|Journal||Canadian Labour and Employment Law Journal|
This paper explores what the author sees as two important trends in recent privacy law decisions by Canada's highest courts, and considers the implications of those trends for privacy rights in the workplace. The first trend the author argues, is a clear affirmation that employees have a reasonable expectation of privacy in the workplace - an expectation that is inherent in an individual's human dignity and autonomy, and that does not need to be expressly bargained or negotiated. As a result, it can no longer be maintained, as some adjudicators did, that there is no juridical basis in the common law on which to ground a right to privacy. The second trend is an increasing recognition of a right to informational privacy (as distinct from a right to bodily or to territorial privacy), understood as an individual's ability to control how information about him or her is communicated to others. As the paper explains, questions about the protection of informational privacy in the employment context have been brought to the fore by the prolhferation of information technology in the workplace, and by the increased blurring of lines between employees' professional and private lives. The author concludes that, going forward, the challenge will be to define more precisely the scope of employees' rights to privacy, particularly in relation to the employer's legitimate operational interests, and to determine appropriate remedial responses in the event of a breach of such rights.