On December 11th, Alberta labour arbitrator Allen Ponak issued an award ruling that e-mails produced from a forensic analysis of an employee’s work computer were admissible in evidence.
The employer retained a forensic IT specialist to conduct the analysis after terminating the grievor (a college professor) for engaging in inappropriate relationships with at least three students. When it conducted the search, the college already had received a complaint from one student, had found corroborative evidence in the grievor’s e-mails sent and received on its own e-mail system (the admissibility of which was not challenged) and had received a corroborative report from another individual. The college claimed that conducting word searches by the names of the grievor’s former students was the most effective way of determining whether he had engaged in additional inappropriate relationships.
Arbitrator Ponak admitted the evidence on a rather unremarkable application of the Doman Forest Products three-part test. At the outset, however, he did comment on the expectation of privacy the grievor had in information sent and received through a hotmail account but on a computer owned by the college.
We start from the premise that employees have some expectation of privacy in the receipt and transmission of emails from an internet provider that is not their employer’s (Weir; McIsaac et al.). Thus, it was reasonable for the Grievor to believe that emails on his hotmail account were beyond the reach of the College. In the Board’s view, if the Grievor’s hotmail was exclusively located on the Grievor’s own private computer it would be inadmissible without the Grievor’s consent. The Grievor, however, used the computer provided to him from the College for some of his hotmail email, changing the circumstances. The College computer was intended primarily for College work and it belongs to the College, factors which give the College some rights to access that computer. The Grievor’s right to privacy for the contents of the College computer is not absolute. At the same time, recognizing that the policy against using the College computer for non-College matters has not been rigidly enforced (if enforced at all), the Employer’s access to the contents of the computers it provides its employees is not unfettered either. The Employer’s right to search the contents of an employee’s computer must be balanced against an employees expectation of privacy and is subject to a test of reasonableness.
Arbitrator Ponak did find that the search was conducted in a reasonable manner, but in doing so did not specifically endorse the narrow search protocol used by the college as preferable to a broader search protocol or manual review. This demonstrates a more “hands off” approach to scrutinizing a reasonable grounds investigation than demonstrated in the recent and well-known University of British Columbia case, which I discussed here and here.
Re Lethbridge College and Lethbridge College Faculty Assn. (Bird Grievance),  A.G.A.A. No. 67 (Ponak) (QL).