Série de webinaires du groupe Travail, emploi et droits de la personne | Projet de loi 88 : Surveillance électronique (disponible en anglais)

Elisa: Okay, I think we'll get started. Good morning. My name is Elisa Scali. I am a partner with Gowling WLG practicing in the Employment, Labour and Equalities group, ELE for short. I'd like to welcome you here today on behalf of the ELE group to our third webinar in our 2022 webinar series. If you missed our first two webinars, they are available on demand, and you can access them via our new webpage that is dedicated to employment and labour, where you will find not only our on demand webinars but also some important updates on the ever-changing employment law landscape. The link to our webpage can be found in the chat. Our webinar today is an introduction to Bill 88, The Working For Workers Act. We're calling it an introduction because the information available, currently, regarding the rules is somewhat limited so what we will do with you today is review those rules, provide you with some guidance on what those rules mean for Ontario employers, based on what we know now. With a part 2, we hope, to follow shortly when more information becomes available. So to help us breakdown the Bill 88 today we have with us Tushar Anandasagar, Alycia Riley and Melissa Roth. Tushar, Alycia and Melissa, sorry, that's a tongue twister with both names, are part of our ELE group practicing exclusively in the area of employment law. Alycia practices out of our Toronto office and Tushar and Melissa practice out of our Waterloo office. If you would like to know more about our speakers you can access their bio which is linked in the chat and I'd encourage you to do so. In addition to having a common love for employment law, I learned that they also have a common love for the languages. Alycia was inspired to learn Spanish after taking a trip to Panama and is spending her free time, I'm not sure how much free time she has, but spending her free time learning Spanish. Tushar is trying to learn the Dutch language before he takes a trip to the Netherlands so he's been busy brushing up on his Dutch, and Melissa is already proficient in Spanish and also speaks Italian, and they're giving the motivation to make my mother proud and brush up on my Italian, which is really bad right now.

A few administrative items just to cover before we begin. There will be a PowerPoint presentation today. That PowerPoint presentation will be forwarded to everyone following the webinar. The webinar is also being recorded, so you can either access the webinar on demand via our employment law webpage but it will also be sent to everyone in attendance today, along with that PowerPoint presentation. There won't be a live Q&A at the end of the session today but the Q&A chat is open, so if you do have a question, please feel free to add it to the Q&A. We will make our best efforts to try to answer all of your questions, but as I mentioned, this is really an introductory session. There is limited information available. We'll do our best to answer your questions but, again, there will be a part 2 with a more in depth analysis of Bill 88. So let's get started. I'd like to turn it over to Alycia.

Alycia: Hi. Good morning, everyone, and thanks for joining us today. So in terms of the agenda we're going to do our very best to get you out of here in an hour and a half. Bill 88 actually introduced a lot of key changes so we're going to take you through a couple of those major changes before we move into the electronic monitoring policy requirement. We're then going to follow it up with some commentary on related case law and then, everyone's favourite, we're going to move over to fact patterns and practical scenarios. Next slide, please.

So a legal disclaimer about today. This presentation is not intended as legal advice. This is a high level overview. It's unfortunately impossible for us to cover all of the relevant details today. For specific advice please do consult your qualified legal counsel before you make any decisions or take any action. As Elisa mentioned, this is continuing to evolve so your best course of action should also continue to evolve. Please do make sure that you're keeping up to date and making sure that you're using reliable sources for your information. Next slide, please.

Schedule 1 of Bill 88 actually introduced the Digital Platform Workers' Rights Act 2022 or the DPWRA. So it's important to note this is not enforced yet. Proclamation date is TBD. I checked it this morning. It is still TBD. But what it does is it establishes new minimum standards for digital platform workers. So the question is, how did all of this come about? In the past few years we've seen a lot of significant decisions from courts and administrative tribunals that discuss the workplace protections for those offering services in the gig economy. So one question that frequently arises is whether these individuals, are they employees? Are they independent contractors? Are they something in between? So what the DPWRA does, actually, is entirely sidesteps this by introducing a new term, 'worker'. So the term worker is given a broad meaning. It means subject to the regulations, an individual who performs digital platform work and includes a person who was a worker. So here we already see that it could apply to somebody who no longer performs services for an operator. So the scope applies to online platforms that allow workers to choose to accept or decline the digital platform work. So in the definition that includes ride share, delivery, courier and other services. The definition of digital platform is, again, an online platform that allows them to choose or to accept or decline the digital platform work. So the emphasis here is really on the entity that controls the work assignment for the worker. I'm not sure if any of you have had the opportunity to review this particular proposed legislation yet, but what I would encourage you to do is, because all of these definitions all say subject to regulation, it's a good idea to really, even if you don't think that your organizational activities are subject to it now, still a really good idea to make sure that you're tracking the development of the proclamation and any subsequent regulations that are filed, because that may change your assessment as to whether or not your organization's activities are caught by this Act. The Act itself is quite long. We don't have time to go through it all today but, at a high level, what the Act does is it establishes these rights and protections for the covered workers under the Act. So most importantly we have the right to information regarding pay, tips, work assignments and performance ratings. We also have a right to minimum wage for work assignments, earned tips and gratuities and the minimum wage rate is tied to the minimum wage under the Employment Standards Act. We also, on the termination if you will side of things, we have the right to notice of removal and an explanation of the reason for removal from the digital platform. Now it's not here on the slides but importantly there's also what's been called the right to dispute resolution in Ontario. It's actually an obligation. So if the activities pertain to those prescribed under this Act the dispute has to be resolved in Ontario. I believe that's a reference to the Supreme Court of Canada's decision in Heller and Uber. There's also rights against reprisal. So, as I mentioned earlier, the concept of a worker is pretty broad under this legislation but what this does not do is it does not preclude a covered worker from asserting that they are in fact an employee under the ESA, or that they should be covered under another form of Employment Standards legislation. So we may still see developments in the case law, notwithstanding if this Act is proclaimed into force. Next slide please, Shannon. Thank you.

So on the administrative and enforcement side of DPWRA, once in effect this Act is going to impose a duty upon operators to keep records, and will also make it an offense to make, keep or produce any false records or other documents as required. The Act is also going to implement a complaint and enforcement mechanism that allows a worker to file a complaint regarding contraventions of the Act, within a limitation period of 2 years. So for those of you who are familiar with the complaint mechanism under the Employment Standards Act, employees in that scenario can file a complaint with the Ministry of Labour and so the wording and the concept under the DPWRA mirrors largely the ESA. Lastly, there are new penalty provisions. So the Act prescribes penalties of up to $50,000.00 and/or 12 months imprisonment for an individual, or up to $100,000.00 for corporation on the first conviction, and also includes provisions for publishing public notices of contraventions. So that's a summary on the DPWRA. I'm going to pass it off to Melissa now to discuss OHSA requirements.

Melissa: Thank you very much, Alycia. Good morning, everyone. Thank you for being here today. We have a lot of information. I would like to tell you a little bit about the changes to that Bill 88 has brought to the Occupational Health and Safety Act. Generally, Bill 88 is really beefing up the Occupational Health and Safety Act, and what we want to tell you today starts with the requirement to have Naloxone kits. Naloxone is a medication that can temporarily reverse the effects of an opioid overdose and allow time for medical help to arrive. The new requirements under OHSA, from Bill 88, impose a duty on employers to provide and maintain a Naloxone kit, and maintaining in good condition, in a workplace where there may be a risk of a worker having an opioid overdose. The legislation doesn't specify what those workplaces are but instead the duty is on the employer when an employer becomes aware, or reasonably to be aware, as it is the standard for a lot of things under OHSA or under Human Rights legislation. So the requirement comes in when the employer is aware, or ought to be aware, that there may be a risk of an employee having an opioid overdose. According to a Provincial news release, 30%25 of deaths of employees due to opioid related causes were construction workers, by far the most of any industry impacted. Bars and nightclubs were also referenced as being at increased risk for opioid overdoses. So employers will have to really turn their mind to this and to the specific circumstances of their workplace. Employers are also required to ensure that the kit is in charge of a worker who works in the vicinity of the kit and that the worker is, of course, trained in recognizing an opioid overdose and properly administering Naloxone. So these requirements are not yet in force and will become effective on a date that is to be determined by proclamation.

Moving on to the next OHSA changes. Again, beefing up OHSA, providing for more significantly increased penalties for all individuals and corporations. The government commented when announcing the OHSA changes, and said that we are also increasing Ontario's occupational health and safety fines to be the highest in Canada for businesses that fail to keep workers safe. So lots of indications of what the intention is. We want Ontario the ones that have the highest fines for health and safety issues, according to the government, so directors and officers of corporations who, like all individuals, are currently subject to a maximum fine of $100,000.00 will instead face a maximum of $150,000.00. Sorry, 1.5 million dollars. I got to get my numbers right. I apologize. Which is the same as the maximum penalty that can be imposed on a corporation. The Bill also increases the maximum monetary penalty for all other individuals to $500,000.00, or half a million dollars, and this is a five-fold increase from the current maximum. So we got 15 times the amount on directors and officers of the corporation and, other individuals, 5 times the amount that it currently is now. These maximums, we have to remember, are per offense. Meaning individuals charged under OHSA with multiple offenses could face a maximum monetary penalty in the millions or multiple millions of dollars. In addition to these substantially increased maximums, individuals could also face up to 12 months in jail. So these changes are scheduled to take effect on July 1, 2022, which is coming up very quickly. So a huge discouraging factor, an encouraging factor to ensure that health and safety is being maintained in the workplace. We also have a doubling up of the limitation period under OHSA. So effective July 1, 2022, it will be a 2 year limitation period. They're not uncommon as there are several other jurisdictions that already provide 24 months for the laying of charges, and that includes Alberta, Nova Scotia and Saskatchewan. We also have changes with respect to legislated aggravating factors. At the same time as increasing the fines that can be imposed, we also have sentencing provisions that have been amended. By inserting aggravated factors for both corporate and individual defendants for consideration when a court is determining penalties. So these are now in the legislation which is what's different. The court always considered these aggravating factors but it wasn't something that was legislated. The amendment includes only aggravating factors, meaning those that serve to increase the penalty, but not any mitigating factors. I will not bore you with the aggravating factors with a list of them. I'll tell you they're in Bill 88 and they will be part of OHSA but I'll tell you somethings, for instance, if a defendant committed the offense recklessly this will be an aggravated factor. Previously convicted of an offense under OHSA, or another Act, is also an aggravating factor. Lacking remorse is also a legislative aggravated factor. So the Crown will determine how these are used in every case, and again, we have some cause of concern when we see that the intention is to increase those fines. So we can certainly, practically speaking, think about these factors which are already considered when determining a penalty and we can anticipate that higher penalties will be imposed, with respect to OHSA offenses.

Lastly, the next changes to OHSA is with respect to prescribed orders. So this means that anyone convicted of an offense, both people and corporation, may also be subject to a prescribed order in addition to any fine or any jail term that is imposed. Exactly what a prescribed order could be is not explained, however, we know that prescribed orders will be created by regulation and they authorize a court to impose additional terms and conditions on a defendant, as part of their sentence. We can look at other jurisdictions that have prescribed orders, and in this case that's the Nova Scotia Occupational Health and Safety Act, and with that we see things like being, again this the Nova Scotia Act, it is in section of the 75 Occupational Health and Safety Act if you want to see what some of those prescribed orders might be, but some of them are for instance, directing the offender to publish the facts relating to the offense, directing the offender to pay the Minister an amount for the purpose of occupational health and safety initiatives, including public education, directly the offender to perform community services and also directing the offender to provide such bond, or pay such amount of money, into the court to ensure compliance with an order made under the occupational health and safety legislation. They're meant to provide sentencing options that open the door to creative outcomes but this coupled, with all of the other changes, make us think it's not as an alternative likely to the fines, it's more an additional remedy. So with that, that ends the changes to the Occupational Health and Safety Act, and I will leave you with Tushar to go on with the next set of changes.

Tushar: Thank you very much, Melissa, and thanks everybody for joining us this morning, this afternoon, this evening, wherever you are, thanks again. So I will be walking you through some changes implemented by Bill 88 to the Fair Access to Regulated Professions and Compulsory Trades Act. Boy, say that 10 times. Quite a mouthful. FARPCTA. There are a lot of changes that were implemented in respect of timeframes for which regulated professions, including 23 trades, actually need to respond to registration requests. So at a very high level, again we're just moving through these issues quickly, we're dealing with historic labour shortages in what is called The Great Resignation. Lots of red tape. This is an attempt by the Province to eliminate some of that red tape and so we'll kind of leave this at that. We'd invite you to look at the timeframes. If you are one of these regulated professions or trades you may experience this in real time, reduction of the timeframe by which a response would need to be prepared. In terms of the ESA, we're going to be looking at the more significant changes under the ESA as they relate to electronic monitoring. But a lot of the minor changes to the ESA were kind of swept under the rug and buried in the media coverage of electronic monitoring. So I wanted to call out that as of January 1, of 2023, we've actually got new provisions that will come into force regarding business consultants and IT consultants, and consultants who meet certain criteria would essentially be excluded from the application of certain provisions of the ESA, which means that certain minimum standards would not apply to them. We do experience similar rules with respect to special categories and what the ESA calls special rules. So we do have a quick overview of the exemption criteria. First and foremost, the consultant needs to be providing the regulated and relevant services to a corporation, where the person is either a director or a shareholder. So that is an interesting development. Second, there needs to be a written consulting agreement which sets out that the consultant will be paid, and what the consultant will be paid and how much per hour. So there's a minimum actually that's been established, as per Bill 88, of $60.00 per hour, excluding certain sums and it's expressed as an hourly rate. Third, the consultant is actually paid the contracted amount, I hope that would happen, and fourth, any other requirements that may be prescribed. Again, we have these regulatory and legislative provisions coming into force on January 1, of 2023. We will know more as and when said regulations are actually prescribed, published and we have more guidance on this. Quick call out on reservist leave. Employees will become eligible for reservist leave after 3 months, which is down from the previous 6 months, and eligibility for reservist leave is actually been expanded to include participation in military skills training. Next slide, please.

On to electronic monitoring. The reason I think why most of us have come here today. Why are we doing this and why are we doing it now? I'd like to read briefly the statement that was issued by Monte McNaughton, our Minister of Labour, with respect to Bill 88 when the legislation was first proposed.

"Today, businesses have more ways than ever before to monitor where their workers are and what they are doing. Whether you are a delivery person being followed by GPS, a construction worker using a company phone, or an office worker logging in from home, you deserve to know if and how you are being tracked. The future of work is changing which is why our government is leading the country to ensure workers remain in the driver's seat."

Interesting statement from the Minister of Labour and it speaks to the intention behind this legislation. Next slide please, Shannon.

So a little bit more on the why. Why are we starting to see this now? Well, as per Stats Can, the COVID-19 pandemic has prompted the largest shift to remote work in history. 32%25 as of January of 2021 of Canadians aged 15 to 69 actually worked from home. This was at the height of the legislated stay at home order in Ontario, for instance, but that's a substantial jump up from just 4%25 in respective of the same period in 2016. So what did we experience, collectively? All of us must have felt this. We felt a rush. When the pandemic started everyone was scrambling to figure out how the systems are going to be working. How are we going to basically make ends meet, if I can put it that way, on the IT side and so as a result of that, there was the creation of a certain level of vulnerability. Particularly at the start of the pandemic it seemed like every day, or every second day, there was some company, or entity or organization that was in the news regarding a privacy breach, regarding a statutory issue, so non-compliance with certain regulatory provisions. A data security issue, ransomware. Then, as things started to progress in the initial phases of the pandemic, businesses started to become concerned about productivity when I can't actually see the person that I'm working with, sitting in front of me on their laptop or on their computer at their workstation. I can't sort of nudge them along when they're chatting at the water cooler and say, hey you better go get that assignment that I've given you done. So we did have these concerns come up during the course of the pandemic and the critical piece, I think, is that they came up very, very quickly. Next slide please, Shannon.

What did the Province do under Bill 88? What has actually been implemented? We've got a new part under the ESA, Part 11.1, and it's section 41.1.1(1), so lots of ones, and under this new section the ESA now states that an employer who employs 25 or more employees must ensure that it has a written policy in place for all employees, with respect to electronic monitoring of employees. Let's talk briefly about the scope of this particular legislative requirement. This applies to ESA regulated businesses. So Provincially regulated businesses. If you're outside of the scope of Provincially regulated business, a Federally regulated business for instance, the electronic monitoring policy would not apply directly to you. There are other laws. There are other regulatory rules that would apply to you. In terms of the industries that are affected by this, are there any carve outs for employees? No. Not as per Bill 88. It applies to the CEO. It applies to the mailroom clerk. It applies to everyone in between, however, I will call out that there are exceptions with respect to Crown employees. In terms of industry types, application to industries, does it matter whether a company operates in retail, for instance? Nope. Not for profit charitable? No. There are no exceptions, if you're Provincially regulated and not the Crown, you are going to be subject to this new policy compliance requirement under the ESA, as long as you meet the relevant thresholds and we'll get into that a little bit later. The status of the employer, charitable, again we talked about corporation, not for profit, not relevant. It applies to all industries and I've put a little asterisk on the slide just to call out to that. We do have, as with the other amendments that we talked about earlier, the ability for the Province to meet regulations, to make changes on the fly, and to actually introduce modifications to these requirements as things progress and as we sort of see this start to ripen over time. So we may see exclusions by the Province and we will know more about these exclusions as we get closer to the comply by date. Next slide. I'm actually going to pass it back to you, Alycia, to walk us through a couple more of the nitty gritty changes.

Alycia: So we've got this new requirement and we need to know when do we need to have this in place by. Royal assent on Bill 88 was received April 11, 2022. Unlike some of the other aspects of Bill 88 that we covered earlier, this particular requirement came into effect upon royal assent. So we're not waiting for proclamation. However, because this just came out, there is a transitional period for the first year. So employers that are required to have this policy in place have 6 months from the date of royal assent, so your seminal date for the policy if it applies to you is October 11, 2022. If you need to assess, if you're close to that line of whether or not you employee 25 or more employees, the date that you are using to make that determination is Jan. 1, 2022.  For those of you in successive years, you're going to need to be continuing to look at this every year. So going forward you'll need to assess the employee count as of Jan. 1 and then if that applies to you, sorry, I just got a question. I'll answer that in a moment. If that applies to you then you'll also need to ensure that your policy is in place by March 1 of that year. So similar stipulations with respect to the right to disconnect policy. It's possible that an employer's going to need to have a policy in one year and then fall below that threshold in the following year. Then on record retention, the ESA is specifying that you will need to retain copies of the policy for 3 years, after the policy ceases to be in effect. Next slide please, Shannon.

On the actual implementation side of things, the existing employees and new employees will both be needing to receive copies of this policy. So for your existing employees you will need to give them a copy of the policy 30 days from the day that you have to have the policy in place, or if you have an amendment policy that you're rolling out, you'll need to provide the employees with a copy of that policy 30 days from the date of the changes. For your new hires, new hires must receive the policy within 30 days of becoming an employee, or within 30 days from which the day the employer is required to have the policy in place, whichever is later. There's a bit of a wrinkle with the temporary help agency employees. It's a little bit stricter. So an employer that is a client of a temporary help agency must provide an assignment employee with a copy of the policy within 24 hours of the start of the assignment, or 30 days after the employer's required to have the policy in place, whichever is later. So just be mindful if you have a lot of agency workers on site at your workplace, there can be a lot of turnover with agency employees, so you'll want to make sure that if you need to have this policy in place you are continuing to keep that list active and make sure that all the assignment employees are getting a copy of that policy.

Lastly, the complaint and enforcement mechanisms are limited with respect to the monitoring policy. To be clear, everyone, there is nothing prohibiting an employer from engaging in electronic monitoring. Just need to be up front about it. So the legislation only permits certain types of complaints, essentially making sure that the employer has the policy in place and that they've complied with the requirement to present the policy to the employee. So, specifically and for added clarity, there is a section that says that a complaint under section 96(1), which is when the employee would make a complaint to the Ministry of Labour, they can only file a complaint with respect to contravention of those particular items that I just mentioned, and Bill 88 says further, you cannot make a complaint with respect to any other contravention. You cannot make a complaint and have that complaint investigated. Next slide please, Shannon.

For mandatory inclusions, and Tushar touched on this earlier, but let's just dive into what we know based on the actual wording of the legislation. The first point there, these are your mandatory inclusions that are going to need to be in your policy under Bill 88. The first point is whether the employer monitors employees and, if so, you will need to provide a description of how and in what circumstances you are electronically monitoring your employees. In addition, you will need to specify the purposes for which that information is obtained and how it might be used by the employer. At the end of the policy is how I usually recommend but you will need to specify that the date that the policy was prepared and the date of any changes that you've made to the policy. So usually I recommend a document history provision at the end of the policy that shows the original implementation date and any amendments made thereafter. Then lastly, we have the such other information as may be prescribed. So Tushar touched on that earlier. There's a lot of leeway here with respect to the filing of regulations. So, again, that's why it's really important to make sure that we're tracking Bill 88. Gowling WLG is going to continue to monitor that closely, of course, but it's important to keep in mind for you as well as you roll out and consider this policy, because there might be additional requirements in the future. I'm going to pass it off to Melissa now to discuss some of the gaps in the legislation.

Melissa: Thank you, Alycia. Yes, we have a lot of information that doesn't give us too much guidance, perhaps, so what have we identified as potential gaps in this legislation? One of them is any carve outs for exemptions. The Lieutenant Governor and counsel can make regulations that provide for certain carve outs, or exemptions or best practices from the standard application of Bill 88. Section 141 of the ESA contains that ability to do so but Bill 88 has a flexibility provision which modifies that section 141 for carve outs and exemptions. So that flexibility provision says that providing for exemptions from Part 11.1, or any provision of it, which is the new electronic monitoring policy disclosure, including providing that employees are not required to have policies in respect of certain forms of electronic monitoring, the circumstances specified in the regulation. So at present it isn't clear what these certain forms of electronic monitoring are. The regulations are still to be determined and we're still in the early days. But we anticipate that there will be a fairly detailed list of potential exempt industries and perhaps we may see exemptions in the financial industry, defense, cyber, tech, policing or health care sectors. Especially given the number of public consultations that have taken place since March 1, 2022. The other potential gap in the legislation, and there's been some questions with respect to this, is what is meant by electronic monitoring? Definitely safe to assume that GPS, recording of meetings, recording of calls will all meet the threshold of employee monitoring and therefore will need to be disclosed. We could probably say the same thing about most active monitoring strategies. So, again, for another question that is currently on the queue, I'll answer it live now, the legislation doesn't distinguish, the question is how does electronic monitoring of people differ from electronic monitoring of devices? At this point we don't think that there's going to be a distinction from that perspective, because when we're monitoring devices, the ultimate outcome is to monitor our employees. Those things like the typical monitoring things, we could probably say they are going to have to be disclosed for sure. Same thing with respect active monitoring strategies, however, we feel that most of the issues will come up when employers are trying to figure out what passive mechanisms will be subject to regulation. For instance, slack messages or browser history and which ones need to be disclosed. When we're talking about the circumstances under which monitoring is deployed, also what does this mean? There is nothing at this stage to regulate whether or how an employer can monitor. All that the legislation purports to do is mandate that the employer has to disclose to an affected employee. So the same issue comes up with the act of disclosure itself. This was also another question that was in the queue. There is nothing under the legislation that prohibits monitoring and so, in its current form, all that is required is a disclosure of some form with respect to your monitoring and this has to occur based on the legislation. But how specific is that disclosure? What level of detail do we have to get into? Again, this was another question that was in the Q&A. So for instance, is it sufficient to say you need to assume that we're monitoring everything you do on our systems, or while you're working? Or do we have to list the specific programs and they types of data that will be collected? All of these wrinkles will have to still be ironed out and we can expect them to be ironed out. The legislation reserves substantial authority and allows the Province to subscribe regulations that will fill in the gaps in the future. So this is a fairly common approach that we see and we need to be flexible to address these future issues.

The other potential gap is that the use of information is not restricted. The legislation expressly says, nothing in this section affects or limits an employer's ability to use information obtained through electronic monitoring of its employees. Now, there may be other limitations on what the information can be used for or the value that it will have. For instance, collective agreements may restrict a user from information gathered in the course of surveillance. If there is no policy we may have issues with covert versus overt and now, with the disclosure of that monitoring, some of those issues may go away. So again, this is something else that is a potential gap in the legislation. Then the last thing would be the standalone versus policy versus handbook. The legislation says nothing and we're waiting for guidelines with respect to this, but given that the new electronic policy may have to be produced to prove compliance, produced to the Ministry of Labour to prove compliance, it is best that it's written as a standalone document because, as a general rule, you don't want to give an employment standards officer more than what that they need to determine compliance with ESA. So we may want to take this out of handbook, or include it in the handbook, but also have it as a standalone policy. A policy that sets enforceable rules for employee use of a network and also we may want to have it adjunct to any existing acceptable use policy. We think it is a suitable time to update your acceptable use policies because they will come hand in hand with this and with this new requirement. Employers should also consider moving the privacy provisions from their acceptable use policies to their new electronic monitoring policies, such that their new policies become this single document that establish an employee expectation of privacy.

In the next slide we'll talk about some concerns with respect to this legislation. As we've mentioned, this is new legislation in Canada. We don't have other jurisdictions in Canada that have this kind of legislation, but we do have some jurisdictions in the US that have this type of legislation, and in fact it was on May 7 that the New York State law kicked in requirements to disclose electronic monitoring of employees phones, emails and internet activity. There's also other jurisdictions in the US like Connecticut and Delaware that have mandated similar disclosures since the late 1990s and early 2000s, respectively. In Europe there's also requirements where companies have had to prove that monitoring has a legitimate business basis and that would include things like preventing intellectual property theft, or posting productivity, and those are in Europe since 1995. So while we don't have this type of legislation in Canada, we do have several Canadian jurisdictions that have introduced private sector legislation with respect to privacy, that regulates employee information. So we have to see how this will interact with the laws of other jurisdictions with respect to privacy legislation. We don't have sufficient time to go into the details here but the rules that apply in Ontario will not be the same for your operations in other jurisdictions, however, as a general fairness and employee morale issue we often, when we have companies that operate across Provinces, we may want to also have the same requirements in other Provinces. So if we're going to be doing that we need to look at the privacy legislation of that particular Province, because truthfully, Canada's patchwork of privacy law makes it very difficult for multi-Provincial employers to achieve compliance in a consistent way. So compliance with electronic monitoring rules in Ontario won't mean that you're complying with the rules in Alberta, or BC, or Quebec or the Federal jurisdiction. So the rules are substantially different. For instance, in Ontario there is no requirement to obtain the consent of the employee being monitored. So we really encourage you to seek independent legal advice if you are dealing with multi-Provincial operations.

The other thing that we need to consider is the interaction with the common law. Since the Supreme Court of Canada decision in R versus Cole, which we will talk about in a little bit, since that decision recognized a limited employee expectation of privacy, employers should already be stipulating all the purposes for which they may require access to network data, including information in user accounts, and that would be, for instance, to maintain the network, to investigate misconduct and to support the continuity of work. Usually those three factors cover most of what we want to do with that data that we monitor. Meeting the minimum compliance requirements under Bill 88 may not meet the practice risk mitigation standards, pursuant to the common law. So, again, get independent legal advice if needed with respect to your circumstances. The other thing would be contractual rights versus statutory rights and are we creating new contractual rights? We are still several months away from October 11, 2022, and as Elisa mentioned we are hoping to have a part 2 of this webinar when we can get more information from the government. These are the early days, and as with the right to disconnect policy, employers should be prepared to engage in a consultation process and take your time. You should be mindful of section 52 of the ESA, which is the one with respect to creating greater rights or benefits, and if you create a greater right of benefit, the Minister of Labour will enforce those greater right or benefits. So an issue that will likely come up is that electronic monitoring restrictions do not exist in a way that creates a legislative right to privacy. So Bill 88 only creates a notice or disclosure obligations and policy compliance requirements but no right to privacy. But if an employer moves too quickly, and establishes a policy that goes above and beyond what is required, it could potentially create a contractual right, or at the very least, an expectation that may restrict the employer's ability to monitor or what they do with their information. So the legislation is so open ended that there may be prescribed restrictions that vary, based on the industry, or sector, or the software type or the device type, so again, we don't have information on this. I know there are questions in the Q&A as to do we have any kinds of distinctions, and we don't know yet. These rules will necessarily change over time as the Province reacts to different risks and objectives and policies should be designed so that they're open ended and capable of being modified and not set in stone.

The next slide, we want to get into some practical considerations and with respect to this, we want to start with the no limitation. We talked about this. There is no limitation on electronic monitoring, however, you will have caveats if you are in an unionized workplace. Unionized employers will continue to face the possibility of grievances, alleging that monitoring constitutes a privacy violation under their collective agreement. There will be issues relating to invasion of privacy in the union context, which are definitely not new and we'll talk a little bit later about what we have learned so far from the unionized case law. There is existing case law dealing with surveillance, with CCTV cameras and with GPS monitoring. There is also case law dealing with other forms of surveillance, right up to the Supreme Court of Canada, as we talked about before. We'll have to see how this affects the unionized workplaces as well. The second practical consideration is that Bill 88 does not distinguish between monitoring that occurs via software installed on endpoints, which would be your workstations or your handheld devices, and other network devices. It just talks about monitoring in a very broad, general sense. Most employers now compile and use a wide range of data for network security purposes. Employers therefore have to be mindful that the obligation to disclose may extend to network endpoints, not just physical endpoints in an employee's hands. So they should be prepared to list applications, regardless of where they are installed on the network, or really consider how much disclosure they're going to have.

The practical considerations continue onto the next slide and the other thing that we want to talk about are the risk associated with over-disclosure, which go back to how much are we going to have to list with respect to the monitoring applications that we use. Organizations typically keep security controls confidential to protect against the adversary behaviour called threat shifting. Threat shifting is the shifting of tactics to circumvent existing known controls. So for every monitoring software that is out there, there are people who are intent on creating anti-monitoring software. So for instance, there is software that will show the employee that their mouse movements are being tracked. At a high level, disclosure of monitoring technologies, anything more than a general statement, can certainly create a theoretical risk of exposure because now we have more employees that are able to engage technologies to fight our monitoring. So because the extent of disclosure under Bill 88 isn't known, it isn't clear whether an employer may be likely to suffer threat shifting risk to the level of disclosure that they may have to have. So it is likely that employers in heavily regulated sectors, like the security industry, or medical or credit unions, financial institutions, push back on these ambiguities and that is why Bill 88 progress a little bit more slowly through the legislature than Bill 27 and other recent statutory changes. In our view, employers should be aware of the risks posed by threat shifting and minimal disclosure may be advisable and employers should not take the Bill as an invitation to overcorrect and disclose too much. So to avoid vulnerabilities a monitoring policy should not be too detailed, at this point at least until we get indication otherwise, but employers should anticipate employee questions, even if you disclose very little. Sometimes the less we disclose, the more questions we have. Employers should really be prepared to be transparent. There's also the issue of when employees know that they're being watched, that they're being monitored, most people are less likely to misbehave. There will certainly still be the people who will misbehave no matter what, but as a general human nature, people are less likely to misbehave when they know they're being watched. Also from a litigation perspective, if our employees know our policies, they know that we have monitoring then that will really help us when we're in front of a judge or an arbitrator and we're trying to rely on breaches of other policies, or breaches of that particular monitoring policy, or respectable use policies, or appropriate use policies, when they're known and transparent.

The next practical consideration is that the employers have to employ information technology asset management. This is a process for governing their network, hardware and software. Organizations with strong asset management practices will have very little difficulty in identifying how employees are monitored. For employers with weak asset management practices, Bill 88 is an invitation for improvement and the weeding out of unmanaged applications. In some cases employers may wish to retain cyber or tech experts to assist with identifying gaps in their systems, and this may be particularly helpful if they rushed to remote work at the start of the pandemic, and the can self-identify that they have weak IT asset management practices. We do have lots of anecdotal information and articles out there that really tell us how much monitoring has increased since the beginning of the pandemic. There's an article in the Economist that tells us that a study by the European Commission found that a global demand for employers buying software more than doubled between April 2019 and April 2020. So within weeks of the first lockdowns in March 2020 the search queries for monitoring tools rose more than eighteen-fold and surveillance software makers sales really jumped. So this is why we are seeing this type of requirement being imposed at this stage. So with those practical considerations, and with perhaps more questions than answers at this point, I will pass it to Tushar who will continue with some practical considerations and move onto the next.

Tushar: Thank you so much, Melissa. So just picking up where'd you left off, some really, really valid points raised, I do think and you'd mentioned this previously so we don't have to spend too much time on this, this is really an opportunity to update your related policies that have something to do with tech with privacy, with data security, with tech use. There were a couple of really great questions that came up in the chat with respect to whether or not simply having a privacy policy in place, or a mobile device use or tech use policy, that says employees have no reasonable expectation of privacy at the workplace, whether that is sufficient. Our assumption at this stage is, no, we would need to go further. This is a separate policy requirement under the ESA, or at least to have some sort of a section that is bolted onto your handbook, or your existing policies that deal specifically with these new requirements. But all of that being said, this is an invitation we're framing, this is an invitation to harmonize your tech privacy and data security policies so that we can make sure that there's no conflict between them, and at the same time, update them and bring them in line with current legal considerations. Next slide, please.

So we have some key takeaways on Bill 88. This has been framed as new ground breaking legislation in the Provincial announcement they sent across Canada. We do have existing privacy legislation in other Provinces and in the Federal sector, which in many ways goes further than this, and we also have some recent changes in New York and other States in the United States which somewhat mirror what we've got, or rather we have mirrored what they've got in the cases of Delaware, for instance. But this is not necessarily ground breaking legislation in the same way as what Monte McNaughton had announced. It is monitoring specific but in many ways it falls short of jurisdictions that have more fulsome and more mature privacy laws. Yes, these changes create new requirements with respect to electronic monitoring, but we do think, particularly because a lot of the workforce remains in hybrid or remote work context. We do have opportunities to plug gaps, to set expectations, to make sure that we are ticking the boxes and aware of all of the different sources of data that's being collected, actively and passively, and being stored. We would, again, invite you to consider reviewing related policies and protocols and, couldn't resist, we are monitoring for ongoing developments on Bill 88, including all of the regulatory changes. So quick breeze through of the key takeaways on Bill 88. I'm going to pass back to Alycia to walk us through some case law. We're going to get into the theoretical and talk a little bit about R versus Cole.

Alycia: Thanks, Tushar. So as we've been saying throughout, Bill 88 is so new we obviously don't have any case law on this yet. We don't know how a court is going to apply or interpret these particular provisions. So it leaves us a little bit in the dark but what we do have is an extensive body of arbitral case law, so in the unionized context, that discusses the need to balance personal privacy of employees with operational realities of the employer. So those cases, which we'll get into in a minute, they really focused more on the idea of surveillance as opposed to electronic monitoring, per se, but there's definitely an overlapping concept there. So before I go into the labour side of things, just want to take a moment to remind everybody about R v. Cole and the Supreme Court of Canada's decision. So that's a 2012 decision, and for those of you who are not familiar with the case, it's actually in the criminal law context more so. So Cole was an Ontario high school teacher who had been assigned a laptop by his school. So the school board owned the laptop but Cole was allowed to use the laptop for personal purposes. A technician, while performing maintenance activities, found a hidden folder on the laptop that contained nude and partially nude photographs of an underaged female student. So through a turn of events, without a warrant, the police viewed the contents of both the CDs that had been created of the images and made a mirror of image of the hard drive. So in the Supreme Court of Canada's decision, one of the issues that it had to assess was, did Cole even have a right to privacy with respect to the contents of that work laptop? So the Court ultimately ruled that, yes, the employee does have a reasonable expectation of privacy with respect to information that is stored workplace computers. But what they did here is they actually applied this test, as you can read on the slide, that sets about the reasonable expectation depending on the totality of the circumstances. So that would affect the Court's considerations and so we've applied that as well in the solicitor context in advising client's on reasonable use. The lesson from R v. Cole is that where the employer owns the device, or the equipment, that can diminish the employee's reasonable expectation of privacy. If you have workplace policies and practices in place that can also further diminish the individuals expectation of privacy. But what it doesn't do is it does not fully remove the privacy expectation. So the ultimate finding in R. v. Cole was that Cole did have a reasonable, although diminished, expectation of privacy with respect to the contents of his workplace computer. So the police's warrantless search was a violation of section 8 of the Charter, although in that case the evidence was still admitted under section 24(2).

Shifting into the labour side of things. The general propositions that arise from our understanding of the arbitral awards over the years, according to the jurisprudence, the right of an employer to use electronic surveillance, they need to be sensitive in balancing the needs of the employees and their right to personal privacy. So that means that both the way in which, and the purposes for which, such devices or monitoring systems are deployed will become part of the critical analysis in determining the extent to which that particular system, that's being used, is invading the employee's personal privacy. So arbitrators have taken that assessment and said, based on that are we satisfied that the employer's use of this particular system is a legitimate use? So at one end of the spectrum, we have arbitrators that have consistently denied the employer's right to use unconcealed video devices if they are using that to monitor the performance of their employees, but at the other end we also have sustained examples of where surreptitious surveillance has been used against individual employees in public places where the employer has reasonable grounds to investigate a potentially fraudulent claim. So arbitrators have also upheld in other instances that an employer has the right to, in some cases, inspect an employees locker, to monitor a odometer readings on vehicles, to scrutinize the use of an email system. They could scan to see if an employee has contacted a third party employer. So in those cases the finding has generally been that the invasion of privacy is relatively insignificant and so, in those cases, the invasion of privacy was justified.

One of the first cases we just have here at the bottom of the screen, Irving Pulp and Paper is a decision that went all the way up to the Supreme Court. Actually not a case about specifically electronic monitoring or surveillance, it was do with a random alcohol testing policy. So in that case the Court ultimately held that the employee privacy trumped the concerns of the employer. One of the major findings for that was because this was a theoretical safety concern. There had not been any established instances in the workplace and so the court said it was unreasonable in that case. Next slide please, Shannon.

So Kadant is a 2015 BC arbitration decision and the employer in that instance had installed an overt video surveillance system that was used because it was trying to prevent previous and recent issues of material theft. It operated a workplace full of heavy machinery. The reason why I decided that it had to go onto the surveillance aspect was because it had concerns with the accuracy of witness testimony in such instances, and what they were finding is that the witness testimony was directly contrary to the evidence of the video surveillance. So in that case the arbitrator found that the exercise of management rights was reasonable and that the employer's operational concerns trumped the employee's right to privacy. However, as we can see in this third bullet point here, it was very clear on the record that the employer was not using this for discipline. It was not using it for performance monitoring. So Arbitrator Lanyon recognized that there's a difference between using cameras for discipline, or supervisory purposes, as opposed to the investigation of incidents. So that distinction's not always clearly drawn in the case law. Not always drawn in workplace policies either, but it is an important one, and one that arbitrators are paying very, very close attention to. So that leaves us with the question of, okay, if the employer was using it for monitoring employees would it have been different? I think the outcome would indeed have been the opposite.

Halifax is an interesting decision out of Nova Scotia, of course. It was partially upheld on judicial review by the Nova Scotia Supreme Court and in that case the employer wanted to implement a call recording system for training and quality control purposes. I think we can all imagine having been on hold recently and hearing that the call was about to be recorded. So what happened in that case was that the union actually disputed that, despite the fact that the personal calls made by those call center agents was on a secondary line. They successfully argued with the arbitrator that that implementation of the system was an unreasonable exercise of management rights and violated the collective agreement. On judicial review, the Nova Scotia Supreme Court did uphold that finding but then overturned the finding that the implementation of that system was a privacy violation under the Municipal Government Act. So the takeaway from there is that the call recording system in that case didn't actually meet the test of fairness or reasonableness and it wasn't proportional when we were balancing the rights of management versus the rights of employees. I'm just going to pass it back to Tushar to finish off our case law summaries.

Tushar: Thank you so much, Alycia. So I've got a couple more interesting cases that I will breeze through. Just to tell you guys a little bit of a story about each one. Canadian National Railway, this was an interesting 2005 arbitration decision, with Arbitrator Picher. So what was the story about? So we have an employee who was terminated because he was allegedly performing physical activities at this home, which were incompatible with the physical restrictions that were placed on him by his physician. So unionized regulated employee, as per the collective agreement, this video surveillance evidence is collected, the employer wants to rely upon it in support of a discharge. So the union took the position that the employee wasn't doing anything improper and really stressed the one part that I think sticks out from this case, that the employer did not have proper grounds in order to undertake surveillance of the employee and the employee's private life. So this was time that was not specifically restricted to work activities. Interestingly, the arbitrator considered a long line of cases that goes right back to the 1990s, that deal with the admissibility of video tape evidence regarding an employee's private life. The arbitrator reinforced the premise that the employer needs to demonstrate that is reasonable in the circumstances to undertake surveillance, or monitoring in a sense. The employer has to also demonstrate that their surveillance was conducted in a reasonable manner. In this particular case the employee in question suffered a workplace injury, and part of the employer's concern and the rationale that they actually brought to the arbitration for purposes of the surveillance, was that the employee had recorded a greater than average record of work related incidents which called for medical attention. The arbitrator flat out disagreed. Did not accept the employer's rationale. Frankly, without even looking at the video surveillance evidence, dismissed the grievance on a balance of interest analysis. So interesting considerations from the union sector there.

Another arbitral case that we'll talk about was York Region District School Board in 2018. This was far more recent and it dealt with a similar issue as what we were talking about, what Alycia had discussed during her summary of R. versus Cole. We had the search of work related classroom computers. This was actually quite interesting. So management hears rumors that two employees, employed by the board, are maintaining an online log where they're posting untrue and inappropriate information about their co-workers. Model employees. Based on the reports by the employee's co-workers, the board had good reason to believe that the employees were using classroom laptops in order to maintain this online log. On the fateful day, the principal of the school enters one of the classrooms and notices that one of the employees, that was suspected of this activity, had actually left the laptop on and unlocked. Then they go on there to find log Google docs document. It's called log Google docs in the case law. So suspecting that it was the online log in question, where all these inappropriate and untrue statements were being made, the principal proceeds to pull out their cell phone and take a bunch of photos and capture information about this. The case actually turned on whether or not the principal was correct in doing this. Whether or not the subsequent search and seizure of the employee's laptops, the classroom laptops, was quote/unquote reasonable and we're dealing with the same issue with respect to monitoring and the right to privacy and the balancing of interests. Interestingly enough, the arbitrator's decision said that the circumstances in this particular case created a diminished expectation of privacy and the arbitrator concluded that the principal, the board had not breached employee privacy rights by searching and seizing the employee's classroom computers. Confirmed that the privacy interests must be balanced against the employer's right to manage its operations, and in this case, the arbitrator held that that balancing act favoured the employer rather than the union and the employees. I will call out that the arbitrator noted that the use of technology policies at that particular workplace did not fully remove the employee's right to privacy, however, it could significantly diminish an employee's expectation of privacy. Another key point to bear in mind, we talked about this earlier, there was a great question that came out of the Q&A. Is that statement sufficient, you know you have no reasonable expectation of privacy at the workplace, it that sufficient to meet Bill 88 compliance requirements? Probably not, however, keep in mind that Bill 88 and that other statement that we just spoke about, they serve different purposes. I think we can go over to the takeaways here. The employer had reasonable cause to search the grievors' classroom computers. Interesting outcome.

Let's do a quick rundown on the union sector case law as well as R v. Cole. Aside from noting that unionized employers operate in a completely different landscape, a legal landscape, we'll keep in mind here that there is no case law on Bill 88. This is all brand new. Royal assent date was not even a month and a half ago and that courts adjudicators, arbitrators even where all the action seems to happen, they tend to lag behind statutory changes. Even though the private arbitrations are faster, as we are well aware from the mandatory vaccination case law that is coming out now and continues to roll out from September, October, November of last year, there is still this lag in time between what we're doing and we're we might end up. So this forecasting exercise, to think about what a court or what an arbitrator might borrow from existing case law, is very important and it's an important part of our planning process when we're going to be looking at the impending October 11 compliance deadline. We will breeze over to the next slide and we are excited to pass back to Alycia to lead us through a couple of fact patterns and practical scenarios.

Alycia: This is my favourite. When we reviewing these together, kind of felt like an old law school exam, so I'm excited to go through this with the group and it's always good to see because you get the practical considerations in seeing how this might all shake out. So, I'm going to be moderating these next few fact scenarios and Tushar and Melissa are going to act as our panelists who provide their perspective on these items. So fact pattern one. ABC Co. is a non-union, Ontario based Provincially regulated employer. In response to Bill 88, ABC provides employees with a comprehensive policy which identifies that it's been using an electronic monitoring program to monitor key strokes, mouse clicks and other productivity metrics. The software automatically gives each employee a score of out 100 for each week's worth of productivity. That score is available only to HR. The software has been in use for approximately 5 years, although nobody except senior management knew about it. Several staff members approach HR and indicate that they are shocked and displeased. They tell HR that if ABC continues to use the software they will claim that they have been constructively dismissed, because the use of the software is a breach of their right to privacy at the workplace, and that they have never consented to being monitored. So, Melissa, can the employees claim that they've been constructively dismissed?

Melissa: Well, in my view, no they can't. Companies use this type of software all the time and I can guarantee you, based on even some prior litigation experience that I've had, they don't, up until this requirement and likely up until October 11, they will not tell their employees that they have keystroke log reports, or mouse clicks. This is often used in litigation, and obviously we have to deal with the admissibility of all of this evidence, but going back to the original question, sorry, is it constructive dismissal? Well let's go back to the definition of constructive dismissal. A constructive dismissal is a unilateral change made by the employer which is the fundamental change. So there is no fundamental change here. The company has been using this monitoring software clearly for 5 years. So there is no fundamental change to the terms of employment. The big difference is that the employees now know it. My argument would be that the employees are not entitled to treat this as something new simply because it was never brought to their attention before. Also note that while the claim of constructive dismissal can be brought either under the ESA or in courts, we have to go back to the guidance from the Ministry of Labour, and the Ministry of Labour specifically says the new requirement for a written policy requires employers to be transparent by providing employees with certain information about electronic monitoring. But what the requirement does not do is it does not establish a right for employees to not be electronically monitored by their employer, or it does not create any new privacy rights for employees. So while the argument, presumably would be, that the disclosure and the knowledge creates the constructive dismissal claim, I would definitely argue that this is not such a situation.

Alycia: Tushar, what are your thoughts?

Tushar: Totally agree with Melissa. No surprises there. Totally agree with Melissa. Valid points. I would add to that that may be we want to consider how do we manage these individuals. I think a key piece of managing those individuals might be to conduct a review of the policies and to look for acceptable use work devices, etcetera, etcetera, where we might have mention of this monitoring software, or the ability to conduct performance management activities, and to simply call out to the employees, hey this agreement that you swiped through 5 years ago, and here's your signature on it, maybe we have the ability to call that out. That would be helpful ammunition, I think, in response to this type of allegation or assertion and assuming that those helpful statements exist, they should be called out. Alycia?

Melissa: Alycia, one more thing to add on to Tushar's. We've had a lot of questions that tell us I have this statement in my handbook. I have this statement in my acceptable use policy. We know that employers have those kinds of statements somewhere there. Or when you log into your computer, every morning, you probably click on something that says this is a network computer of your firm, organization, whatever, and you can expect that things will be monitored. So that argument, I 100%25 agree with you, Tushar. That argument can certainly be responded to with that and I will stop talking now.

Alycia: That's a great point. Thanks so much for bringing that up, Melissa. Shannon, let's go to the second fact scenario, please. XYZ Inc. is also a non-union, Provincially regulated business with 50 employees. During the pandemic they go through massive growth and as of January 1 they employ 100 employees. So because of this growth they never got around to introducing an electronic monitoring policy, as required by Bill 88. However, the company does use a number of electronic monitoring strategies including sniffers, that seek out irregular activity on web browsers. So fast forward into the future, on October 15 the IT manager tells HR that there's an employee who's been caught stealing other employee's confidential information and selling them to unknown third parties in exchange for cryptocurrency. During the investigation the employee contacts the Ministry of Labour and notifies them that there is no electronic monitoring policy in place. That's a fun one. So, Melissa, what are your thoughts on this?

Melissa: I guess that we got to unpack the issues here. What is the employer concerned with here? What is likely to happen now as a result of that Ministry of Labour complaint? The Ministry of Labour will only enforce, again, the fact that you have a policy, or not, and whether you have delivered the policy to employees, or not. There's certainly going to be an order for compliance in this case, I presume. An employment standards officer, just as we see for instance, and there's the Occupational Health and Safety Act, if the Ministry of Labour visits us and we don't have a proper harassment policy, there's going to be an order for compliance to have a policy and then to communicate it to the employees and all of that. We have a very limited scope of enforcement under the Employment Standards Act. If you have a policy, and the other relevant compliance requirements have been met, then the Ministry of Labour will not do anything with respect to this.

Tushar: You know what? I had a couple of comments as well. I think the scenario raises a couple of possibilities because we're talking about the monitoring policy itself and, Melissa, bang on about the Ministry of Labour. There's very limited scope for any sort of a complaint to be made to the MOL so the employee's pulling the parachute, so to speak, but what if we get to termination? What if we have to rely upon this evidence in the context of a legal proceeding? Will the evidence be rendered inadmissible simply because there is no electronic monitoring policy in place? Just to recap Melissa's earlier point, and Alycia, you touched on this as well. Bill 88 is not generating a right of an employee to refuse monitoring. The whole consent piece from the last fact scenario, it doesn't actually go as far as to require consent to monitoring. There is no legislated right to privacy. The Ministry of Labour very flatly called that out. In all the Provincial announcements on this, it has been called out as well. So I think our theory at this time, because things are still in flux and still changing, is that the evidence would be admissible and a decision maker would, not necessarily restrict the evidence of this type of behaviour, because this is concerning behaviour for the employer.

Melissa: The issue here is that we have a clear violation of privacy, IT. You're going to have other policies, then you're going to be relying on this as an employer, to deal with this specific breach and the consequences of the breach, even if we get to termination. The fact that we didn't comply with our Bill 88 requirement should, hopefully, not play a role in our ability to enforce the rest of our policies.

Alycia: Yeah, so one of the things that crossed my mind, because we were talking about potentially going the litigation route, so one of the things I thought is can the employee potentially argue in response to this that the monitoring was a breach of the common law tort of intrusion upon seclusion which, as many of you know, was established by the Ontario Court of Appeal in Jones and Feedback in 2012. So that did cross my mind, could the absence of a policy potentially be an aggravating or mitigating factor in the court's determination of that. Just because I'm assuming that this employee might get a little litigious. They're not going to be happy about it. So ultimately, be on the scope of an introductory webinar, and I came to the conclusion that I don't think the absence of a policy in this regard would be considered highly offensive to a reasonable person. I think that the employer, quite understandably, has a great right to be upset about the fact that the employee's selling confidential information for cryptocurrency. So I don't think it would happen here but it was something that came across my mind as well. The other thing I just wanted to touch on Tushar's point earlier about there being no legislative right to privacy, I can say that in the course of Bill 88, as it was going through the legislature, the Ontario Privacy Commissioner did actually write submissions to the standing committee at the time, expressing that Bill 88 is really a stepping stone but there should be larger reform in the Province of Ontario with respect to employee privacy rights. So it's possible that after the election as well we might see a bigger regime that comes into place. If we could go to the last fact pattern, Shannon.

Okay. So we've got a unionized example for you all as well. So 12345 Ontario Limited is a unionized, Provincially regulated employer. It has entered into a collective agreement with the union that has bargaining rights over its inside works division and the bargaining unit is about 250 employees. The company just met with the union and notified the union steward that Bill 88 is now law. The company indicates to the union that it will be introducing an electronic monitoring policy in line with the requirements of Bill 88 by no later than October 11, 2022. The union steward immediately pushes back. She says that this is a bargaining issue and the union will only be prepared to talk about electronic monitoring if it has the ability to unilaterally veto the use of an particular monitoring software. So, Melissa, what would you say to the union steward there?

Melissa: It depends on the relationship we have with the union, how we address it and specifics. But I won't get into that. Remember, this is something that could typically happen and we got to back to what does Bill 88 require? Bill 88 requires disclosure to employees of monitoring. How and for what purposes? Because we're dealing with a unionized employer, the first place we always look at is the collective agreement. The starting point is management rights. But the key in this fact scenario is that it assumes that there are existing practices which are being disclosed. We are unlikely, if our monitoring policy says, we don't monitor, then that's all we need to do and then there were no practices. If want to introduce new practices, then the union can take issue with the introduction of those new monitor or surveillance practices. But my assumption here is that this company, 12345, already had monitoring practices and that's what's coming out in the disclosure. So if we have a consistent past practice, and previous disclosure was made to the union about those monitoring strategies, there's no issue whatsoever. This is not a bargaining issue. This is not something that the employer has to consult with the union to disclose, to comply with Bill 88. It's a statutory requirement. Now if 12345 is just starting to monitor, now when they disclose this monitoring policy through Bill 88, then we have a different concern. We may bump into issues relating to what's known as the KBP test, which is properly putting the union on notice regarding the workplace rules and changes to corporate policies, and those rules having to be reasonable and all of the factors that go with KBP, but earlier we talk about case law stretching back to the 1990s that dealt with the video surveillance, for example, and these issues are not new in the context of unionized settings. Definitely not a bargaining issue. If there is some level of monitoring already taking place, it is surveillance type of monitoring, there's a strong possibility that the union will already know about the technologies, and if the union doesn't know, then certainly we could looking at a grievance. But again, not a bargaining issue.

Alycia: Thanks, Melissa. Tushar, what are your thoughts on this?

Tushar: I'll chime in briefly on those issues as well, Melissa. I mean the collective agreements, I've seen various versions of collective agreements. I've had discussions with clients already in response to the introduction of Bill 88 because some collective agreements actually require the parties to confer or discuss. Some actually include this type of veto ability. Some establish a committee for purposes of reviewing these types of changes, and so it really depends on the common pitfalls that the employer will already be aware of, because they would have sat across the bargaining table and negotiated these issues. Two points to add to Melissa's comments. First and foremost I think is that we got to keep in mind that if there is some sort of an arbitral award on surveillance, or if there was prior arbitral case law involving the collective agreement that's before the employer and binding that particular relationship, we would need to look at those prior awards and we may need to sort of comply with those as we look forward. So looking back while looking forward. The other thing to keep in mind too, because this is squarely focused on the bargaining unit, is the previous comment that was made at the beginning of the session about scope. There are other employees, presumably, at this employer's workplace, the non-unionized employees. So Bill 88 would apply equally to them and so we do need to have an electronic monitoring policy in place for those individuals.

Alycia: Yeah, that's a great point, Tushar. So just to sum it all up, the conclusion is on this one, not really a bargaining issue, although we do believe that there's a chance that it will be framed that way. Really this is more of a management rights issue, and as Melissa mentioned earlier, you might get a potential grievance with respect to the actual use of surveillance but it shouldn't be with respect to the actual policy. Melissa, you mentioned earlier, you made some reference to the KBP test so I just want to go over that quickly for everyone. That's based on a long line of arbitral case law that discusses whether or not a policy that has been implemented is a reasonable exercise of management rights. So the conditions for that are that it cannot be inconsistent with the collective agreement. It cannot be unreasonable. It must be clear and unequivocal and it must be brought to the attention of the employee before the company can act on it. So that's just a high level KBP test for you. So, it is 9:59am so we've done really great on our timing this morning and I'm going to pass it back to Elisa.

Elisa: Thank you. Thank you, Alycia, Melissa and Tushar for a very informative session today and we will stay tuned for part 2, which hopefully will come soon once we have more information. So that will be in our part 2, but if we do have more information that comes available, please be sure to go to our new ELE landing page where we will be keeping you updated on new developments in the law including on Bill 88. Also as I mentioned, we have the right to disconnect and the remote work webinar which are available on demand, and we have the links there for you in the presentation. Finally, just a quick reminder that if you are an Ontario workplace with 25 or more employees, the deadline to have your disconnecting from work policy is coming up on June 2 so if you have not already prepared your policy and you are looking for some guidance or assistance with that, you can access a package that we have prepared which is a template policy and a checklist, through our partner vine which is also linked at the bottom of the screen on the additional resources, and I think we're putting the link in the chat as well. So if you access that link you will be taken to our package. But of course, as always, if you want to reach out to any of our ELE team they would be more than happy to assist you with that as well. So, that concludes our webinar for today. Sorry, one more point. Our survey. We would love to hear from you. Let us know how we're doing. We love to have your feedback so we can improve these webinars on a going forward basis. So if you have your phone and you want to scan our QR code so that you can complete the webinar we would greatly appreciate that. Our next webinar, in the series, is in June. June 9. That will be on An Introduction to Employment and Labour Law in Canada for US companies wanting to hire or do business in Canada. So please stay tuned for that coming up on June 9. We hope you can join us for that webinar. I hope that everyone has a wonderful day and wish everyone a wonderful long weekend.