Workplace Privacy in Ontario: An Employer's Guide to Employee Monitoring

Workplace privacy in Ontario is governed by a patchwork of rules, not a single comprehensive statute. Ontario employers are legally allowed to monitor employees electronically, but since 2022 most of them have been required to be transparent about it. If you employ 25 or more people, you must maintain a written electronic monitoring policy in Ontario under Part XI.1 of the Employment Standards Act, 2000. This guide explains what that policy must contain, where the common law still limits surveillance, and how to monitor your workforce lawfully.

The key thing to understand at the outset is that Ontario's framework imposes a transparency obligation, not a blanket prohibition. Disclosure is mandatory. Restraint is largely a matter of good judgment and a handful of common-law limits. For employers, that means the legal risk usually comes from monitoring in secret or in places where employees reasonably expect to be left alone, not from monitoring itself.

At Hadri Law, we draft and audit workplace policies for Ontario employers, and the electronic monitoring policy is one of the most frequently overlooked compliance documents we encounter. Getting it right is straightforward once you understand the rules.

Do Ontario Employers Need a Written Policy on Employee Monitoring?

Yes. Ontario employers with 25 or more employees must have a written electronic monitoring policy under Part XI.1 of the Employment Standards Act, 2000, added by the Working for Workers Act, 2022. The policy must disclose whether monitoring occurs, what types are used, and for what purposes. It does not create new employee privacy rights. It creates a transparency obligation.

This requirement came into force on April 11, 2022, when the Working for Workers Act, 2022 (SO 2022, c 7) amended the Employment Standards Act to add Part XI.1. (Working for Workers Act, 2022) Ontario was the first province in Canada to mandate this kind of disclosure, and it remains one of the few jurisdictions with a specific electronic monitoring rule for provincially regulated employers.

The Electronic Monitoring Policy: What It Is and Who It Covers

The written electronic monitoring policy is the centre of Ontario's regime, so it deserves the most attention from employers.

Who has to have one

The obligation applies to employers who employ 25 or more employees on January 1 of any given year. The headcount is measured on that single date. If you cross the threshold, you must have a written policy in place by March 1 of that same year. (ESA Part XI.1) Employers who already had 25 or more employees on January 1, 2022 were given a transitional deadline of October 11, 2022 to put their first policy in place.

If your headcount sits below 25 on January 1, you have no obligation under Part XI.1 for that year, even if you hire well beyond 25 employees in the months that follow. The threshold is reassessed each January 1, so a growing business should track its count carefully.

What the policy must say

Under the legislation, a written electronic monitoring policy must contain the following:

• Whether the employer electronically monitors employees, and if so:
• A description of how and in what circumstances the employer monitors employees
• The purposes for which information obtained through monitoring may be used
• The date the policy was prepared and the date of any changes to it

The Ontario government's plain-language guide confirms that an employer who does not monitor at all still has to say so in writing if it meets the headcount threshold. (ESA Guide: Written policy on electronic monitoring) Silence is not an option once you reach 25 employees.

Distribution and record keeping

Disclosure only works if employees actually receive the document. The employer must provide a copy of the written policy to each of its employees within 30 days of the policy being prepared or, if an existing policy is changed, within 30 days of the changes being made. New hires must receive a copy within 30 days of their start date.

You must also retain a copy of every written electronic monitoring policy for three years after it ceases to be in effect. (ESA Policy and Interpretation Manual, Part XI.1) Keeping superseded versions matters. If a dispute ever arises about what employees were told, the dated historical policies are your evidence.

The critical limitation employers should understand

Here is the point that surprises many business owners. The Employment Standards Act is explicit that nothing in Part XI.1 affects or limits an employer's ability to use information obtained through electronic monitoring. The statute requires you to tell employees what you do. It does not tell you what you are allowed to do with the results. (ESA Part XI.1)

In practical terms, that means a properly disclosed monitoring program gives the employer broad latitude. The policy can be a standalone document or built into an existing HR manual, and it covers monitoring on both employer-owned devices and employee-owned devices used for work. The transparency obligation is the price of entry, not a cap on the use of what you collect.

What Counts as Electronic Monitoring?

The Act does not list every monitoring technology, so employers should read the term broadly and disclose anything that captures information about employee activity. If you use any of the following, your policy should describe it.

• Computer activity monitoring, including keystroke logging, cursor tracking, screen recording, and website or browser history
• Email and instant message monitoring on corporate accounts
• GPS tracking on company vehicles, phones, or other devices
• Smartphone tracking, whether on a company-issued phone or a personal phone used for work
• Video surveillance and security cameras on workplace premises
• Facial recognition built into camera systems
• Remote-work productivity tools, including periodic screenshots, activity timers, and idle-time tracking

Audio recording deserves a separate warning. Secretly recording private conversations can engage the Criminal Code, which makes it an offence to wilfully intercept a private communication. Employers should not deploy covert audio recording, and any recording program should be built only with clear notice and, where appropriate, consent. This is an area where legal advice before deployment is strongly recommended.

Why PIPEDA Usually Does Not Cover Ontario Employees

Many Ontario employers assume the federal Personal Information Protection and Electronic Documents Act governs how they handle employee data. For most of them, it does not.

PIPEDA applies to the employee personal information of federally regulated employers only. Banks, airlines, telecommunications companies, interprovincial trucking firms, and federal Crown corporations fall into this category. (PIPEDA in brief, Office of the Privacy Commissioner of Canada) For the vast majority of Ontario private-sector businesses, which are provincially regulated, PIPEDA does not apply to their employees' personal information.

The reason is constitutional. Employment in most sectors falls under provincial jurisdiction, so the federal employee-privacy rules in PIPEDA simply do not reach a typical Ontario employer. Unlike Alberta and British Columbia, Ontario has not enacted a general private-sector privacy statute covering provincially regulated employees. (Privacy in the workplace, Office of the Privacy Commissioner of Canada)

One important caveat: PIPEDA still applies to the personal information you collect in the course of commercial activity, such as customer data. The inapplicability discussed here is specific to employee personal information in provincially regulated workplaces. Do not conclude that PIPEDA is irrelevant to your business as a whole.

So where do employee privacy rights in Ontario actually come from? In a non-unionized provincially regulated workplace, they come from a combination of sources:

• The ESA Part XI.1 transparency obligation
• The common-law tort of intrusion upon seclusion
• The Ontario Human Rights Code, where monitoring discriminates on a protected ground
• Employment contracts and workplace policies
• The Criminal Code, in the case of secret audio interception

This fragmented framework is exactly why a well-drafted written policy matters. Disclosure is the one thing Ontario law clearly demands, and it is the easiest protection for an employer to put in place.

The Common-Law Limit: Intrusion Upon Seclusion

Even without a comprehensive privacy statute, Ontario employers are not free to do whatever they like. The common law supplies an independent limit through the tort of intrusion upon seclusion, recognized by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32. (Jones v. Tsige, 2012 ONCA 32 (CanLII))

To establish the tort, a plaintiff must show three things:

1. The defendant's conduct was intentional, which includes recklessness
2. The defendant invaded, without lawful justification, the plaintiff's private affairs or concerns
3. A reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish

In Jones v. Tsige, the Court indicated that damages for this tort, where no actual financial loss is proven, would generally be modest, up to a range of $20,000. The case itself involved one bank employee repeatedly accessing the personal banking records of a co-worker, not an employer monitoring its staff. Courts have since considered the tort in a range of contexts, and the case law continues to develop, so employers should treat the framework as a guide rather than a fixed ceiling.

What does this mean in practice? Disclosed, proportionate, work-related monitoring that is described in a written policy is unlikely to meet the "highly offensive" threshold. The reasonable person does not generally find it shocking that work email on a company server is monitored, or that a company vehicle carries GPS. Covert surveillance is a different story. A hidden camera in a washroom or change room, or secret recording in a space where employees reasonably expect to be private, would readily satisfy all three elements and expose the employer to real liability. The line, in short, is between open and proportionate monitoring on one side and secret, intrusive monitoring on the other.

Reasonable Expectation of Privacy at Work

Ontario courts accept that employees keep some reasonable expectation of privacy at work, even when they are using employer-owned equipment. That expectation is reduced compared with the privacy a person enjoys at home, but it does not disappear at the office door.

A clearly communicated policy is the single most powerful tool an employer has to manage that expectation. When monitoring is disclosed in advance, employees cannot credibly claim they believed their work activity was private, and the monitoring is far more likely to be upheld. Undisclosed monitoring, by contrast, is much more vulnerable to challenge, which is one more reason the ESA written policy is so valuable.

Two further risks are worth flagging. First, surveillance can become so pervasive that it fundamentally changes the employment relationship. In extreme cases, monitoring that makes continued employment intolerable could support a constructive dismissal claim, though Ontario courts set a high bar and these cases are uncommon. Second, the Ontario Human Rights Code sits on top of everything. Monitoring that is targeted in a way that discriminates on a protected ground, such as disability, family status, or religion, can amount to a human rights violation entirely separate from the ESA.

A final note on scope. This guide addresses non-unionized workplaces. In a unionized environment, a collective agreement and the arbitration case law that interprets it can impose stricter limits on monitoring than the common law alone. Unionized employers should review their specific agreement before changing any monitoring practice.

Best Practices for Compliant Employee Monitoring in Ontario

For Ontario employers, compliance is mostly a matter of discipline and documentation. The following checklist reflects the steps we walk clients through.

Start with the written policy itself:

• Confirm whether the policy states clearly that monitoring does, or does not, occur
• Identify every type of monitoring you use, including email, GPS, screen capture, and cameras
• Explain the business purpose behind each type of monitoring
• Have the policy reviewed by employment counsel before it is circulated
• Distribute it to all employees within 30 days, and to new hires within 30 days of their start date
• Put the preparation date and any revision dates on the face of the document
• Save superseded versions for at least three years after they cease to be in effect

Then turn to your monitoring practices on the ground:

• Limit GPS tracking to work hours and legitimate business purposes, and disable it outside working hours where feasible
• Place cameras in public-facing or shared workplace areas only, never in washrooms, change rooms, or other spaces where privacy is reasonably expected
• Avoid secret audio recording entirely, and use conspicuous signage wherever recording occurs
• Collect only what you need for the stated purpose, rather than gathering data for its own sake
• Do not capture keystrokes or screenshots on personal devices without clear disclosure
• Update the written policy before you deploy any new monitoring technology

Two risk areas deserve extra attention. Remote work has expanded the surface area of monitoring, drawing in home networks, camera backgrounds, and activity-tracking software. Ontario's rules capture monitoring on employee-owned devices used for work, so your policy must reflect any remote-work tools you use. Separately, third-party monitoring vendors sometimes collect more data than the employer realizes. Review your software vendor agreements carefully, because what the vendor gathers is ultimately your responsibility to disclose and defend.

When to Involve an Employment Lawyer

Most monitoring questions are manageable in-house, but several situations call for legal advice before you act:

• Drafting or auditing an electronic monitoring policy for compliance with ESA Part XI.1
• Rolling out video surveillance, GPS tracking, or AI-based monitoring tools for the first time
• Responding to an employee complaint about surveillance
• Defending a constructive dismissal claim or a privacy-related action
• Running a federally regulated business, where PIPEDA does apply to employees and the obligations differ
• Operating across multiple provinces, where Alberta and British Columbia privacy statutes add requirements Ontario does not have

Our Toronto workplace policy lawyers draft and audit electronic monitoring policies that satisfy Part XI.1 and reflect what your business actually does, and our broader employment law team advises on the disputes that monitoring can trigger. If you want context on the wider wave of reform that produced these rules, our analysis of the Working for Workers Acts traces how Ontario's employment standards have evolved. Employers concerned about protecting sensitive data alongside monitoring may also benefit from reviewing their confidentiality agreements.

Frequently Asked Questions

Can my employer monitor my computer in Ontario?

Yes. An Ontario employer may monitor an employee's work computer, including email, browsing, and screen activity. If the employer has 25 or more employees, it must disclose that monitoring in a written electronic monitoring policy. Monitoring that is disclosed and proportionate is generally lawful, while secret monitoring is far more vulnerable to a legal challenge.

Is it legal to have cameras in the workplace in Ontario?

Cameras in the workplace are legal in Ontario when used for legitimate business purposes such as security, and when their use is disclosed in the employer's written policy. They must never be placed in washrooms, change rooms, or other areas where employees have a reasonable expectation of privacy. Hidden cameras in private spaces can give rise to liability for intrusion upon seclusion.

Can an employer track my location with GPS in Ontario?

Yes, an employer can use GPS to track a company vehicle or device for legitimate business purposes, provided the practice is disclosed in the written electronic monitoring policy where one is required. Best practice is to limit tracking to working hours and to disable it outside work where possible, so the monitoring stays proportionate to its purpose.

Can an employer read my work emails in Ontario?

Generally yes. Email sent and received through an employer's systems is usually subject to monitoring, particularly where the employer has disclosed the practice in a written policy. Employees retain a reduced expectation of privacy on work accounts, so the clearer the disclosure, the stronger the employer's position if the practice is ever questioned.

Can an employer secretly record employees in Ontario?

Secret recording is high risk. Covert video in private spaces can support a claim for intrusion upon seclusion, and secretly intercepting private conversations can engage the Criminal Code. Employers should avoid covert audio recording, rely on conspicuous signage where recording occurs, and seek legal advice before deploying any recording technology.

Does the Working for Workers Act affect employee privacy rights in Ontario?

The Working for Workers Act, 2022 added the electronic monitoring policy requirement to the Employment Standards Act, 2000. It created a transparency obligation rather than a new privacy right. Employers with 25 or more employees must tell staff whether and how they are monitored, but the Act does not restrict how the employer uses the information it collects.

Sources & Official Resources

Ontario Statutes Cited

1. Employment Standards Act, 2000: Part XI.1, Written Policy on Electronic Monitoring of Employees
2. Working for Workers Act, 2022: SO 2022, c 7

Federal Statutes Cited 3. Criminal Code, RSC 1985, c C-46: Section 184, Interception of Private Communications 4. Personal Information Protection and Electronic Documents Act (PIPEDA)

Ontario Government Guidance 5. ESA Guide: Written Policy on Electronic Monitoring of Employees (Ontario.ca) 6. ESA Policy and Interpretation Manual: Part XI.1, Written Policy on Electronic Monitoring

Federal Government Guidance 7. PIPEDA in Brief (Office of the Privacy Commissioner of Canada) 8. Privacy in the Workplace (Office of the Privacy Commissioner of Canada)

Case Law 9. Jones v. Tsige, 2012 ONCA 32 (CanLII)

Contact Hadri Law

Ontario's electronic monitoring rules put the burden squarely on employers to get the policy right before a complaint arises, not after. If you need to draft a written electronic monitoring policy, audit an existing one, or roll out new surveillance technology in compliance with the Employment Standards Act, getting the policy in order early is the simplest way to protect your business.

Hadri Law drafts and audits workplace policies for Ontario employers, including electronic monitoring policies that satisfy ESA Part XI.1 and reflect your actual monitoring practices. Learn more about our workplace policy services and our employment law practice.

Call (437) 974-2374 for a free consultation. We serve clients in English, French, Spanish, and Catalan.

This article provides general information and is not legal advice. Every situation is different. Contact a lawyer to discuss your specific circumstances.