This article was originally published in Blakes Bulletin on Labour & Employment in September 2005
Article by Brian Thiessen & Jessica Bullock, ©2005 Blake, Cassels & Graydon LLP
Video surveillance of employees constitutes the collection of personal information and the consent of the individual whose personal information is being collected will be required, unless the employer relies on an exception provided within the legislation.
In Canada, an employee’s right to privacy is considered fundamental. However, courts and arbitral tribunals consistently find that this right is not absolute and that, in proper circumstances, it may give way to the interests of the employer.
In considering the legal ramifications of the use of video surveillance by an employer, care must be taken to differentiate between surveillance conducted for security reasons and surreptitious surveillance. Surreptitious surveillance has the greatest potential to affront the privacy rights of employees and, as a result, requires strict justification by the employer.
Canada enacted privacy legislation protecting personal information in 2001, namely the Protection of Personal Information and Electronic Documents Act (PIPEDA). Quebéc has provincial privacy legislation, as do Alberta and British Columbia. PIPEDA governs “federal works and undertakings” such as railways, airlines, banks, and inter-provincial and inter-state trade, and provincial privacy legislation governs all other industries in those provinces with provincial privacy legislation. For all other provinces, including Ontario, the federal PIPEDA governs most industries.
Under PIPEDA, all organizations must obtain consent prior to the collection, use or disclosure of an individual’s “personal information”. However, the consent of individuals is not required in certain exceptional circumstances. Of most relevance is PIPEDA Section 7(1)(b) which permits the collection of personal information without the knowledge or consent of the individual, if knowledge or consent would compromise the availability or accuracy of the information, or if the information is collected in the process of investigating the breach of an agreement or a contravention of the laws of Canada or a province.
The Federal Privacy Commissioner has stated that video surveillance of employees constitutes the collection of personal information and accordingly, the consent of the individual whose personal information is being collected will be required. To justify collection without consent, employers have almost universally relied upon (or attempted to rely upon) s. 7(1)(b) of PIPEDA and stated the video surveillance was conducted for the purpose of investigating a breach of the employment agreement.
Video Surveillance For Security Purposes
The impact of PIPEDA upon ongoing video surveillance for security reasons in the workplace was judicially considered by the Federal Court of Canada in Erwin Eastmond v. Canadian Pacific Railway & Privacy Commissioner of Canada (Eastmond).
In Eastmond, the complainant, a unionized employee at Canadian Pacific Railway (CP), filed a complaint with the Federal Privacy Commissioner regarding CP’s installation of six digital recording surveillance cameras in its mechanical facility area. Unlike previously installed cameras that were focused on the trains, these cameras were focused on the door entrances and exits. Eastmond complained that the installation of these cameras was unacceptable because they were installed in secrecy and without union consultation. He further argued there was no security problem that could justify this invasion of privacy and, as the system could be used to monitor the conduct and work performance of workers (which would be an affront to human dignity), there would be a resulting negative effect on workers’ moral and the working climate.
CP responded that the installation of the cameras was necessary to reduce vandalism and deter theft, to reduce its potential liability for property damage, and to provide security for staff. In support of these reasons, CP cited two incidents of vandalism and two incidents in which female employees had reported feeling vulnerable.
In its analysis of the alleged PIPEDA violation, the Federal Court framed the issue in terms of whether a reasonable person would consider the rationale given by CP for conducting its video surveillance appropriate in the circumstances. The court adopted the same four-part test applied by the Federal Privacy Commissioner who had considered the case: 1) Is the measure demonstrably necessary to meet the specific need? 2) Is it likely to be effective in meeting that need? 3) Is the loss of privacy proportionate to the benefit gained? 4) Is there a less privacy-invasive way of achieving the same end?
The Federal Court held that CP had identified numerous past incidents that justified the need to have video surveillance. It also held that video surveillance was useful to deter theft, vandalism and trespassers, as well as to enhance the security of its employees and for investigations. The court noted that the collection of personal information was not surreptitious or continuous, nor was it limited to CP employees in that it also captured the images of contractors, visitors, suppliers and trespassers. Moreover, the collection was not intended to measure an employee’s work performance, and images collected could not be used to measure productivity because such use would be for purposes other than those for which it had been collected. More importantly the recorded images were kept under lock and key and not viewed unless an incident was reported. Finally, the court concluded that there was no alternate way for CP to achieve the same result in a less invasive way. It found alternatives such as fencing and the use of security guards to be too costly and disruptive to CP’s operations.
Having reached this conclusion, the court then turned to the question of whether the employee’s consent was required to collect the information. The court found that CP could collect Eastmond’s personal information without his consent under the exception found in section 7(1)(b) of PIPEDA.
Surreptitious Video Surveillance
In circumstances where employers suspect employee misconduct, surreptitious video surveillance is often considered to determine if the employee is committing the alleged wrongdoing. However, surreptitious video surveillance is considered collection of personal information without an individual’s knowledge or consent. As a result, if the collection of the videotape evidence does not fall within one of the exceptions set forth in the privacy legislation, an employer will be found to have contravened the applicable legislation, and may be subject to a damages award.
The federal and Alberta Privacy Commissioners have indicated they will rely on the test set out by labour arbitration boards to determine if surreptitious videotape surveillance conducted on an employee(s) is reasonable. An arbitration tribunal must decide if it was reasonable for an employer to gather the videotape evidence prior to allowing such videotapes to be admitted into evidence based on the following test:
- Was it reasonable in all the circumstances to initiate the surveillance?
- Was the surveillance conducted in a reasonable manner?
- Did the employer have other alternatives to obtain the evidence it sought?
- If the employer does not meet this test, the videotape evidence obtained will not be admissible.
In Teamsters T Local Union No. 419 v. Securicor Cash Services, the arbitrator noted that there is a common law right to privacy recognized by the courts, but there is also a statutory right to privacy by virtue of PIPEDA’s application to the workplace. Section 5(3) of PIPEDA provides that “an organization may collect, use or disclose personal information for only those purposes that a reasonable person would consider appropriate in the circumstances”. This provision, in combination with section 7(1)(b) of PIPEDA, meant that in workplaces covered by PIPEDA unreasonable employee surveillance is prohibited by statute.
Apart from PIPEDA and the common law, the arbitrator noted that for decades arbitrators have subjected intrusive employee inquiries, such as searches, medical examinations and drug testing, to a standard of reasonableness. There is no reason, the arbitrator held, to adopt a different approach to video surveillance subsequent to the enactment of PIPEDA.
Note that the principle whereby an arbitration tribunal will not admit videotape surveillance that was unreasonably obtained, is contrary to the approach of judicial courts. Courts will admit video surveillance evidence in wrongful dismissal cases if the videotape evidence is relevant and if the probative value of the videotape evidence outweighs its prejudicial effect. A court will not consider if the collection of videotape evidence was reasonable in its determination of whether such evidence is admissible.
While the admission of videotape evidence collected in contravention of PIPEDA has not been judicially considered in an employment context, it has been considered in a personal injury case. In Ferenczy v. MCI Medical Clinics, the Ontario Supreme Court was asked to consider if evidence collected in contravention of PIPEDA is admissible at a civil trial. Mr. Justice Dawson held that if the collection of video surveillance evidence was in violation of PIPEDA, a complaint could be filed pursuant to PIPEDA to commence the appropriate review process, however, such a violation will not directly impact the admissibility of such evidence at trial. Accordingly, video surveillance will be admissible at trial if it is relevant and its probative value exceeds its prejudicial effect, notwithstanding the fact that it was obtained in contravention of the privacy obligations set forth in PIPEDA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.