By: Daniel Michaluk

To what extent can an employer help law enforcement officials investigate an employee or former employee? Can you hand over a personnel file to aid a police investigation? Does it matter if you independently suspect that an employee is engaged in wrongdoing?

These issues are very relevant today. Employers hold significant stores of personal information about employees and former employees, and police and other law enforcement agencies understand that employers are an important source of potential information about suspects and others. If police can get a search warrant or production order, they might, but they will also often approach employers with simple requests for information, perhaps because they are seeking the information because it is generally assistive and cannot meet the legal standard of suspicion needed to obtain a judicial order. What’s an employer to do?

Most Ontario employees have no statutory privacy rights under plenary privacy legislation. The exception is employees of federally-regulated employers, who enjoy rights under PIPEDA. PIPEDA, however, leaves federally-regulated employers with a choice. Provided a law enforcement request for personal information about an employee meets several formal requirements, none of which include judicial authorization, PIPEDA-regulated employers will not breach their statutory obligations by answering a request even though they are not legally compelled to provide the information.

This would appear to leave all Ontario employees with a policy choice. An employer may ask, “Should I favour the public interest in law enforcement?” Or, “Should I favour employee personal privacy?” Or, “Do I try to find a middle ground, and demand that the police provide us with information to satisfy us their request is really helpful or necessary to the ongoing investigation?”

Whether an employer has a completely free hand in setting policy is not yet clear, but there is a notable risk of civil liability associated with disclosing employee personal information in response to a mere letter request. This risk has become more real for two reasons. First, recent case law developments have recognized the validity of tort-based privacy claims. Second, in recent criminal law cases courts have demonstrated considerable discomfort with the liberal disclosure rule embedded in PIPEDA.

Though there has not yet been a decided civil case in Ontario in which an employee has sued an employer for a voluntary disclosure to the police, in a criminal case last year the Ontario Superior Court of Justice held that the police violated a defendant’s right to be free from unreasonable search by obtaining a copy of his personnel file from his former employer. This decision suggests that employees have a reasonable expectation of privacy in their personnel files unless there is an employer policy that would weigh against such an expectation. Criminal defendants who obtain such a declaration in a criminal case may then turn to the disclosing employers for civil redress.

Does it make a difference if the employer suspects wrongdoing independently of the police? Yes. PIPEDA-regulated employers are allowed to initiate a disclosure to law enforcement officials based on a reasonable suspicion. There is a strong public policy underlying this exception that, unlike the policy underlying the responsive disclosure exemption, has not been challenged. Employers should control the risk of being too quick to report by requiring internal legal counsel involvement, but employers (and citizens in general) are relatively free to report suspected wrongdoing to the police.

We urge employers to be cautious regarding the matters we have discussed, and in particular in volunteering information to the police. Fortunately for employers, one of the features of the “reasonable expectation of privacy” concept is that it can be shaped by communication. Prudent employers will define their policy position in advance, and will clearly notify their employees what personal information they will treat as public and what personal information they will disclose in response to bona fide police inquires (if any). Good policy will also establish roles and responsibilities regarding initiating reports of wrongdoing.

For further information, please contact Daniel J. Michaluk (Toronto) at 416.864.7253, or your regular Hicks Morley lawyer.