Ontario proposes rules for employers who watch workers

By Tony Poland, LegalMatters Staff • Employers will have another reason to update their policies after the Ontario government proposed legislation requiring the disclosure of workplace electronic monitoring, says Toronto employment lawyer Ellen Low.

Low, principal of Ellen Low & Co., says the plan comes on the heels of the Working for Workers Act, 2021, which includes the right to disconnect and a ban on the use of non-compete clauses. 

The proposed amendment still has to be passed and there few details on how it will work, she says.

“We have had four new employment policies from the province in a relatively short period of time,” Low tells LegalMattersCanada.ca. “It is difficult to give employers any sort of concrete guidance on this right now because all we really know is that it is going to be a policy you have to put in place if you have more than 25 employees.”

The proposed amendment to the Employment Standards Act, 2000 would require employers to inform workers if they are being electronically monitored. They would also have to provide a description of how the monitoring is conducted and in what circumstances it is done. As well, the employer would need to disclose the purpose of collecting information.

Ontario would be first province to require monitoring policies

The province states that if it becomes law, “Ontario would become the first province to require electronic monitoring policies and protect workers’ privacy by requiring employers to be transparent on how employees’ use of computers, cell phones, GPS systems and other electronic devices are being tracked.”

“Today, businesses have more ways than ever before to monitor where their workers are and what they are doing. Whether you are a delivery person being followed by GPS, a construction worker using a company phone, or an office worker logging in from home, you deserve to know if and how you are being tracked,” says Monte McNaughton, Minister of Labour, Training and Skills Development. “The future of work is changing, which is why our government is leading the country to ensure workers remain in the driver’s seat.”

Low says the coronavirus pandemic has led to a number of legislative changes in employment law so she is not surprised by this latest proposal. 

“It is an interesting idea. I can understand with the rise of work from home that people are concerned about electronic surveillance,” she says. “But let’s be clear, privacy and surveillance is not a new legal issue for the employment law bar. This was a hot topic around the time of installation of GPS and other devices in cars to measure distance, fuel use, unsafe speed and route.”

Low explains “a whole series of decisions” followed laying out employers’ rights and responsibilities. 

She points to Colwell v. Cornerstone Properties Inc., a 2008 decision which saw a woman sue for constructive dismissal after her employer installed a hidden camera in her private office, which court was told was an effort to detect theft by the maintenance staff. 

Violation of the implied contractual term of employment

While not addressing the issue of whether video cameras are permitted in the office, court found the placement of the hidden camera coupled with the “totally implausible explanation” given by the employer for its use violated the implied contractual term of employment that “each party would treat the other in good faith and fairly.”

“The cost to human dignity caused by such surveillance, coupled with the unbelievable explanation subsequently provided, left (the employee) in a position of being unable to rely upon the honesty and trustworthiness of her immediate supervisor, and amounted to more than merely ‘bad faith’ and ‘unfair dealing,’” writes Justice T. D. Little.

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In a decision from February, 2018, court ruled found no issue with video cameras in the office when the employee was aware they are being used. In Rouse v. Drake & Drake, the employee made her dislike for the cameras known and court found “deliberately manipulated” them. 

Low says there are cases when video evidence from the cameras would be acceptable.

“When there was evidence of misconduct or even theft, it is really difficult for the behaviour to be ignored or condoned by the Ontario Labour Relations Board,” she says. “In a unionized context, arbitrators accepted that they would let employers rely on what was relevant and accurate GPS data as evidence in termination proceedings. 

“There has been a right to privacy in the workplace’

“The other thing to remember is that for quite some time, there has also been a right to privacy in the workplace. And that’s particularly so when it is related to some sort of workplace performance or the use of company assets.” 

While Low says she is curious to see how the proposed change will play out, it is a positive development “in terms of letting employees know that their employer is planning to track their movements and will be using some type of surveillance within the organization.”

“Some workers may be a little surprised to learn that they have in fact been subject to some type of surveillance,” she says.

Low says the change could provide employees with insight about what kind of information is being collected and why.

“If you are working from home, for example, how long are you required to be on Zoom before it is considered an invasion of your personal privacy? There has already been some discussion with respect to that,” she says. “It seems the prevailing thought is that if it is reasonably necessary, then that is acceptable. But I believe most people would be very reluctant to have a mandatory cameras-on policy.”

Employers will have to be careful when drafting their surveillance policy, Low says.

“Let’s say the employer comes up with a policy and it is disclosed that a worker was being monitored in ways they did not expect. That could give rise to a wrongful dismissal lawsuit,” she says. “Those who are concerned about any sort of invasion of their privacy might want to consult a lawyer to canvas their rights. If an employee is really uncomfortable with what is contained within that policy, they should seek advice about whether it is reasonable and necessary.