"Private" e-mail not that private

Ryan Berger SPECIAL TO THE JEWISH BULLETIN

You've decided you want to look for a new job opportunity and you use your e-mail at work to contact a potential employer. You save the e-mail in a folder marked "personal." Does your current employer have a right to look into that folder, knowing it's not work-related?

What if you've been doing a little Web surfing? Even if you are sitting in the privacy of your office, is your boss allowed to access the server and sneak a peek to see where you've been on the Internet?

The answer is yes.

And more and more companies are monitoring employees' computer habits in the workplace, including personal e-mails and Internet use. Usually, the reason the company does the monitoring is due to productivity and liability concerns.

But aren't the employee's personal e-mails private?

In Canada, there are no laws that expressly address whether employees have privacy rights for the e-mails they send or receive through their work computers. As a result, the information that is passed through computers that are owned by the company may be construed as belonging to the company. Further, the nature of e-mail, which can easily be forwarded and distributed to others, might prevent any claim to privacy. Even when you delete an e-mail or a file from a computer, it is often easy to find and recover. E-mail does not carry the same privacy protections as letter mail.

In a recent British Columbia Supreme Court case, the business manager for 20 years at the Douglas College Student Society sued the society for wrongful dismissal. The society said that it had cause for the dismissal because the business manager had not advised the society about her knowledge of some thefts which had allegedly been committed by other employees. As evidence against the business manager, the society used personal e-mails sent by the business manager to friends discussing the thefts. The Supreme Court said that the e-mails, which had been taken off the computer that the business manager had used, were evidence that the business manager was dishonest and unfaithful to her employer. The court relied on them to determine that the society had cause to dismiss the business manager.

Some U.S. courts have determined that inappropriate files and e-mails are also grounds for an employee's dismissal. Even where the company had assured employees that e-mail communications would remain confidential and would not be intercepted and used against employees, or where employees accessed personal folders though private passwords, U.S. courts have found that employees have no reasonable expectation of privacy and upheld the employers' basis for dismissal.

Employers, though, do not have an open door to pore over every e-mail from every employee. Employers have to be careful that monitoring is not so intrusive to be offensive in the eyes of a court. Further, the federal privacy commissioner has said that employee monitoring should be proportionate to the purpose. Companies can develop policies for acceptable use and determine the proper scope of monitoring to clarify any expectation of privacy.

Don't cross the line

A driver "rolls forward" into a crosswalk while waiting for a stale red light to turn green. Suddenly, "flash-flash," the red-light camera catches him in the act. This was the story of the defendant in a recent dispute to a ticket issued by one of the new red-light cameras going up at intersections throughout the province. How many times have you done the same thing and rolled ever so slightly forward anticipating the light change?

This case had caught my attention because the evidence for the Crown was a photograph, which showed that the defendant had not entered the intersection until the red light was more than 20 seconds old. Having heard that, I expected some story to come out about how the defendant had run the red light because he had been drinking or he had not been paying attention for some other reason. Instead, the defendant explained to the court that he had been waiting for the red light to change and, in anticipation, he started rolling forward. The defendant explained that, once he saw the flashes of the camera, he backed up, and that he had not proceeded through the intersection until the light turned green. The defendant argued that, while he had rolled into the crosswalk, he had not proceeded through the intersection and should not be convicted of the offence.

After hearing testimony, the court politely explained that the Motor Vehicle Act requires that the driver of a vehicle stop before entering the marked crosswalk on the near side of the intersection or, if there is no marked crosswalk, before entering the intersection and (except in the case of a right turn) must not cause the vehicle to proceed until a traffic control signal instructs the driver that he or she is permitted to do so. Since the camera had caught the defendant's vehicle in the marked crosswalk, the defendant was guilty of the offence.

Ryan Berger is an associate practising commercial litigation with the firm Bull, Housser & Tupper. The contents of this article are for information purposes only and should not be construed as legal advice.

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