighters Assn.
The reasonableness test was also applied in the labour arbitration context in Vernon Professional Firefighters Assn. v. City of Vernon, [2018] B.C.C.A.A.A. No. 81 (“Vernon Professional Firefighters Assn.”). In this case, a motion-activated covert video camera was installed in an office to catch someone believed to be stealing confidential information from the office of the Interim Fire Chief. While a thief was never caught, the covert video surveillance did capture two employees engaged in “intimate physical activity”. Following review of the video footage by Human Resources and the Interim Fire Chief, the two employees were questioned about their - 21 - conduct, and then dismissed the following day. The union grieved the dismissals and brought an application to exclude the video footage on the basis that it constituted a breach of employee privacy.
In Vernon Professional Firefighters Assn., the Arbitration Panel was required to determine if the employee personal information that was collected by the video camera was “necessary” for an investigation of employee misconduct and to manage the employment relationship. Was it reasonable, in all the circumstances, to conduct this surreptitious surveillance, and was the surveillance conducted in a reasonable manner?
The decision was not unanimous. The majority, at para. 237, held that the manner of collection was reasonable because the video surveillance footage, with no corresponding audio, was limited to capturing footage of only those people who entered the office and accessed the filing cabinet when the Interim Chief was away from his office during his non-working hours. Further,“[t]he close control and security the employer placed and maintained on the saved footage [was] not challenged” since it was regularly reviewed and deleted and access “was limited to persons with authority and responsibility to make decisions and to perform a function in relation to what was captured in the footage”.
The factors applied in this case, while not identical to those applied in Teck Coal Limited, nonetheless overlap, and included:
1. Reason for the surveillance – the basis for suspicion supporting the decision;
2. Efforts made to address the problem in other ways;
3. Availability of other sources of information;
4. Employee expectation of privacy at the time and place of the surveillance;
5. Scope of personal information collected (e.g., all employees or only employees about whom the employer has suspicion);
6. Extent of intrusion into privacy (e.g., constant or transitory); and
7. Seriousness of loss of privacy by employees captured by the surveillance.
Proportionality was an important consideration to the majority, who concluded that the triggering reason for the surveillance deserved close attention. They were persuaded by the Interim Fire Chief’s sincerely held suspicion that theft of confidential information was occurring in the workplace. The very nature of his concern limited other efforts and the availability of other information. The majority looked to the other factors and concluded at paras. 261-262: At the time of installation, it was known the surreptitious surveillance camera would capture personal information about firefighters for some of the time they performed housekeeping tasks in Interim Chief Lind’s office. It would capture one firefighter at a time, not all firefighters and likely not officers or senior firefighters. It would capture firefighters who were not union executive members and, perhaps, capture no union executive members. The personal information collected would identify individual employees in the performance of an isolated task in their work in a portion of Interim Chief Lind’s office, the time it was performed and - 22 -
the duration. It would identify their attire. All of this was incidental and unavoidable to the purpose of the surveillance.
The majority was satisfied that the covert surveillance was a reasonable collection of employee personal information with minimal invasion of employee privacy. The minority was not persuaded by the Interim Fire Chief’s evidence and found that he had not properly assessed and ruled out other methods of dealing with theft of confidential information. The minority concluded that there was no genuine or bona fide reason to use a video camera in the Interim Fire Chief’s office.
D. Key Takeaways
The cases we have summarized in this section outline a list of key factors that will be considered when a decision-maker determines whether the collection and use of employee personal information is authorized under PIPA. While each case is fact-specific, the following should be considered before deciding to use surveillance or monitoring to collect employee personal information: 1. Why collect?
• It is important to articulate the purpose of the collection. Are there less privacy- intrusive alternatives (i.e., has the employer given reasonable consideration to other methods of achieving its objectives)?
2. What is being collected?
• What is the scope of the personal information being collected (e.g., are all employees being monitored or only employees who are suspected of misconduct)?
• How sensitive is the personal information being collected?
• How much information is being collected (i.e., is the employer collecting, using or disclosing more information than is necessary to achieve its purposes)?
3. What is the impact of the collection?
• Consider the manner of collection and the use of the personal information (i.e., was the employee aware that the information was being collected, or was it covertly collected? In what circumstances and how often does the employer access the information?).
• Consider the likelihood of effectiveness (i.e., is there a reasonable likelihood that the collection, use or disclosure of personal information will fulfil the employer’s objectives?).
• Consider the extent of intrusion into privacy (e.g., constant or transitory), and the seriousness of employees’ loss of privacy due to the collection.
- 23 -
VI. Privacy and the Admissibility in Litigation of Evidence
Another issue at the intersection of privacy and employment, and closely related to surveillance in the workplace, is the admissibility in litigation of evidence acquired as a result of the breach of an individual’s privacy rights. This is an issue which has been considered in workplace litigation before the courts, workplace tribunals (the BC Human Rights Tribunal, BC Labour Relations Board, BC Workers Compensation Appeal Tribunal and BC Employment Standards Branch (together, the “Workplace Tribunals”)), and labour arbitrators. The authors will review the manner in which these different adjudicative bodies have approached this issue.
A. OIPC
The OIPC has held that a finding that evidence was “illegally obtained” (i.e., collected by breaching an individual’s statutorily conferred rights) does not necessarily lead to a finding that the evidence is inadmissible in related proceedings: Langley Cruiseshipcenters Ltd., [2006] B.C.I.P.C.D. No. 39 (“Langley Cruiseshipcenters”). The OIPC went on to comment that it has no authority to prohibit the use of such evidence in court and that a decision regarding the admissibility of the evidence lies with the court.
Even if I were to find that the materials described in this submission were “illegally obtained”, I have no authority under PIPA to prohibit their use in court in any proceedings involving the organization and the complainants. The decision as to whether any such materials are admissible in court lies with the court, not with me.
This principle is a common thread through the decisions of the courts, Workplace Tribunals and labour arbitrators: the decision regarding the admissibility of evidence lies with the adjudicative body and does not necessarily follow a finding as to whether a privacy breach occurred. Notwithstanding this similarity, there are notable differences in the manner in which the courts, Workplace Tribunals and labour arbitrators have exercised this decision-making power regarding the admissibility of such evidence.
In the remainder of this paper, the authors consider each of these adjudicative bodies in turn. In doing so, we have focused our attention on British Columbia, except to the extent developments from other jurisdictions are relevant to the discussion of British Columbia.
B. British Columbia Courts
1. Richardson v. Davis Wire Industries
For more than 20 years, the leading decision regarding the admissibility of evidence collected in breach of an individual’s privacy rights has been Madam Justice Kirkpatrick’s decision in Richardson v. Davis Wire Industries Ltd., (1997), 28 C.C.E.L. (2d) 101 (B.C.S.C.) (“Richardson”).1
1 The authors note that this decision was discussed in an excellent paper titled “Employee Privacy and the Use of Video Surveillance in the Workplace” prepared by James P. Tate for this conference in 2001. The authors wish to acknowledge Mr. Tate’s paper. - 24 -
In Richardson, the plaintiff was a non-unionized production foreman and had a clean, 16 year employment record with the employer. The employer had received reports from several employees that Mr. Richardson had been sleeping on the job. The employer responded to these reports by placing a hidden surveillance camera in the foreman’s lunch room. The surveillance occurred over four successive night shifts.
Based on the surveillance, the employer concluded that Mr. Richardson was sleeping regularly on the job and confronted him. Mr. Richardson told the employer that he had not been feeling well and denied sleeping on the job on a regular basis. The employer did not believe Mr. Richardson. As a result of the employer’s conclusion that Mr. Richardson was sleeping on the job and was dishonest when confronted, the employer terminated Mr. Richardson’s employment for cause.
Mr. Richardson commenced a claim, alleging he was wrongfully dismissed and the employer’s surveillance constituted a breach of the Privacy Act, and claiming damages, including punitive and aggravated damages. The employer sought to have the surveillance tapes admitted into evidence. The plaintiff argued that the video tapes should be found inadmissible and that the employer had committed the independent tort of breach of privacy under the Privacy Act. The plaintiff asked the Court to consider:
1. the reasonableness of requesting the surveillance;
2. the reasonableness of the surveillance itself; and
3. whether there were other alternatives open to the company to use in their investigation.
Madam Justice Kirkpatrick applied the admissibility test typically applied by the Court, finding that the tapes were relevant and not excluded by any evidentiary rule (at para. 44, emphasis added):
In my view, if the video tape evidence is probative of a matter in issue, and is made in the context of the company's legitimate right to investigate Mr. Richardson's misconduct, then it ought to be admitted.
The Court concluded Mr. Richardson could not have had an expectation of privacy and that the surveillance was reasonable in the circumstances based upon the employer’s reasonable suspicion that Mr. Richardson was sleeping on the job, and there was therefore no breach of the Privacy Act. Kirkpatrick J. nonetheless noted that a breach of the Privacy Act would not result in an exclusion of the evidence in question (at para. 48):
In respect of the issue of whether the video tapes were made in breach of Mr. Richardson’s privacy, I conclude that there was no expectation of privacy on the part of Mr. Richardson in the circumstances. Furthermore, even if he had an expectation of privacy, a breach of privacy does not lead to exclusion of the evidence in this case. The Privacy Act provides the foundation for a claim in tort and does not prohibit the admission of evidence, even it if were gathered contrary to the Act.
Kirkpatrick J. also commented on whether admitting in to evidence the video tape would bring the administration of justice into disrepute: “I cannot find that the production of the video tape in this case would bring the administration of justice into disrepute.” - 25 -
Notwithstanding this comment, ruling the evidence admissible and the surveillance reasonable, Kirkpatrick J. acknowledged policy concerns arising as a result of the methodology used by the employer:
Notwithstanding my conclusions as to the admissibility of the video tape evidence, I do wish to express my regret that Davis Wire made the choice to install the surveillance equipment in order to catch Mr. Richardson in the act of sleeping on the job. In my opinion, the surveillance of an employee in hopes of catching him or her engaging in a type of wrongdoing that, while foolish and irresponsible, would not justify summary dismissal, is itself a practice which jeopardizes the relationship of trust and confidence that is so crucial to the employer/employee relationship. It is unfortunate that Davis Wire did not attempt to solve this problem by honestly confronting Mr. Richardson once it became suspicious, and making it clear to him that sleeping on the job would not be tolerated.
2. Treatment of Richardson
In the more than 20 years since Madam Justice Kirkpatrick’s decision in Richardson, the decision has received relatively little attention. When cited by the courts, it has been cited for the principle that evidence which is relevant, and which is not excluded by any rule of evidence, is admissible. This principle was affirmed by the court in Cam v. Hood, 2006 BCSC 842 in which Brooke J. wrote at para. 8:
To the extent that the reasonable expectation of the plaintiff to privacy has been infringed, she has a remedy under the Privacy Act, R.S.B.C. 1996, c. 373, but the remedy supported under that statute does not include an exclusionary rule with respect to video or other evidence.
3. Non-Employment Law Decisions
In light of the dearth of relevant employment law decisions since Richardson, the authors considered other, non-employment, decisions to determine whether such decisions may offer additional guidance as to the manner in which British Columbia courts will treat evidence obtained as a result of the breach of an individual’s privacy rights.
British Columbia courts have most often considered this question in family law disputes.
In Mathews v. Mathews, 2007 BCSC 1825 (“Mathews”), a husband filed a petition for a declaration that his two children, aged two and four, had been wrongfully removed; their return to Australia; and a stay of his wife’s ex-parte family law proceedings. The father sought to introduce a birthday card and excerpts from his wife’s diary which contained evidence that his wife intended to end their marriage at the time she left Australia. Mr. Justice Barrow accepted that the husband’s actions in obtaining the information amounted to a violation of his wife’s privacy (para. 32).
Barrow J. then considered the authorities regarding the admissibility of illegally obtained evidence. He noted there is a limited discretion to exclude relevant evidence and, in each case, the court must assess the probative value of the evidence against its prejudicial effect (para. 43). He noted that prejudice is multi-faceted and includes: prejudice to the party opposing the admission of the evidence, prejudice to the trial process in the form of the cost of admitting the evidence, and prejudice to the reputation of the administration of justice in the form of the “odious” practice of secretly intercepting the private communications of another. He noted that this prejudice is aggravated when the privacy breach is also a criminal offense, which he found was not the case in - 26 -
Mathews. It is noteworthy, however, that Barrow J. did not find that a criminal offense will automatically render evidence inadmissible. Barrow J. also noted it is appropriate for the court when assessing prejudice to consider the prejudice that would arise by excluding probative evidence.
Applying these principles, Barrow J. admitted the evidence, concluding that the significant probative value of the evidence outweighed any prejudice caused by its admission.
In Surrett v. Butkiewicz, 2018 BCSC 1380 (“Surrett”), a family law dispute related to the division of property, one of the parties sought to introduce into evidence an illegally obtained recording of a private telephone conversation. The court balanced the probative value of the conversation. Notwithstanding the fact it was unlawfully obtained, the court admitted the recording into evidence (at paras. 15-17):
On the second issue, I agree completely with the sentiments expressed by this court in Seddon v. Seddon, [1994] B.C.J. No. 1729, that the surreptitious recording of household conversations is an odious practice that should be discouraged. It is not the case, however, that such conversations are automatically excluded. If the content of the recording is relevant to an issue in the proceeding, the identity of the speaker is known, the recording is trustworthy, and its probative value outweighs its prejudicial effect, the evidence should be received: see, amongst other authorities, B.(A.D.) v. B.(E.), [1997] B.C.J. No. 227 (S.C.) at para. 12, and Mathews v. Mathews, 2007 BCSC 1825, at para. 43.
Here we have an instance, pretty clearly, of a private conversation that was intercepted illegally. This is not to be condoned or overlooked, but it must be balanced against other factors.
The contents of the recorded conversation are directly relevant to the central issue of the case, being the nature of the claimant's relationship with the respondent. The identity of the claimant as the principal speaker on the recording is admitted. The recording, though obviously it does not capture all that was said between the claimant and her interlocutor, is trustworthy in the sense that it does not appear to have been manipulated, doctored or edited. The claimant volunteered the comments about paying rent and being a roommate in a self-evidently natural, good-natured way, sounding to my ear perhaps a little rueful, but certainly not as though she had been prompted or tricked. Her declarations were, it seems to me, spontaneous, unmannered utterances affording a reasonably clear glimpse into the state of her mind concerning her relationship with the respondent at the time the declaration was made.
Surrett and Mathews did not arise in the workplace and did not involve the interpretation of PIPA. The authors are nonetheless of the view that the decisions are of interest to employment law practitioners. Surrett and Mathews are more recent decisions (this is particularly true of Surrett) in which the BC Supreme Court considered the admissibility of evidence which was unlawfully obtained in breach of privacy rights. In the authors’ view, the decisions provide a broad indication of the manner in which the Court may consider the admissibility of information unlawfully obtained in the workplace context - albeit keeping in mind the unique policy considerations arising in the workplace which may impact the Court’s application of such principles.
4. Charter Values
The authors want to briefly comment on Charter values. Section 8 of the Charter of Rights and Freedoms protects individuals from unreasonable searches conducted by the state or an agent of the state. While the Charter is not directly applicable where a private relationship between an employer and employee is involved, there is a growing trend in employment matters, particularly - 27 - in the union context, to raise “Charter values” when dealing with the privacy issues of employees and the admissibility of evidence.
Charter values were addressed by the Court in Mathews. Mr. Justice Barrow, with reference to McLachlin J. in M.(A.) v. Ryan, (1997), 143 D.L.R. (4th) 1, noted the distinction between the Charter and “Charter values” (at para. 38):
... it is important to bear in mind the distinction drawn by this Court between actually applying the Charter to the common law, on the one hand, and ensuring that the common law reflects Charter values, on the other ...
...
The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.
Mr. Justice Barrow noted that even if the applicable common law rules were inconsistent with Charter values, he would not exclude the evidence (at para. 38):
I am not asked to determine whether the common law rules regarding the admissibility of evidence of the kind here in issue is or is not inconsistent with Charter values. Even if I were persuaded they were inconsistent with Charter values, I would not exclude the evidence.
5. Conclusion: British Columbia Courts
In his 2001 paper, Mr. Tate identified what he felt was a “policy gap” in the Richardson decision:
One can see, however, that if the plaintiff’s breach of privacy claim was found to be successful following the Court’s finding in para. 54, a potential dilemma is created for the trier of fact with respect to the admissibility of the tapes in defence of the wrongful dismissal claim. Under such a scenario, while the tapes have been obtained in an illegal manner that violates a fundamental individual right, they remain probative to the wrongful dismissal claim, and their illegal obtainment does not act as an evidentiary exclusion. There seems to be a policy gap here that leaves the employer free to justify the use of clandestine video surveillance through the discovery of conduct which is worthy of discipline. This is perhaps why there has been a growing trend in the unionized context for arbitrators to use the idea of Charter values, which provides a seemingly stronger platform from which to deal with evidence of this nature. - 28 -
In the view of the authors, to date there has not been a clear resolution to the “policy gap” identified by Mr. Tate. Despite the lack of resolution, the authors expect that the balancing approach applied by the courts in non-employment related litigation provides an indication of the manner in which such policy gap may be resolved. The authors expect that the courts will remain inclined to admit relevant evidence except in instances creating considerable prejudice.
C. British Columbia Workplace Tribunals
In this section, we discuss how the four Workplace Tribunals (defined above) have dealt with the admissibility in litigation of evidence acquired as a result of the breach of an individual’s privacy rights.
Two common threads run through the decisions of the Workplace Tribunals:
1. the Workplace Tribunals have broad discretion regarding the admissibility of evidence; and
2. to varying degrees, the Workplace Tribunals have established frameworks to be applied regarding the admissibility of evidence obtained in breach of privacy rights.
1. Administrative Tribunals Act, S.B.C. 2004, c. 45
Section 40 of the Administrative Tribunals Act provides the Workplace Tribunals broad discretion regarding the admissibility of evidence. It states:
Information admissible in tribunal proceedings
40 (1) The tribunal may receive and accept information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.
(2) Despite subsection (1), the tribunal may exclude anything unduly repetitious.
(3) Nothing is admissible before the tribunal that is inadmissible in a court because of a privilege under the law of evidence.
(4) Nothing in subsection (1) overrides the provisions of any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence.
(5) [Repealed 2015-10-18.]
This provision applies to all four of the Workplace Tribunals, granting the Tribunals discretion to admit into evidence information whether or not the information would be admissible in a court of law. This discretion applies to evidence associated with the breach of an individual’s privacy rights.
We now turn to a discussion of how the Workplace Tribunals have exercised this discretion.
2. BC Human Rights Tribunal
The BC Human Rights Tribunal (the “BCHRT”) has recognized its discretion to accept evidence that it considers necessary and appropriate, whether or not it would be admissible in a court of law. - 29 -
The BCHRT has set out the factors it will apply when considering whether to admit in to evidence information obtained in breach of an individual’s privacy rights, namely:
(a) the reliability of the recording;
(b) the circumstances of its recording;
(c) its relevance and probative value;
(d) expectations of privacy; and
(e) the degree of intrusiveness.
(See: Basi v. Saanich (District), [2019] B.C.H.R.T.D. No. 239 at para. 18 (Basi v. Saanich (District)); Barta v. Sears Canada and another (No. 2), 2010 BCHRT 289 at para. 181; Chestacow v. School District No. 63 (Saanich) and another (No. 3), 2014 BCHRT 165 at para. 35; and Li v. Mr. B, 2018 BCHRT 228 at paras. 18-25 (“Li”).)
In Basi v. Saanich (District), a workplace dispute, the BCHRT admitted into evidence surreptitious recordings of meetings between the Complainant and representatives of the District and/or his union. The BCHRT considered the surreptitious recordings necessary and appropriate in the circumstances because they were central to the issues in the complaint and there were credibility issues regarding the conversations between the complainant and the respondent.
Li was not a workplace dispute, however, the BCHRT’s analysis is nonetheless helpful in demonstrating the manner in which the BCHRT considers such matters. There was an allegation of discrimination in tenancy. The complainant sought to introduce into evidence surreptitious recordings of his conversations with the respondent. The BCHRT applied the factors set out above and admitted the evidence despite noting the “unfairness in surreptitiously recording a conversation” and the breach of privacy in doing so in someone’s home. The BCHRT noted the probative value of the recordings given credibility issues, and the centrality of the conversations in the recordings to the issues in the complaint.
Neither of these decisions dealt with evidence obtained unlawfully. In both cases, the individuals obtaining the information were acting in their personal capacity and were not subject to PIPA. Further, in both cases, the party making the recording was a party to the conversations they recorded and therefore their conduct was not illegal.
The view of the authors is that the same broad analysis would apply in situations in which the evidence in question was obtained unlawfully. The BCHRT’s decisions to date suggest the unlawful collection of evidence is likely to weigh in favour of not admitting the evidence, but would by no means be conclusive.
3. BC Labour Relations Board
These principles are less developed before the BC Labour Relations Board (the “Board”). The Board has, however, considered the admissibility of evidence obtained in breach of privacy rights. - 30 -
In IKEA v. Teamsters Local Union No. 213, [2013] B.C.L.R.B.D. No. 144 (“IKEA”), the union sought to admit into evidence still photographs pulled from surreptitious video collected by a private investigator hired by the union who attended the employer’s premises during a labour dispute. The union sought to rely on the photographs as evidence the company had hired replacement workers. The employer argued that the photographs were inadmissible as they were obtained illegally in violation of PIPA and the Privacy Act, and the common law test concerning collection and use of surveillance in the workplace.
The arguments in IKEA focused on whether the union’s actions were a breach of PIPA and the Privacy Act. The Board found the union had a right to investigate and accordingly there was no breach of either PIPA or the Privacy Act. On this basis, along with the relevance of the photographs, the Board found that the photographs were admissible.
Of interest for purposes of this paper, the Board acknowledged its broad discretion to admit evidence, while adopting the principle from the OIPC’s decision in Langley Cruiseshipcenters that information obtained in violation of PIPA may nonetheless be admissible, and that it is up to the court or tribunal in question to decide the admissibility of the information (at para. 26):
The issue in this preliminary matter is admissibility of evidence. Although the parties’ arguments were focused on whether the Union obtained the information in violation of PIPA, the ultimate decision concerning its admissibility is determined by the Board which will include a consideration of the principles and policies of the Code. As noted, by the Commissioner in Langley Cruiseshipcenters, at para. 9, even if information was obtained in violation of PIPA, the decision concerning admissibility of evidence is for the court or tribunal in question. Having said that, because the parties' arguments in this expedited matter were focused on whether the evidence was obtained in breach of PIPA, these reasons will address the issue in those terms.
4. BC Workers Compensation Appeal Tribunal
The BC Workers Compensation Appeal Tribunal (“WCAT”) has considered this issue in greater detail than the Board.
Like the other Workplace Tribunals, WCAT has recognized that it has broad discretion regarding the admissibility of evidence. It has taken a fairly broad approach to the admissibility of evidence, and this approach has extended to the admissibility of evidence which may breach an individual’s privacy rights.
In Decision Number: WCAT-2015-03320, 2015 CanLII 95938 (“WCAT-2015-03320”), a retaliatory action complaint, the worker sought to introduce into evidence three audio recordings he made of conversations with two of his former co-workers; one of the co-workers was aware that the conversations with the worker was being recorded, while the other co-worker was not. At least one of the co-workers remained in the employer’s service at the time of the hearing.
In considering the application to introduce this evidence, Vice Chair Hoole summarized the relevant decisions, including WCAT-2008-00256 and WCAT-2011-00773, and set out a two part analysis to the admissibility of a surreptitious recording (at para. 32):
1. Is the recording admissible on its face? Factors to consider here are the relevance and probative value of the recording, whether the parties are clearly identified, the circumstances surrounding the - 31 -
making of the recording, and whether in light of this information the recording is trustworthy as a whole.
2. If the first step is answered affirmatively, the second step requires consideration of whether broad policy concerns favour exclusion of an otherwise admissible recording. The cases suggest that exceptions should engage important public policy goals like promoting the welfare of children or the efficient resolution of collective bargaining disputes. Exceptions may also need to demonstrate that the parties have an ongoing relationship that engages broad public policy interests that would be impaired if surreptitious recordings were permitted. It may be that other policy grounds justify the exclusion of surreptitious recordings; however, child welfare and collective bargaining appear to be the two most common contexts in which the policy exception applies.
Applying this analysis, Vice Chair Hoole admitted the evidence. He found that the recordings were probative and reliable and did not trigger the policy concerns generally favouring exclusion of recordings. He considered the fact the co-workers were still employed with the employer and the disclosure of the recordings may place the employees in an uncomfortable position. However, he characterized this as a “personal matter” rather than “the type of important public policy concern the protection of which would require me to exclude an otherwise admissible recording.”
In WCAT-2015-03320, Vice Chair Hoole was not considering the admissibility of an unlawful recording. The individual in question was not subject to PIPA and was a party to the conversations he recorded. Accordingly, Vice Chair Hoole did not address whether evidence collected unlawfully would be admissible. The authors’ view is that the same framework would apply and that unlawfulness is unlikely to be an insurmountable bar to admissibility. The authors base this decision on WCAT’s broad approach to admissibility and on Vice Chair Hoole’s comment that “[relevant and probative] evidence should be rejected in only the most compelling circumstances” (para. 19).
5. BC Employment Standards Tribunal
The authors are not aware of any decision in which the Employment Standards Tribunal has set out a test or principles regarding the admissibility of evidence collected as a result of a breach of an individual’s privacy rights. Like the other Workplace Tribunals, the BC Employment Standards Tribunal (“EST”) has broad discretion regarding the admissibility of evidence: Kamloops Golf & Country Club v. BC (Director of Employment Standards), 2002 BCSC 1324 at para. 26.
6. Conclusion: British Columbia Workplace Tribunals
British Columbia’s Workplace Tribunals have been granted broad discretion to determine the admissibility of evidence. The Workplace Tribunals have applied this discretion with respect to evidence collected as a result of the breach of an individual’s privacy rights. While the exercise of this discretion has not been uniform across the four Tribunals, generally speaking, all of them have considered the reliability of the information in question and then balanced the probative value against the prejudicial effect. Although there is a relative dearth of decisions considering the admissibility of evidence which was unlawfully collected, it does not appear that the unlawful collection of information will be an absolute bar to admissibility.
D. British Columbia Labour Arbitration
The arena in which this topic is most developed is that of labour arbitration. - 32 -
Section 92(1)(b) of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”) grants labour arbitrators the broad discretion to receive and accept evidence “whether or not the evidence is admissible in a court of law”.
1. Arbitral Case Law
The arbitral case law regarding the admissibility of evidence collected in violation of an individual’s privacy rights is well developed and there are many decisions in which arbitrators have considered the reasonableness of workplace surveillance and the admissibility of evidence arising from that surveillance. A good summary of the development of these principles is found in Arbitrator Jim Dorsey’s decision in Vernon Professional Firefighters Assn.
As noted in Arbitrator Dorsey’s decision, in British Columbia there is now a general consensus in the arbitral jurisprudence that the admissibility of surveillance evidence is directly related to the reasonableness of the surveillance. This approach has come to be called the “reasonableness test”. Arbitrator Dorsey noted that arbitrators have recognized a higher standard of reasonableness for covert surveillance. Put another way, arbitrators will generally not admit evidence which was obtained as a result of surveillance which is found to have been unreasonable and therefore a breach of an individual’s privacy rights.
For further discussion of the approach taken by labour arbitrators in British Columbia to the admissibility of private information, the authors recommend the paper titled “Privacy Update: Labour and Employment Law” (May 2018) prepared by Keri Bennett; there, Ms. Bennett discusses the Zellstoff trilogy in which Arbitrator Robert Blasina refused to admit swipe card evidence on the basis that the use of the evidence (to prove time theft) differed from the purpose for which the technology was initially implemented.
It is noteworthy that the general approach of labour arbitration boards in British Columbia diverges from the approach of some labour arbitration boards in Ontario. The approach in Ontario has tended to be less restrictive and more akin to the approach of courts where relevant evidence should be admitted. An example of this approach is Arbitrator Ted Crljenica’s decision in Northstar Aerospace (Canada) Inc. (Burton Grievance), [2012] O.L.A.A. No. 128, where Arbitrator Crljenica disavowed the reasonableness test in favour of a relevance test:
It is my view of the law that admissibility is not the appropriate means by which an arbitrator should deal with what might be improper employer conduct. Such conduct can be dealt with as part of the final disposition of the grievance, after each party has had the right to present its case in accordance with the principles of natural justice, and the arbitrator has a full appreciation of the entire issue in dispute between the parties.
2. Conclusion: British Columbia Labour Arbitration
In British Columbia, labour arbitrators have tended to exercise the reasonableness test in which evidence will be admissible only if the process by which it was obtained is reasonable and does not violate the privacy of the employees. The approach of arbitration boards in British Columbia appears to be a more restrictive approach than that applied by the British Columbia courts or the Workplace Tribunals. The authors posit that there are a number of possible explanations for this more restrictive approach applied by arbitration boards, chief being the ongoing nature of the - 33 - relationship between the parties to labour arbitrations and the statutory framework in which arbitration boards in British Columbia operate. It will be interesting to see how this evolves.
VII. Final Thoughts
As the workplace continues to evolve and new technologies are introduced, the balancing between the employer’s right to manage the employment relationship and employees’ privacy rights will continue. The authors are of the view that privacy in the workplace will continue to be a hot topic, especially considering the growing numbers of employees working remotely, and the rapidly changing attitudes about privacy in the workplace. - 34 -
APPENDIX - RELEVANT SECTIONS OF PIPA
14 Subject to this Act, an organization may use personal information only for purposes that a reasonable person would consider appropriate in the circumstances and that
…, or
(c) are otherwise permitted under this Act.
15 (1) An organization may use personal information about an individual without the consent of the individual, if
…
(c) it is reasonable to expect that the use with the consent of the individual would compromise an investigation or proceeding and the use is reasonable for purposes related to an investigation or a proceeding,
…
(h) the use is required or authorized by law,
(j) the personal information is needed to facilitate
(i) the collection of a debt owed to the organization, or
(ii) the payment of a debt owed by the organization,
…, or
(l) the use is necessary to respond to an emergency that threatens the life, health or security of an individual.
(2) An organization may use personal information collected from or on behalf of another organization without the consent of the individual to whom the information relates, if
(a) the individual consented to the use of the personal information by the other organization, and
(b) the personal information is used by the organization solely
(i) for the purposes for which the information was previously collected, and
(ii) to assist that organization to carry out work on behalf of the other organization.
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16 (1) Subject to subsection (2), an organization may use employee personal information without the consent of the individual.
(2) An organization may not use employee personal information without the consent of the individual unless
(a) section 15 allows the use of the employee personal information without consent, or
(b) the use is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.
(3) An organization must notify an individual that it will be using employee personal information about the individual and the purposes for the use before the organization uses the employee personal information without the consent of the individual.
(4) Subsection (3) does not apply to employee personal information if section 15 allows it to be used without the consent of the individual.
...
18 (1) An organization may only disclose personal information about an individual without the consent of the individual, if
(a) the disclosure is clearly in the interests of the individual and consent cannot be obtained in a timely way,
(b) the disclosure is necessary for the medical treatment of the individual and the individual does not have the legal capacity to give consent,
(c) it is reasonable to expect that the disclosure with the consent of the individual would compromise an investigation or proceeding and the disclosure is reasonable for purposes related to an investigation or a proceeding, …
(i) the disclosure is for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of personal information,
(j) the disclosure is to a public body or a law enforcement agency in Canada, concerning an offence under the laws of Canada or a province, to assist in an investigation, or in the making of a decision to undertake an investigation,
(i) to determine whether the offence has taken place, or
(ii) to prepare for the laying of a charge or the prosecution of the offence,
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(k) there are reasonable grounds to believe that compelling circumstances exist that affect the health or safety of any individual and if notice of disclosure is mailed to the last known address of the individual to whom the personal information relates,
(l) the disclosure is for the purpose of contacting next of kin or a friend of an injured, ill or deceased individual,
(m) the disclosure is to a lawyer who is representing the organization,
(n) the disclosure is to an archival institution if the collection of the personal information is reasonable for research or archival purposes,
(o) the disclosure is required or authorized by law, or
(p) the disclosure is in accordance with sections 19 to 22.
(2) An organization may disclose personal information to another organization without consent of the individual to whom the information relates, if
(a) the individual consented to the collection of the personal information by the organization, and
(b) the personal information is disclosed to the other organization solely
(i) for the purposes for which the information was previously collected, and
(ii) to assist the other organization to carry out work on behalf of the first organization.
(3) An organization may disclose personal information to another organization without consent of the individual to whom the information relates, if the organization was authorized by section 12 (2) to collect the personal information from or on behalf of the other organization.
(4) An organization may disclose personal information to another organization, or to a public body, without consent of the individual to whom the information relates, if
(a) the personal information was collected by an organization under section 12 (1) (k) or (l),
(b) the disclosure between the organizations, or between the organization and the public body, is for the purposes for which the information was collected,
(c) the disclosure is necessary for those purposes, and
(d) for each disclosure under this subsection, the third party referred to in section 12 (1) (k) or (l), as applicable, consents to the disclosure.
- 37 -
19 (1) Subject to subsection (2), an organization may disclose employee personal information without the consent of the individual.
(2) An organization may not disclose employee personal information without the consent of the individual unless
(a) section 18 allows the disclosure of the employee personal information without consent, or
(b) the disclosure is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.
(3) An organization must notify an individual that it will be disclosing employee personal information about the individual and the purposes for the disclosure before the organization discloses employee personal information about the individual without the consent of the individual.
(4) Subsection (3) does not apply to employee personal information if section 18 allows it to be disclosed without the consent of the individual.