Snooping Through Employee Emails, a Breach of Privacy or Not?

Can an employee sue for compensation when an employer snoops through his/her work email account? Well, it depends. The BC Supreme Court recently faced a similar privacy issue in TeBaerts v. Penta Builders Group Inc., 2015 BCSC 2008 (CanLII). This case was about an employee who was fired from her job as a project consultant at a real estate development company. She sued for wrongful dismissal and went on to win that part of her case. The court found that the employer terminated her employment without cause and that she was entitled to a damages award of $93,750. In that same case, the plaintiff also brought a claim for breach of privacy. Shortly before terminating the plaintiff, the employer accessed the plaintiff’s work email account and went through a personal email exchange between the plaintiff and her mother. The plaintiff alleged that this was a breach of her privacy.

Breach of privacy

The BC Privacy Act, creates an actionable claim for anyone whose privacy has been breached. This allows that person to sue for compensation. However, in TeBaerts v. Penta Builders Group Inc., the court made it clear that the Privacy Act does not provide an absolute right to privacy. The claimed privacy must be “reasonable in the circumstances” and the breach must be done “wilfully and without a colour of right”. “the Privacy Act does not provide for an absolute right to privacy. The nature and degree of privacy that is protected is “that which is reasonable in the circumstances, giving due regard to the lawful interests of others”. Furthermore, the court must consider if the alleged violation of the privacy was committed wilfully and without colour of right.”

Reasonable in the circumstances

A claim for breach of privacy will only exist if it is reasonable in the circumstances, giving due interest to the lawful interests of others. Further, the court must also consider the nature, incidence and occasion of the act and the relationship between the parties. Justice Fleming reviewed other cases where the courts have dealt with breaches of privacy. These included recent cases from the Supreme Court of Canada discussing the extent of constitutional protection that will be given to privacy in the criminal context. Overall, Justice Fleming concluded that, when determining whether the alleged privacy is reasonable, “the totality of the circumstances should be examined to determine whether the plaintiff had a reasonable expectation of privacy”.

Willfully without colour of right

The person who committed the breach of privacy, must have acted willfully and without “colour of right”.  Previous cases have determined that this means there must be an intentional act, which the person knew, or should have known, would violate the privacy of another person. Further, the phrase “colour of right” has been described to mean an honest belief in a state of facts, which, if existed, would give rise to a justification or excuse.

TeBaerts v. Penta Builders Group Inc

The plaintiff’s breach of privacy claim in TeBaerts v. Penta Builders Group Inc. eventually turned on the issue of whether she was reasonably entitled to privacy in the circumstances. The court considered the relevant facts of the case, including the following:

• the computer was owned by the employer;
• there were very relaxed security procedures to protect against unauthorized access to employee computers;
• the employees often left their computers unlocked and without turning on password protection;
• individual passwords were not protected and others in the office new the plaintiff’s password;
• other employees used the plaintiff’s computer on a regular basis;
• the plaintiff had deleted some of the company’s files from the server and this was detected by the employer, possibly giving a reason for the employer to investigate further.

Given all the circumstances in this case, Justice Fleming went on to conclude that the expectation of privacy was not reasonable and denied the plaintiff’s breach of privacy claim. If you are facing a privacy issue, contact a lawyer in our Business Real Estate Law department.