Canada: Covert Surveillance Admissible Despite Procedural Errors Following Policy

In a recent grievance arbitration decision between the Ottawa-Carlton District School Board (the "Board") and the Ontario Secondary School Teachers' Federation District 25 Plant Support Staff ("OSSTF"), a preliminary issue regarding the admissibility of covert surveillance records was adjudicated by arbitrator Knopf.  The circumstances of the issue were somewhat unique because the parties had incorporated compliance with the Board's Video Surveillance procedure into the collective agreement.

The Board terminated the employment of a custodian assigned to an evening shift at one of the Board's elementary schools after evidence was collected showing the custodian smoking with other custodians during their break in uniform adjacent to the school building and visible to the public, what was alleged to be marijuana.

The Board has a video surveillance policy and procedure in accordance with the Information and Privacy Commissioner of Ontario's guideline for school boards.  In addition to the policy and procedure, however, the Board and OSSTF incorporated at article 38.05 of the collective agreement a requirement for compliance with the procedure.  The article stated: "Procedure P. . .(Video Surveillance) as established by the Employer and as amended from time to time, shall apply to all employees covered by this Collective Agreement."  The Board's policy and procedure did permit covert surveillance, but only in specific circumstances, which OSSTF argued the Board did not follow in the present case.  The relevant sections of the policy and procedure follow:

3.7 Information obtained from video surveillance equipment shall only be used for the protection of students, staff, and the public or in assisting in the detection and deterrence of criminal activity and vandalism.

3.8 Video surveillance shall not be used for the purpose of monitoring staff performing their assigned duties.

3.16 Covert surveillance has the potential of being highly privacy invasive and must only be used as a last resort in a time limited, case specific circumstance.

4.7 (a) Prior to the use of covert surveillance a case must be presented by the Security Coordinator and the responsible principal/manager to the Superintendent of Human Resources or Executive Superintendent, for approval on the grounds covert surveillance is essential to the success of a possible criminal investigation and the need outweighs the privacy of the persons likely to be observed.
(b) The case and supporting documentation must identify the benefits which will be derived from the investigation.
(c) The covert surveillance must be time limited and case specific.

Information about the alleged smoking of marijuana first came to the Board's attention when a custodian at the grievor's school accidentally made a pocket cell phone call to a supervisor, and the supervisor overheard the custodian say that there were insufficient drugs for them to share that evening.  The Board tried to investigate the issue from another school property to remain unnoticed, but were unable to sufficiently see any activity. 

Approximately one month later a custodian assigned occasionally to the school requested that he be reassigned because the custodians at the school working the evening shift asked him to use marijuana, which he reported was being used regularly during the shifts on and adjacent to the school property.  He also alleged that there was trafficking of drugs on Fridays.  The Board's Director of Human Resources agreed that the Board should gather more evidence through covert video surveillance.

The Board's senior staff involved in the decision to employ covert surveillance argued that, while they followed the policy and procedures regarding video surveillance, they did not believe that the policy applied in the circumstances, because they were not installing surveillance cameras.  The Board hired a third party to conduct the surveillance and argued that it was undertaken for safety reasons.

The first evening, which was a Wednesday, from a van in an adjacent parking lot, the grievor and other custodians were reported by the third party to have been smoking drugs during their shift while in their uniforms outside the school building on the adjacent property.  The surveillance was conducted for two more days, in part to determine whether or not there was evidence of drug trafficking on Friday.  The Board did not collect any evidence to support the allegation that there was trafficking of drugs.  But, the Board did terminate the grievor as a result of the evidence collected of him smoking marijuana during his shift, in his uniform just off school property.

OSSTF's position was that the Board's intention was not to ensure safety, otherwise the Board would have taken immediate steps when the allegation was made to stop the use of drugs.  The true intent of the Board, OSSTF argued, was to "catch" the custodians while committing an infraction; thus, the Board's reasons for the covert surveillance were inconsistent with its policy and procedures.  OSSTF argued that the grievor's termination should be rescinded, because the evidence collected by the Board was in violation of the grievor's substantive contractual right to privacy.  In the alternative, OSSTF argued that the surveillance and any derivative evidence should not be admissible as evidence given the Board's breach of the grievor's privacy rights and the Board's policy and procedure.

The Board argued that the evidence was admissible because the Board had complied with the policy and procedure, despite their position that it was only applicable to the installation of video surveillance, and not third party surveillance conducted off of Board property. 

The arbitrator stated that the case law regarding when or if video surveillance can be taken and used as evidence requires a balancing between the employee's right to privacy and the employer's interests.  This balance of interests was held to have been incorporated into the Board's policy and procedure.  The policy and procedure confirmed that the parties had accepted that covert surveillance might be used in some restricted circumstances, hence the limitations set out in the collective agreement through its incorporation of the Board's policy and procedure.  The policy and procedure required the Board to ask "Was it reasonable, in all the circumstances, to request surveillance?  Was the surveillance conducted in a reasonable manner?  Were other, less intrusive, alternatives open to the Employer to obtain the evidence it sought?" 

It was found that the surveillance was conducted while the grievor was at work, during his break and while he was in uniform standing adjacent to the school building where any person passing by might have observed him.  Given that the grievor was on his break and where he was standing the arbitrator held that he had no expectation of privacy.  Moreover, the arbitrator found that the Board's interests outweighed the grievor's privacy interests.  Further, the surveillance was limited to three days, only taking place during the grievor's breaks and not while he was working in the school building, which the arbitrator found to be reasonable.

The policy and procedure required that covert surveillance only be used for a limited time, in the present case three days, for specific circumstances, in the present case only when the grievor was on his break from his duties and outside the building, and as a last resort.  OSSTF argued that there were many other options open to the Board.  However, the arbitrator agreed that the surveillance was the only practical last resort if the Board hoped to collect sufficient evidence to determine the significance of the drug use as well as whether or not the employees were trafficking in drugs.  The police had refused to investigate until the Board had more information, and any overt measures to supervise would have likely put a temporary halt to the drug use, but would not have aided in a long term solution for the school board.  The arbitrator held that "the gathering of the evidence is simply the logical consequence of the exercise of the management function of ensuring a safe workplace."

The surveillance was deemed admissible.

Workplace privacy policies are becoming more common, as a result of the significant surveillance and tracking that occurs of everyone on a daily basis in public, on-line and in the workplace.  When developing policies and procedures regarding privacy in the workplace, employers should ensure that they have sufficient flexibility in their policies and procedures to conduct covert surveillance in a reasonable manner in appropriate circumstances.  The surveillance of employees requires employers to balance their interests in a safe and productive workplace with the employee's privacy interest.  Therefore, surveillance should be conducted when other methods of investigation are not possible or are not likely to be successful.  In addition, the surveillance should be conducted for a limited period of time, in specified circumstances, for a specific purpose and in a manner that respects the employee's privacy to the greatest degree possible.  If an employer can demonstrate that the policy and procedures were reasonable and substantially followed, the surveillance recorded should be admissible as evidence.

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.

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