Special thanks to our articling student Rana Aly for contributing to this update.
Employers monitoring their employees in the workplace should be cognizant of their obligations under employment and data privacy laws. This article provides a primer on legal requirements for employee monitoring in Canada and contrasts employer compliance requirements in the provinces of Ontario, British Columbia, Alberta, Quebec, and Nova Scotia.
Employers must balance operational needs, such as safety, security, and productivity, with any privacy rights of their employees. Generally, monitoring should be reasonable, proportionate, and tied to a legitimate business purpose. Organizations must comply with applicable federal or provincial privacy laws, which can include safeguarding any employee personal information collected, obtaining employee consent in certain circumstances, and providing notice to employees of monitoring practices.
PIPEDA and Employee Monitoring
For federally regulated private-sector employers—such as banks, airlines, and telecommunications companies— employee monitoring is generally governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA only applies to employee personal information in federally regulated workplaces; otherwise, it governs commercial and customer personal information across Canada.
Provinces that have enacted private‑sector privacy legislation deemed “substantially similar” to PIPEDA are exempt from PIPEDA’s collection, use, and disclosure provisions under section 26(2)(b). Presently, only British Columbia, Alberta, and Québec have privacy legislation that is substantially similar to PIPEDA.
In provinces which do not have substantially similar private‑sector privacy legislation, such as Ontario and Nova Scotia, PIPEDA does not apply to provincially regulated employers’ handling of employee personal information. In those provinces, employee privacy protections arise through a more fragmented framework that may include employment standards legislation, privacy torts under the common law, employment contracts, workplace policies, and collective agreements. While PIPEDA does not govern employee personal information for provincially regulated employers in such provinces, it continues to apply to commercial or customer personal information across all private‑sector organizations engaged in commercial activities.Continue Reading Employee Monitoring in Canada: What Employers Need to Know