There is a division in Canadian arbitral jurisprudence on whether an arbitrator can (or should) refuse to admit surveillance evidence where the surveillance does not meet a standard of reasonableness. On June 15th, Ontario Arbitrator Stephen Raymond held that relevant surveillance evidence is admissible notwithstanding an alleged breach of privacy. He said:
I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager’s office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible.
I also note that many arbitrators who have excluded surreptitious videotape surveillance evidence seem to base their decision, in part, on the nature of the evidence. I do not see how the nature of the evidence impacts its relevance. No arbitral authority has been provided which supports the proposition that the observations of a private investigator hired to observe the actions of an employee is inadmissible or that there be an exclusion of that investigator’s notes of the observations made. Furthermore, if the investigator takes pictures of the employee, such evidence is admissible. It is only the videotape (moving pictures) that seems to be the type of evidence in which arbitrators say the employer has gone too far.
I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator.
The employer was represented by Mike Fitzgibbon of Thoughts from a Management Lawyer.
Re Ready Bake Foods Inc. and United Food and Commercial Workers International Union, Local 175, [2009] O.L.A.A. No. 308 (Raymond).
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