Privacy law is still a nascent area of law in Canada. The Supreme Court of Canada case of R v Jarvis (“Jarvis”)—while decided in the context of section 8 of the Canadian Charter of Rights and Freedoms and the application of Criminal Code provisions—underscores some important concepts that could be imported to the employment context.
Privacy legislation in Canada is often described as a patchwork system with statutory approaches varying in each province. Rather than detailing the various legislative contours or common law obligations in each specific province, this article focuses on a practical approach that employers may take in light of Jarvis and existing case law to inform implementation of surveillance technologies in a manner that recognizes employee privacy interests. Naturally, employers must still be aware of and comply with applicable privacy legislation.
Workplace surveillance can come in many forms, and can include video recordings, GPS surveillance, monitoring email and internet usage, thermal cameras, and smartphone apps for contact tracing. This raises key questions and areas of risk for employers regarding the collection of the data, how it is stored, as well as how, when, and by whom it may be accessed.