Can an Employer Use for its Own Purposes the Information Stored in its Employee’s Personal Email Box?

As everyone knows, an employee often benefits from the use of technology tools supplied by the employer for work purposes, namely a computer, a digital tablet and a cell phone. The employer allows their use during work hours for all types of communications, both for professional or personal affairs.

In this regard, company policies frequently allow an employee to make reasonable personal use of informational tools supplied by the employer in the course of its employment. However, is the information stored therein considered as strictly personal or, in certain circumstances, can the employer access and use it for its own purposes?

The Superior Court decision in Pneus Touchette Distribution inc. v Pneus Chartrand gives us a certain insight into this issue. The facts of the case are as follows:

Pneus Touchette alleges that Mr. Campeau, when he was in its employ, forwarded confidential information to his new employer, said information being the property of his former employer.

Following Mr. Campeau’s departure to work for a competitor, the employer was able to uncover Mr. Campeau’s personal Hotmail password.  He then discovered the employee had forwarded Pneus Touchette documents through his Hotmail account. The employer filed a Breach of Loyalty claim against its former employee and, as supporting evidence, wanted to produce the information obtained by looking into its former employee’s personal email box. Objections to the evidence were raised by the former employee to prevent admissibility of the computer report relating to the emails on the grounds of violation of privacy issues.

The Court then examined whether this violation of privacy, namely the use of data contained in the personal email address of its former employee, would bring the administration of justice into disrepute. Addressing this issue, the Court determined that Pneus Touchette “had a legitimate concern in wanting to examine the contents of Mr. Campeau’s email box”. The Court stated “since Mr. Campeau forwarded the emails in question while at work, he could not reasonably expect his communications to remain private”.

The Superior Court also recognizes the relevance of the evidence since the employee denied having forwarded information to his new employer while the latter admitted having received it. This evidence became essential in distinguishing between truth and falsehood. In light of this conflicting evidence, the Court decided the administration of justice would be in disrepute should the email evidence be suppressed.

This case seems to be consistent with the decision rendered by the Superior Court in the matter of Images Turbo inc. v. Marquis, 2013 QCCS 2781. The facts are substantially the same. Following the departure of an employee, the employer took back the Blackberry it had provided for the employee. While clearing out the stored data, the employer discovered the employee had forwarded confidential information to a competitor, for whom she wished to work for, through her own personal address. The employer then initiated proceedings against its former employee and wanted to submit as evidence the discovered emails. The employee objected to this on the grounds of violation of her privacy since she had used her personal address.

The Court dismissed most of her claims. It deemed the employer had not devised a strategy to access the email box since there was no password to prevent third parties from accessing it. It also takes into account that she used both her personal (@live.ca) and the company’s email addresses to communicate with the clients as well as her cell phone which was owned by the company. Finally, it concluded that administration of justice would be in disrepute should the emails written during her employ be suppressed since they constitute significant evidence for the Court in determining the truth. However, the emails written by the former employee, while using her personal address after she had left the company, were suppressed.

These two rulings allow us to build on certain statements issued by the Supreme Court in the matter of R. c. Cole (2012 SCC 53) whereby, within the context of criminal charges, there was discussion of policies relating to employer-owned informational assets and information proprietorship that is stored in the devices provided for the employees. The Court writes:

[53] Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy. Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation (R v. Gomboc 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, per Deschamps J.). (Emphasis added)

Thus, the context in which the information is stored in an employee’s cell phone or computer is very significant. Although everyone has an expectation of privacy while at work, it may be reduced depending on the operational reality of the company. Therefore, even if the subjective expectation of privacy is obvious, it can be deemed as unreasonable in certain circumstances. For example, if the employer’s policy with respect to informational assets provided to the employee foresees the employer will retain ownership of the tools and of all information contained therein, the expectation of privacy must be deemed as reduced without being cancelled out. If the employee, during its work hours, transfers confidential information to a third party in breach of its employment contract, if access to its personal email has not been blocked to indicate it is a personal matter, it would appear that in the analysis of the circumstances of the issue, a Court would deem the operational reality reduces the reasonable expectation of privacy.

We also conclude from the foregoing that the Court’s pursuit of truth often leads it to conclude that, in such circumstances, achieving a reasonable right to privacy does not preclude the administration of justice. Finally, we believe it is extremely prudent for an employer to adopt and disseminate a policy with regard to its informational assets.  Although imperfect, it constitutes a useful insurance policy against possible employee abuses or violations of their duty of loyalty.