|Journal||Canadian Labour and Employment Law Journal|
This paper provides a comprehensive overview and analysis of the Canadian law governing employer surveillance of employees. Reviewing the arbitral jurisprudence as well as the jurisprudence under federal and provincial privacy legislation, the authors trace the development of a broad convergence in the principles that courts and adjudicators will apply in surveillance cases. That convergence reflects a wide acceptance of what the authors refer to as the reasonableness paradigm - an approach which recognizes that the employ- er's interest in managing the workplace must be balanced, in a proportionate way, against the employees' interest in privacy. The authors point out that the reasonableness paradigm is generally being followed in cases involving video surveillance of employees, both on-site and off-site, and monitoring of employ- ees' computer use at work. However, they emphasize, it is not being followed in the context of employees' off-duty, off site activities online, such as Facebook postings and blogs. The authors challenge the suggestion that those activities are intrinsically "public" rather than private, and that employees who engage in them should essentially be considered to have forfeited any privacy protection. In their view, the values which underpin privacy rights may well be implicated by employees' online activities outside the workplace. Accordingly, they argue, the approach taken in such cases should be brought into line with the principles of reasonableness and balancing usually applied to other types of work- related electronic surveillance.