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Canadian Association of Counsel to Employers posts factum in SCC case concerning privacy, work computers

The Canadian Association of Counsel to Employers (CACE) is an association of management-side labour and employment lawyers across Canada that was created in 2004.

In  a news release issued today, it announced it is intervening before the Supreme Court of Canada in the R v. Cole case. The release states as folllows:

In a case involving a teacher and nude sexually explicitly images of a grade 10 student, the Canadian Association of Counsel to Employers (CACE) has intervened before the Supreme Court on the case, R. v. Cole, on the issue of privacy and work computers.

"This is more than a criminal case because the Court will be asked to weigh competing employer and employee interests. It has the potential to answer some very important questions for employers who are not already regulated by privacy legislation," said Daniel J. Michaluk, a Partner at Hicks Morley who has been retained by CACE to represent it on this matter. "Among the questions needed to be answered are; when does personal use invite a reasonable expectation of privacy? Can employer policy reduce or eliminate that expectation? And if an employee does have a reasonable expectation of privacy what rights do employers retain?"

CACE will make representations to help the Court make a sound decision for employers that rests on a full understanding of the function and significance of a work information system. It will argue:

  • A work computer is part of a system and not a personal storage device,
  • A work information system serves a critical business function,
  • A work information system is a repository of information that must be secured, and
  • Employers need a broad and clear right of access to information on their system.

"Canadian employers, large and small, are routinely faced with the question of privacy as it relates to computers that are part of the employer's networks but are used by employees," said Andrew Finlay, Chair of CACE's Advocacy Committee. "We are hopeful that this case will ensure employers have continued access to the information they need and clarify expectations for the many employees who use work computers and electronic devices for personal purposes."

A copy of the CACE factum can be found on its website here.

My April 6, 2011 post on the Ontario Court of Appeal's decision under appeal can be found here.