Joshua Lerner Quoted in the Globe and Mail

In the piece, “Is it legal for my boss to ask me to take a picture or video of a co-worker for evidence?” Joshua emphasizes that such requests raise serious legal concerns, particularly around privacy rights. 

Your instincts are right. This request could be a problem for you, not just your colleague. What your manager is asking you to do is both legally and ethically questionable, and could cross the line into privacy law or even criminal law territory. 

Let's start with privacy. Secretly photographing or filming a coworker at their desk, especially when you're capturing what's on their personal phone screen, can amount to an invasion of privacy under Ontario common law. The person who actually takes the pictures – you – can be sued personally, not just your employer. And if your phone happens to pick up audio of their conversations or calls, you could even be running into Criminal Code territory, because recording a private conversation you're not part of is an offence. 

Now, the workplace side. Legislation varies by province, but in Ontario, employers with 25 or more staff are required to disclose in writing how they monitor employees. Asking a coworker to do it covertly is the opposite of that approach, and isn't how legitimate performance concerns get addressed. You do not need to be your employer's spy. 

Can you be disciplined for refusing? An employer can only discipline you for refusing a lawful and reasonable instruction; this request is arguably neither. Firing you outright for saying no would be hard to justify. 

Here's how I would recommend dealing with this situation. Don't take the photos. Document the request and respond to your manager in writing. A simple reply works: "I'm concerned this could be seen as an invasion of my coworker's privacy and I'm not comfortable secretly recording or photographing them." 

Ask them to put any further instructions in writing and confirm HR has approved. Keep notes of every exchange. If the pressure continues or you face discipline, speak with an employment lawyer before doing anything further.