A grievance arbitration tribunal recently ruled1 on whether it was legal for a federally regulated Canadian employer, a public transit authority, to install 27 video cameras in and around its workplace. While the tribunal affirmed that the majority of the cameras were legal, it ordered some of the ones installed inside the employer's facilities to be removed.
The Société de transport de l'Outaouais (STO) is a public transit authority that provides bus services in the Gatineau and Ottawa area. In 2007 it was chosen to benefit from a federal government program to beef up the security of urban transit operations in Canada. Experts were engaged to carry out a risk assessment and a security plan for the STO's facilities was devised. This resulted in the STO implementing a number of measures, including mandatory security and terrorism training for employees, erection of a new security fence, introduction of a system of access cards for employees, and a video surveillance system. Cameras installed outside the building were intended to detect trespassers, identify unauthorized vehicles and track the movements of the STO's bus fleet. Other cameras were installed inside the building. All employees were informed of the measures by means of an email as well as a slideshow aired over the local television network.
The 27 cameras were connected to a viewing system that allowed the captured images to be kept for 30 to 40 days. Photographs could also be created from the footage, printed and kept.
The cameras operated on a continuous basis. They did not afford panoramic views of the site, but could be moved manually to zero in on particular locations, and had high zoom capability. While the objective sought in installing the cameras was not the imposition of disciplinary or administrative measures, the evidence showed that they could be used for that purpose and that on one occasion, viewing of video footage had resulted in disciplinary action being taken.
The tribunal noted that a determination of whether the surveillance cameras were legal required an assessment of the parties' respective interests, pointing out that in accordance with the collective agreement, the employer was obliged to treat its employees with "consideration" and was entitled to issue directives, among other things for purposes of "maintaining security." The tribunal went on to apply the Personal Information Protection and Electronic Documents Act ("PIPEDA") and used the Federal Court of Canada decision in Eastmond v. Canadian Pacific Railway,2 as the foundation for its analysis, based on the following four-part test:
- Were the surveillance cameras and recording system necessary to meet a specific need of the employer?
The arbitration tribunal found that the employer, as a public transit authority, had an obligation to its users, the public and its employees to offer transportation services that were maximally safe and secure. As such, it had a specific need to provide for security against terrorism and against persons who might come onto its property with the intention of committing acts of destruction, sabotage and violence.
Even in the absence of evidence that the employer was under particular threat of theft or vandalism, in the tribunal's view, the cameras were necessary as a preventive measure.
- Were the cameras likely to be effective in meeting that need?
The tribunal accepted the expert's opinion that a video surveillance system was a security measure that was recommended for the mitigation of terrorism risk and that constituted an effective deterrent and a useful detection and investigative tool.
- Was the loss of privacy proportional to the benefit gained?
On this point, the arbitration tribunal divided the analysis between the cameras that were located outside and those that were located inside the STO's facilities. It found that the outdoor cameras, which recorded images of employees only during certain brief and occasional duties, gave rise to only minimal loss of privacy, which was reasonable and proportional to the benefit gained, among other things because the cameras were in plain sight, did not survey the employees continuously, were used primarily to monitor traffic at the entrances and exits of the premises and did not record images of any particular tasks being performed.
As for the indoor cameras, the tribunal noted that their installation did not form part of the anti-terrorism recommendations. Certain indoor cameras which did not record images of any employees did not give rise to any invasion of privacy. However, six of the indoor cameras recorded images of the employees at work, in the performance of their usual tasks, and were installed for theft prevention purposes when there was no evidence establishing that a serious theft problem actually existed. Thus the employees whose images where caught on these cameras were being watched each and every day, without valid reason, which was at odds with the collective agreement obliging the employer to treat the employees with "consideration." Use of these cameras represented an unreasonable loss of privacy and was not proportional to the benefit that was or might be gained.
- Was there a less privacy-invasive way of achieving the same end?
The arbitration tribunal found that the outdoor cameras fulfilled a function that other measures were incapable of achieving. In particular, it was not feasible for the employer to have security guards at every entrance and exit of its business establishments. Moreover, these cameras were not "collecting" personal information within the meaning of PIPEDA when they incidentally recorded a few short tasks being performed or the comings and goings of employees in the parking area or elsewhere.
The arbitration tribunal ordered the indoor cameras that kept watch over employees on a continuous basis, without valid reason, to be removed, while the installation of all the outdoor cameras and some of the indoor ones was considered reasonable and was therefore confirmed by the arbitration tribunal.
This award by an arbitration tribunal concerning a federally regulated employer affirms and applies the test developed by the Federal Court in 2004. It also underscores the reluctance of adjudicators to allow the installation of video cameras in and around workplaces unless the employer provides evidence that it has valid reasons for resorting to measures of this kind, such as theft or vandalism. The applicability or extent of the right to privacy in the workplace, which right the tribunal appears to take for granted in this case, and the scope of the term "collection" within the meaning of PIPEDA in relation to video recording and viewing, remain open questions.
1. Société de transport de l'Outaouais et Syndicat uni du transport, unité 591 (grief syndical), SOQUIJ AZ-50801767, D.T.E. 2011T 806 (Ross C. Dumoulin, arbitrator).
2. 2004 FC 852.
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