Workplace Privacy

Workplace Privacy

The information provided on this webpage is of a general nature and does not constitute legal advice. Moreover, it addresses only some issues in information privacy, labour and employment law. If you have questions about privacy and your workplace, you should consult a lawyer, your union representative, or the human resources department of the organization you work for. For general information on private sector data protection laws, see CIPPIC's webpage on Privacy. CIPPIC welcomes feedback and comments on this webpage at cippic@uottawa.ca.

The information on this webpage is current as of May 2007.

Introduction

The workplace presents particular challenges to individual privacy for a number of reasons, including the power imbalance between employer and employee, the increasing technological capabilities of employers to monitor employee activity, and the strong incentives for employers to collect and use employee personal information for employment-related purposes, enhanced productivity, and reduced liability. Throughout these FAQs, we cite key privacy findings from privacy commissioners, courts and labour arbitrators. Although the findings of privacy commissioners are important in determining legal rights and remedies, they do not always have the same legal consequences as a decision of a court of law. In particular, the federal Privacy Commissioner's findings under PIPEDA and the federal Privacy Act are not legally binding. In contrast, rulings by the Alberta, B.C., and Quebec Privacy Commissioners do have legal force in those jurisdictions. Privacy commissioner rulings in one jurisdiction are not binding on another. However, findings and decisions by privacy commissioners do carry weight and offer considerable guidance across sectors and jurisdictions when workplace privacy cases arise.

F.A.Q.

Contents

Do I have a right to privacy in my workplace?

Employees have privacy rights vis-a-vis employers, but these rights are not absolute.  Some arbitrators have recognized an inherent right to privacy on the part of individual employees, but this view is not universally accepted.  In any given situation, an employee's right to privacy will be weighed against the employer's legitimate business needs, taking into account such factors as:

  • applicable contractual provisions (e.g., in collective agreement or employment contract)
  • applicable statutory provisions (varies by jurisdiction)
  • reasonableness of the employer's rationale for the activity in question
  • reasonableness of the employee's expectation of privacy in the circumstances
  • adequacy of notice to employees of general policy that invades privacy
  • whether the invasion of privacy is surreptitious (if so, the threshold for justification is higher)
  • the nature and extent of privacy loss suffered
  • whether there are less invasive means of achieving the employer's goal
  • whether the loss of privacy is proportional to the benefit gained thereby.

1. What legislation protects public sector workers?

If you work for the government, a governmental agency, or a public institution such as a school board, university, college, or public library, your personal information is likely protected by public sector privacy legislation. Each government in Canada, federal and provincial, has legislation governing what it can and cannot do with your personal information (see list of legislation below). Municipal employees are regulated by provincial legislation. Saskatchewan, Ontario and Nova Scotia have specific legislation that pertains to municipal workers. These statutes usually list, in a schedule, the agencies and public institutions to which they apply.

Federal Public Sector Privacy Legislation:

Privacy Act, R.S.C., 1985, c. P-21.
Schedule of Federal Government Institutions that are covered by the Privacy Act.

Provincial Public Sector Privacy Legislation:

Alberta: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25

British Columbia: Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165.

Manitoba: The Freedom of Information and Protection of Privacy Act, C.C.S.M. c. F175.

New Brunswick: Protection of Personal Information Act, S.N.B. 1998, c. P-19.1.

Newfoundland: Access to Information and Protection of Privacy Act,S.N.L. 2002, c. A-1.1.

Northwest Territories: Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c. 20.

Nova Scotia: Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, and Part XX of the Municipal Government Act.

Nunavut: Access to Information and Protection of Privacy Act,R.S .N.W.T. 1994, c. 20.

Ontario: Freedom of Information and Protection of Privacy Act, R.S.O. 1990, F.31, and Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

Prince Edward Island: Freedom of Information and Protection of Privacy Act, R.S.P.E.I. 2001, c. F-15.01.

Quebec: An Act respecting access to documents held by public bodies and the protection of personal information, R.S.Q., c. A-2.1.

Saskatchewan: Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01 and The Local Authority Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. L-27.1.

Yukon: Access to Information and Protection of Privacy Act, R.S.Y. 2002, c. 1.

Public sector employers are also subject to the Canadian Charter of Rights and Freedoms, which includes guarantees against "unreasonable search and seizure", subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".  While there is no right to privacy per se in the Charter, the Supreme Court has found that section 8's freedom from unreasonable search and seizure is based on individual's "reasonable expectations of privacy".Both public and private sector employers are subject to Human Rights legislation, which applies to such privacy issues as mandatory drug and alcohol testing of employees.  Each jurisdiction (federal, provincial, territorial) has its own human rights legislation.

2. What legislation protects private sector employees?

The personal information of private sector workers is not uniformly covered by privacy legislation across Canada. As of March 2007, only those companies that are federally regulated or provincially regulated in Alberta, B.C., or Quebec, are subject to data protection laws in Canada. Federally regulated employers are subject to the Personal Information Protection and Electronic Documents Act, R.S.C. 2000, c.5 (PIPEDA), while employers in Alberta, B.C., and Quebec are subject to those province's data protection laws (see list of legislation below). The private sector privacy legislation in Alberta and B.C. contain specific provisions that define "employee personal information."

Private sector employers are also subject to Human Rights legislation, which applies to such privacy issues as mandatory drug and alcohol testing of employees.  Each jurisdiction (federal, provincial, territorial) has its own human rights legislation.

As in the case of public sector employees, unionized workers in the private sector may have further protection by way of provisions in their collective agreements. Individual employment contracts may also contain provisions that protect employee privacy.

Private Sector  Privacy Legislation:

Federal: Personal Information Protection and Electronic Documents Act, R.S.C. 2000, c.5 (PIPEDA),

Alberta: Personal Information Protection Act, S.A. 2003, c. P-6.5.

British Columbia: Personal Information Protection Act, S.B.C. 2003, c. 63.

Quebec: Civil Code of Québec, S.Q., 1991, c. 64, articles 35 to 41 and 1525 and An Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q., c.P-39.1.

 

3. How do I know if my employer is federally regulated?

If you work in an industry that is regulated by the federal government, you work for a federally regulated employer. Examples of federally regulated employers are: