Case Report – Court finds constructive dismissal for engaging in workplace surveillance

On December 15th, the Ontario Superior Court of Justice held that an employee was constructively dismissed because her employer installed a video camera in her office on questionable grounds and recorded images surreptitiously for about nine months before she discovered the camera and abruptly quit.

Prudent employers and their counsel have long been cautious about the enforcement of employee privacy rights through constructive dismissal claims, claims in which an employee alleges a fundamental breach of an express or implied term of an employment contract based on a privacy violation. This case, however, is the first I’m aware of in which such a claim has been successfully made.

While significant in illustrating the risk to employers who take a casual approach to employee privacy, the outcome is not surprising given the facts. Most significantly, the employer installed the camera to address an undisputed theft problem, but did not suspect the plaintiff. The only reason it had for installing the camera in her office was that it thought the suspects would go to the plaintiff’s office to “review the loot,” a suggestion the Court said was “preposterous.” The plaintiff also appears to have discovered the camera when she visited a supervisor’s office and saw a live feed of her office, raising a serious question about use and security of the images.

The Court did not mention whether the employer had a policy incorporated into the employment contract that gave it license to conduct surreptitious monitoring of its workplace or anything about the plaintiff’s expectation of privacy, but even a well-drafted and properly incorporated policy might not have given rise to an effective defence on these facts.

Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (ON S.C.).