Chad Sullivan

A recent labour arbitration decision (Canadian Broadcasting Corp. and Canadian Media Guild (Khan), Re, 2021 CanLII 761) provides another example of how privacy law continues to evolve and can directly impact the outcome of labour arbitrations (in that case – a claim of unjust dismissal).

Employers should ensure their policies respect the current state of the law – while also ensuring their employees’ expectation of privacy on employer-owned equipment is kept in check. This case also provides some valuable insights for employers faced with investigating situations involving employer-owned electronics.

Facts

Mr. Ahmar Khan commenced working for CBC when he was 23 years of age, in November 2018, as a reporter/editor based in Winnipeg. He was hired to temporarily fill a maternity leave.

Mr. Khan took offence to Don Cherry’s statements on Remembrance Day in 2019 which lead to his dismissal from Hockey Night in Canada.

Mr. Khan tweeted about the event the same day as Don Cherry’s comments, stating:

It it (sic) long due time for Don Cherry’s Coach’s Corner to be cancelled.

His xenophobic comments being aired weekly are deplorable.

You know why black and brown kids don’t enjoy hockey? Because of the deep-rooted racism, which we get to hear EVERY SINGLE WEEK on national TV.

Mr. Khan’s tweet spread quickly, and by the next afternoon had accumulated more than 4,000 likes, had been retweeted more than a thousand times, and had attracted nearly 400 comments.

The tweet was also quoted in an article by the Toronto Sun – identifying Mr. Khan as a CBC reporter.

CBC told Mr. Khan to remove his tweet – taking the position that the tweet violated CBC’s policies on reporters expressing opinions, as contained in CBC’s Journalistic Standards and Practices.

CBC ultimately decided not to discipline Mr. Khan over the tweet – believing he understood that he had violated CBC policy.

Mr. Khan removed the social media post, but then covertly alerted MacLean’s magazine and Canadaland (a website and podcast) about CBC requiring him to delete the tweet. Mr. Khan used a shared CBC laptop for these secret communications.

Later that month, Mr. Khan covered the celebrations after the Winnipeg Blue Bombers won the Grey Cup.

He was using one of several CBC laptops – shared amongst reporters. Mr. Khan left the laptop in the newsroom, leaving it on his desk without logging out of his Twitter and WhatsApp accounts.

A colleague (a bargaining unit member) took the laptop and notified management that he found unethical material on the laptop – citing the contact with Canadaland. The colleague stated that the material was visible to him because the programs were open. The colleague sent some of the messages to management and management then after took screenshots of other messages.

Management testified that the consensus was, with respect to Mr. Khan’s privacy, that they had no choice but to confirm the material that was already sent to management by the bargaining unit member, and there should be no expectation of privacy on a shared laptop.

In addition to the communications with McLean’s and Canadaland, there were several private messages captured during the employer’s investigation between Mr. Khan and his friends over WhatsApp – some of them critical of CBC and some of them “charitably described as nonsense banter.”

CBC fired Mr. Khan for cause on the basis that he violated the requirement of loyalty to his employer and placed CBC’s reputation at risk. CBC did not impose discipline for the tweet about Don Cherry, but did take objection to Mr. Khan drumming up disparaging stories about CBC with other news media outlets.

The termination letter also referenced Mr. Khan making disparaging remarks about CBC management and using a homophobic slur in a conversation with a friend on WhatsApp.

Mr. Khan filed a grievance for unjust dismissal.

The Collective Agreement’s wording was somewhat unusual on the issue of privacy, providing arguably more privacy rights than is typical in Collective Agreements, stating: “employees have the right to work in an environment that respects their personal privacy.”

Arguments

CBC argued that Mr. Khan’s privacy was not violated, as he used a shared laptop at his own risk in a situation where there was diminished or no expectation of privacy.  Further, a bargaining unit member brought the information to management about the messages on Mr. Khan’s Twitter and WhatsApp accounts, and management was entitled to investigate once the information was brought to its attention. Mr. Khan was careless enough to leave those accounts accessible, and the consequence was that another employee was able to view the contents and make management aware of the offending messages.

The union argued that Mr. Khan had a reasonable expectation of privacy to the messages on his work laptop and CBC breached his right to privacy in searching his laptop. Therefore all evidence of the contents of the messages should be deemed inadmissible.

R v. Cole

The union cited R v. Cole, a 2012 Supreme Court of Canada decision that is now often referenced in labour arbitrations.

R v. Cole was a criminal case, involving a high school teacher charged with possession of child pornography. Like many employees, Mr. Cole was permitted by his employer to use his work-issued laptop for incidental personal purposes.

While performing maintenance activities, a technician found a folder containing nude photographs of an underage female student. The technician notified the principal and copied the photographs to a compact disc and handed the laptop and disc over to police.

The police reviewed the contents and made a copy – without first obtaining a warrant.

The Supreme Court held that the police infringed Mr. Cole’s s. 8 Charter rights (right to be secure against unreasonable search or seizure) but permitted the evidence to be admitted at trial under s. 24(2) of the Charter (where the admission of the evidence would not bring the administration of justice into disrepute).

In doing so, the Supreme Court of Canada held, in determining whether someone has a reasonable expectation of privacy, who owns the computer (in that case the school), is not necessarily determinative – although such factors may diminish an employee’s expectation of privacy.

The case was specifically limited to the criminal law issue of a police search, and the Supreme Court explicitly left for another day the finer points of an employer’s right to monitor computers issued to employees.

In the nearly decade since R v. Cole, labour and employment lawyers have grappled with whether, and to what extent, the decision should influence privacy law issues in the workplace.

Arbitrator’s Slotnick’s decision

Arbitrator Slotnick, relying on R v. Cole, held that Mr. Khan had a reasonable expectation of privacy to his work laptop – despite the fact that it was owned by the employer, was shared with other employees, was left unattended, etc.

Further, Arbitrator Slotnick emphasized the unusually high premium placed on privacy in the parties’ Collective Agreement.

Arbitrator Slotnick further held that any search by the employer had to be reasonable.

For example, would a less intrusive means have accomplished the same goals in this case (e.g. interviewing Mr. Khan) or was the search limited to only that what was necessary (i.e. if the main concern was Mr. Khan covertly alerting other media outlets – perhaps it was unreasonable to look at other private conversations between him and his friends)?

Some previous labour arbitration decisions had dealt with the issue of privacy as a preliminary matter – considering whether the employee’s privacy was breached, and if so, whether any evidence obtained by that breach should be excluded.

However, whereas the union in this case did not raise the admissibility of the evidence until its closing argument, the arbitrator did not consider its admissibility. Instead, Arbitrator Slotnick concluded that the violation of Mr. Khan’s privacy “tainted the entire process that led to the termination of his employment.”

The arbitrator ultimately concluded that Mr. Khan’s actions, in leaking the story covertly to other news media outlets was at most a minor indiscretion – overshadowed by the breach of privacy committed by CBC to uncover that activity.

The arbitrator ordered reinstatement – but only for four months (being the remaining term of his contract).

Further, the arbitrator concluded: Mr. Khan’s privacy rights were breached and this breach of his rights requires a remedy. He is entitled to damages.”  The arbitrator invited further submission on the amount of damages. As of the date of this article, there does not appear to be a published decision on the amount of damages.

While the above quoted statement may seem self-evident, it is arguably, at least on its face, contrary to the majority of the law on this subject (i.e. the law of damages flowing from a breach of privacy).

With respect to privacy breaches, it is well known, to the extent there may be an actionable wrong for invasion of privacy, it is pursuant to the tort of “intrusion upon seclusion” as defined by the Ontario Court of Appeal in 2012 in Jones v. Tsige.

In that case (involving a bank employee accessing the records of her ex-husband’s new partner 174 times), the tort was clearly circumscribed as requiring:

1. The Defendant’s conduct must be intentional;
2. The Defendant must have invaded, without lawful justification, the Plaintiff’s private affairs or concerns; and
3. That a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.

Further, the Ontario Court of Appeal held that the upper end of such damages should be $20,000 (the Court awarded $10,000 in that case).

Given the test set out above, it is clear that damages do not typically follow once an individual has proven some sort of breach of their privacy. Rather, there are certain (high) thresholds to meet in order to obtain damages.

Perhaps the breach of privacy in this case was grounded in contract (i.e. the Collective Agreement) and not tort law. The decision on damages may very well clarify this aspect of the decision.

Key takeaways

The implications of privacy law continues to evolve as it applies in the labour relations context and can have a significant impact in labour arbitrations by, potentially:

1. leading to the exclusion of evidence – including the evidence on which an employer relies upon for just cause for discipline;
2. leading to a finding that disciplinary action taken by an employer was tainted by the breach of privacy;
3. resulting in an award of damages; and/or
4. resulting in a decision finding that an employer has breached a privacy law statute.

Employers are encouraged to obtain legal advice on their computer use policies, and whenever investigating a situation involving an employee’s use of its electronics.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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