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There is an interesting and ongoing debate about whether employees, in Ontario,  have a "right to privacy" at common law.  In a recent decision, the arbitrator considered whether an employer was entitled to institute a biometric clock and, ultimately dismissed the grievance.  The arbitrator made the following obiter comment (as the case was decided on another basis):

In my view, the question here is not whether employees in unionized workplaces have privacy rights.  Clearly, they have some privacy rights, although those rights are not absolute.  It is hard to believe anyone would argue otherwise.

I'm not entirely certain what "argue otherwise" refers to.  Is it that there is a right to privacy?  or that it is not absolute?  In either case, it assumes the existence of a right and this is something that has been hotly debated in almost every case where surreptitious surveillance is resorted to and the employer attempts to tender that evidence at arbitration.  The Union objects, relies upon those cases coming out of BC (where there is a statutory privacy right) and transplanted into Ontario where the test for admissibility is "reasonableness".  The employer argues that there's no legitimate basis for subjecting the admissibility of video surveillance evidence to a different test than the "usual" test of "relevance".  This latter approach argues that there is no right of privacy that needs to be balanced against the employers right to manage the business. 

So, whether a right to privacy exists is argued "otherwise" in that context at least, sometimes successfully (see this post and the line of cases where arbitrators and others have questioned the existence of this right to privacy). The context (biometric clocks and admissibility of surreptitious surveillance evidence may be different and require a different focus, though the discuss of "right" seems equally applicable to both). It's an interesting topic (to me at least).

See Dan Michaluk's excellent discussion of the case in broader terms.

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