Privacy in the Workplace: What Ontario Employers Need to Know

York Region District School Board v. ETFO: What the 2024 SCC Privacy Ruling Means for Ontario Employers

Owning the device does not mean owning everything on it. The Supreme Court of Canada's unanimous 2024 decision in York Region District School Board v. Elementary Teachers' Federation of Ontario (2024 SCC 22) makes this clear. Employees may retain a reasonable expectation of privacy in personal files stored on employer-issued devices even where workplace policies exist and an employer who accesses that information without a lawful basis faces serious legal consequences. For Ontario employers, the message is direct: clear, written privacy and electronic monitoring policies are no longer optional.

Case

York Region District School Board v. ETFO

Citation

2024 SCC 22

Decision date

June 21, 2024

Court

Supreme Court of Canada (unanimous)

Outcome

Employees retained reasonable expectation of privacy on employer device; unreasonable search found

Does your organization have a written electronic monitoring policy and privacy provisions in your employment contracts?

The 2024 SCC decision confirms that owning the device is not enough. Without clear written policies, your organization may face legal consequences for accessing employee data even on employer-issued equipment. Get your policies reviewed now.

Call: 1-800-771-7882 Speak With an Employment Lawyer

What happened

Two teachers employed by the York Region District School Board maintained a password-protected, cloud-based log on a Board-issued laptop. The log documented their workplace concerns. Their principal accessed the log by touching the mousepad of the open laptop and took screenshots of the contents using a personal cellphone. The Board then used the contents of the log in a disciplinary investigation against the teachers.

The Supreme Court ruled unanimously that the teachers had a reasonable expectation of privacy in the log despite it being stored on a Board-issued device. The principal's access constituted an unreasonable search under section 8 of the Canadian Charter of Rights and Freedoms. The Court confirmed that Ontario public school boards are inherently governmental and subject to Charter obligations.

What the Court found and why it matters beyond the public sector

Finding 1

Device ownership does not eliminate employee privacy

The SCC confirmed that employees may retain a reasonable though diminished expectation of privacy in personal files on employer-issued devices even where workplace policies exist. This principle was first established in R. v. Cole (2012 SCC 53) and is now firmly entrenched. The fact that the Board owned the laptop did not give the principal an automatic right to access its contents.

Finding 2

Ad hoc searches without lawful basis are legally vulnerable

The principal's access was informal, opportunistic, and conducted without any formal authorization or documented process. The absence of a clear, written policy governing when and how employer devices may be accessed was a significant factor in the Court's analysis. Investigations involving digital evidence require a documented, lawful approach.

Finding 3

The decision builds on an established framework

The 2024 ruling reinforces the principles from R. v. Cole (2012), which first confirmed that employees retain privacy expectations in personal files on employer devices. Together these decisions establish a clear trajectory: courts will scrutinize employer access to employee data and will not assume that device ownership confers unlimited access rights.

While this case involved a public school board where the Charter applies directly, the privacy principles it confirms have broader implications for all Ontario employers. Courts assessing whether an employer's access to employee data was lawful will look at whether clear written policies existed, whether the employee had a reasonable expectation of privacy, and whether the employer followed a proper documented process. These questions apply regardless of sector.

Why the absence of a clear policy creates risk

Without a written electronic monitoring policy, employees may argue they had a reasonable expectation of privacy in files stored on employer devices and courts may agree

Evidence obtained through an unauthorized or undocumented device search may be challenged or excluded in disciplinary proceedings or litigation

Employers in Ontario with 25 or more employees are required under the Employment Standards Act, 2000 to maintain a written electronic monitoring policy the absence of one is an independent compliance failure

Vague or silent policies that do not clearly address when employer devices may be accessed, by whom, and for what purpose provide limited protection and may be treated as equivalent to having no policy at all

Remote and hybrid work arrangements create additional device boundary ambiguity personal and professional use of employer devices blurs further when employees work from home

What your employment contracts and policies should address

Monitoring rights clearly state when and how employer systems, devices, and accounts may be accessed and by whom

Personal use boundaries specify whether any personal use of employer devices is permitted and what limitations apply

Data handling terms address how data collected through monitoring is stored, accessed, retained, and deleted

Investigation procedures document the process by which employer devices may be searched in a disciplinary investigation, including who authorizes access and when the employee is notified

Electronic monitoring policy for organizations with 25 or more employees, maintain a written policy under the ESA identifying the types of monitoring, the purposes, and how collected information is used

Acknowledgment and training require employees to sign acknowledgment forms confirming they have received and understood the policy, and include monitoring expectations in onboarding

Does your organization have clear electronic monitoring policies and privacy provisions in your employment agreements?

The 2024 SCC decision confirms that device ownership alone does not protect employers from privacy-based challenges. Our team advises employers across Ontario on employment agreements, electronic monitoring policies, and workplace privacy compliance. Get your documents reviewed before you need them.

Get Your Policies Reviewed Or call us: 1-800-771-7882

Practical takeaways for Ontario employers

Review and update your employment contracts to include clear monitoring rights, personal use boundaries, and data handling provisions silence on these issues increases risk

If your organization has 25 or more employees, ensure your written electronic monitoring policy complies with Ontario's Employment Standards Act, 2000 and addresses the types, purposes, and use of monitoring data

Establish a documented procedure for accessing employee devices or accounts in the context of a disciplinary investigation ad hoc searches without authorization or documentation are a significant liability

Apply policies consistently across all employees including remote and hybrid workers, where device and personal data boundaries are most likely to blur

Have employees sign acknowledgment forms confirming they have received and understood the monitoring and privacy policy this is evidence that expectations were clearly communicated

Get legal advice before accessing employee files, emails, or accounts as part of a workplace investigation the lawfulness of the access method affects the admissibility of any evidence gathered

Questions about workplace privacy policies or electronic monitoring compliance in Ontario?

Our team advises employers across Ontario on employment agreements, electronic monitoring policies, and workplace investigations. Contact us for a confidential consultation.

Call us at 1-800-771-7882 or fill out the form below and we will be in touch.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©

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