On March 25, 2014, Federal Labour Arbitrator Christine Schmidt
determined that the Canadian National Railway Company
("CN") was in breach of section 5(3) of the Personal Information Protection and Electronic
Documents Act ("PIPEDA") after it installed a video
camera to monitor a bulletin board following the posting of
offensive material. In Canadian National Railway Company v Teamsters
Canadian Rail Conference,2014 CanLII 15954 (CA LA) Arbitrator Schmidt
found that, in the circumstances, it was not appropriate for CN to
collect personal information using video surveillance. Arbitrator
Schmidt also found that CN was not investigating either a breach of
an agreement or a contravention of a law and, as such, could not
rely on the exception to obtaining consent for collection, use, and
disclosure found in section 7 of PIPEDA.
Section 5(3) of PIPEDA states that an organization "may
collect, use or disclose personal information only for purposes
that a reasonable person would consider are appropriate in the
Section 7(1)(b) of PIPEDA states that:
(1) For the purpose of clause 4.3 of Schedule 1, and
despite the note that accompanies that clause, an organization may
collect personal information without the knowledge or consent of
the individual only if
(b) it is reasonable to expect that the collection with the
knowledge or consent of the individual would compromise the
availability or the accuracy of the information and the collection
is reasonable for purposes related to investigating a breach of an
agreement or a contravention of the laws of Canada or a
On January 29, 2013, a CN employee reported that offensive
material had been posted on the bulletin board in a booking-in
room: an unrestricted area accessible to employees, contractors,
and delivery personnel. The employee, who is gay, felt intimidated
by the anonymous posting and reported it as harassment. The
employee who made the complaint did not know who posted the
material on the bulletin board.
CN began an investigation and contacted the CN Police. The
Police determined they did not have grounds to install a
On January 31, 2013, a CN superintendent purchased a video
camera, which could not record audio. The camera was installed on
March 7, 2013 and pointed at the bulletin board. It was discovered
by CN employees on March 13, 2013 and removed by CN on March
17th. No images were recorded due to a technical error.
Between January 29, 2013 and the removal of the camera no other
offensive material was posted on the bulletin board.
The Union filed a grievance alleging that CN had breached both
the collective agreement and PIPEDA. With respect to
compliance with PIPEDA, Arbitrator Schmidt was required to
determine whether the collection of personal information without
consent by video camera was reasonable in the circumstances. In
order to do so, she considered the following questions:
Is the measure demonstrably necessary to meet a specific
Is it likely to be effective in meeting that need?
Is the loss of privacy proportional to the benefit gained?
Is there a less privacy invasive way to achieve the same
Arbitrator Schmidt determined that CN had an obligation to first
investigate the complaint through less privacy intrusive measures,
such as interviewing the employee to determine who may have been
targeting him, before considering video surveillance. She also
found that video surveillance was unlikely to lead to the
identification of the individual who posted the note and that it
would not be useful in determining whether the employee who made
the complaint was being targeted for harassment.
Additionally, Arbitrator Schmidt found that CN could not rely on
the exception to consent found in section 7 of PIPEDA. She
determined that the investigation of a harassment complaint cannot
be considered either an investigation of a breach of an agreement
or an investigation into a contravention of the law.
Arbitrator Schmidt's restrictive interpretation of the
exceptions to consent under PIPEDA is consistent with previous
jurisprudence and reinforces that privacy intrusive investigative
measures, such as video surveillance, should only be used where
other investigative means have failed, rather than at the start of
an investigation. This decision will also likely limit the ability
of organizations to collect, use, or disclose personal information
without consent when investigating harassment complaints.
Last Thursday, Canadian Securities Administrators issued a Staff Notice to provide reporting issuers with guidance for compliance with continuous disclosure obligations regarding cybersecurity risks and incidents.
Recent enforcement action by the Canadian and Australian Privacy Commissioners and the United States Federal Trade Commission provides important guidance for compliance with personal information protection laws.
In the 2002 thriller Minority Report, the pre-crime unit of the Washington police force could lawfully arrest suspects for future criminal activity based on the foreknowledge of certain psychic "pre-cogs" prior to any crime actually being committed.
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