Case Report – Bendel says no power to exclude surveillance evidence

14 Aug

Arbitrator Michael Bendel has recently taken a very strong stance favouring the admission of evidence collected by way of surrepetitious video surveillance.  His position is encapsulated in the following statement, made in  Re Greater Toronto Airports Authority and P.S.A.C, 2007 CanLII 21:

It follows that the discussions in many of the arbitral awards, on the existence of a right to privacy (or an expectation of privacy) in various jurisdictions, on the parametrs of such an interest, on the actionability of invasions of privacy, and on the reasonableness of resorting to videotape surveillance of an employee suspected of sick leave abuse, are quite beside the point. Interesting though these debates may be, I express no views on them. They proceed on the wholly mistaken assumption that there exists a discretion to exclude evidence that is tainted by an invasion of privacy. In the absence of any such discretion, either at common law or by virtue of provisions such as section 16(c), I an unable to detect any point in these discussions about the existence of a right to privacy.

Mr. Bendel endorsed these comments again in Re General Electric Canada and C.E.P., Local 544, 2007 CanLII 408.

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