Employee surveillance at work in Ontario is becoming increasingly common as employers adopt productivity-tracking tools, keystroke monitoring software, and artificial intelligence systems designed to analyse employee behaviour.
For instance, TD Bank recently revealed that it planned to do its part to make the world a touch more dystopian, announcing to its employees that it would be implementing “productivity-tracking” software on its work devices. For those who don’t speak corporate euphemism, that translates to “invasive surveillance of its employees”, which in this case comes with the added bonus of using “artificial intelligence” to analyze the results of said surveillance.
While these systems are often described in corporate terms such as “performance optimization” or “productivity insights,” they can amount in practice to continuous workplace monitoring.
In many cases, employees are not informed of the full extent of this surveillance until it is already in place. This raises important questions about privacy expectations at work, the limits of employer monitoring, and whether significant changes to working conditions could impact the employment relationship itself.
Using the TD Bank example, this blog will examine employee surveillance at work in Ontario.
Quick Overview (TL;DR:)
Employee surveillance at work in Ontario is legal in many cases, but employers must disclose monitoring policies and act reasonably. Excessive or intrusive monitoring, especially when introduced after employment begins, may fundamentally change the employment relationship and potentially support a constructive dismissal claim.
Is employee surveillance legal in Ontario workplaces?
Yes, employers in Ontario can monitor employees at work, but they must comply with privacy-related policies and provide notice of electronic monitoring. Excessive or intrusive surveillance may still raise employment law concerns, including constructive dismissal.
What Is employee surveillance at work in Ontario?
Employee surveillance at work in Ontario generally refers to employer monitoring of employee activity through digital tools such as:
- keystroke tracking software
- screen capture or screenshot tools
- email and browser monitoring
- productivity and activity analytics software
- AI-based behavioural tracking systems
While often justified as productivity management, these tools can significantly expand the level of employer oversight.
Is TD’s surveillance of its employees legal?
Yes. TD’s decision to surveil its employees obviously creates significant privacy concerns around broader employee monitoring and the surveillance technologies employers use. Employees don’t tend to enjoy it, or do their best work, when they’re aware that Big Brother is monitoring their keystrokes, mouse movements, vital signs, video surveillance, and gps tracking.
Unfortunately, there is little by way of workplace privacy protection for Ontario’s employees, save for a fairly toothless piece of 2022 legislation that requires employers to have a written policy governing electronic surveillance of employees, including what is being monitored and how it will be used, but has no actual restrictions on either of those categories. Under Ontario laws, employers with 25 or more employees must provide that policy within 30 days of preparing or changing it and have one in place by March 1 each year. That notice regime does not create meaningful consent requirements or broader employee rights, and employers should not confuse it with full compliance with privacy laws.
Can TD’s surveillance lead to constructive dismissal?
Yes. If we look at the TD case – TD’s decision can be viewed as cutting to the heart of its employment agreements. These employees signed up to be judged by the value of their work, not by screen time, and by an employer treating them with respect and professionalism. TD can say this serves a business need or point to potential benefits, but a regime built around keystrokes and compliance rather than impact or judgment uses overpriced surveillance tools that are not proven to increase productivity and could have the effect of fundamentally breaching the employment contract that its employees agreed to.
In Ontario, there is little by way of broad privacy protection against this kind of monitoring, but employers covered by the electronic monitoring rules must have a written policy in place by March 1, must disclose monitoring practices to employees within 30 days, and must share the policy within 30 days of preparing it or for new hires within 30 days of hire. Unfortunately, those notice requirements are not the same as obtaining consent, and wider workplace privacy and employee rights concerns can still remain despite these limited legal protections.
If this is seen as a breach of the employment contract, employees would be within their rights to resign and claim severance on the basis that they have been constructively dismissed. If enough of TD’s employees threaten to do so, it may even make the bank rethink its strategy of treating its employees like the robots it hopes to one day replace them with.
Are employers allowed to monitor employees in Ontario?
Yes. Ontario does not have comprehensive private-sector privacy legislation that strictly limits workplace monitoring.
However, under Ontario’s workplace electronic monitoring requirements, employers must have an employer’s policy in place that explains whether and how monitoring takes place during work hours. In practice, those workplace policies should describe what is being monitored and how the information is used and stored. Evaluating people by results is very different from tracking keystrokes or screen time, and this kind of monitoring is not proven to increase productivity. From a business perspective, it can also reduce motivation and initiative by shifting attention toward compliance instead of meaningful performance. High-performing employees may view that approach as a lack of trust and start looking elsewhere.
Importantly, these rules do not prohibit surveillance, they only require disclosure.
Why employee surveillance at work raises legal concerns?
Even where monitoring is technically permitted, employee surveillance at work in Ontario can create legal and practical concerns.
Excessive surveillance may:
- undermine trust in the employment relationship
- change the fundamental nature of the job
- increase stress and workplace anxiety
- raise concerns about fairness in performance evaluation
The legal issue is not just whether monitoring exists, but how extensively it changes the working relationship.
Can workplace monitoring lead to constructive dismissal?
Yes. When employee surveillance is introduced in a way that significantly alters the terms of employment, it may support a claim for constructive dismissal, even where the employer says it is needed for security concerns or protection of confidential information
This can occur where:
- employees were not clearly informed of the extent of surveillance, including gps tracking on a delivery route
- the monitoring changes performance expectations or evaluation methods
- the employee relationship is fundamentally altered
An employee may argue they were effectively forced to resign and are entitled to severance.
Legality often turns on the location being monitored and whether employees had a reasonable expectation of privacy there. Surveillance in public areas has different legal implications than in private spaces, and hidden cameras in private areas are never permitted under Ontario law.
Monitoring should serve a clearly defined legitimate purpose and match legitimate business needs without unnecessary detail.
How workplace surveillance affects trust and performance?
While employers often adopt monitoring tools to increase productivity, employee surveillance can have the opposite effect.
Common workplace impacts include:
- reduced morale and engagement
- increased employee anxiety
- lower trust in management
- concerns about constant evaluation rather than outcomes
These effects can become relevant in assessing whether the employment relationship has been fundamentally altered.
What should employees do if they are being monitored?
Employees who become aware of workplace surveillance should:
- review any written electronic monitoring policy
- document when monitoring was disclosed or implemented
- assess whether job conditions have materially changed
- seek clarification from HR where appropriate
Trust plays a critical role in whether monitoring improves accountability or instead produces negative effects, especially in remote work and hybrid work settings. Workers who feel constantly or electronically monitored may experience mental health strain and a worse work environment. Surveillance perceptions increase psychological distress in workers, and job pressures from surveillance help explain that distress. Monitoring can induce anxiety, narrow cognitive focus, and inhibit creativity, contributing to a climate of intimidation and resentment. If surveillance appears excessive or undisclosed, legal advice may be appropriate.
Can surveillance policies be challenged legally?
Yes, but not simply because monitoring exists.
Legal challenges typically arise when:
- surveillance is implemented without proper notice
- monitoring is excessively intrusive
- surveillance changes core employment conditions
- monitoring contributes to a constructive dismissal claim
Frequently Asked Questions
Is employee surveillance legal in Ontario?
Yes. Employers can monitor employees but must provide notice through a written electronic monitoring policy.
Can employers track keystrokes and screens in Ontario?
Yes, employers may use monitoring software, including keystroke and screen tracking, as long as employees are informed.
Can workplace surveillance lead to constructive dismissal?
Yes. If monitoring significantly changes the employment relationship, it may support a constructive dismissal claim.
Do employees have privacy rights at work in Canada?
Yes, but they are limited. Employers must act reasonably and provide transparency around monitoring.
What should I do if my employer is monitoring me?
Review the policy, document changes, and seek legal advice if surveillance appears excessive or undisclosed.
Can AI be used to monitor employees at work?
Yes, but employers must still comply with notice and transparency obligations under Ontario workplace rules.
How can Whitten and Lublin help?
Employers often roll out new policies without employee consultation, with the expectation that they will simply go along with it. If you are concerned about employee surveillance at work in Ontario or believe new monitoring practices have changed your employment conditions, the employment lawyers at Whitten & Lublin can help you understand your rights and options.
Whitten and Lublin is here to help you navigate your options. Contact us online or by phone at (416) 640-2667.
