Ontario Labour Arbitrator Brian Sheehan is the latest arbitrator to weigh in on whether it is proper for a labour arbitrator to exclude relevant surveillance evidence because the surveillance evidence does not pass an objective “reasonableness” test. In International Hotel v. United Food and Commercial Workers, Arbitrator Sheehan dealt strictly with the legal test. He held that arbitrators can and should exclude evidence obtained through covert off-duty surveillance if the surveillance effort is not reasonable in all the circumstances.
There is quite a split in opinion amongst arbitrators on this question. Here is my understanding of where Ontario arbitrators stand.
This list is based on Ontario because the debate seems most alive here. Also, as some have argued, there is a statutory underpinning for privacy rights in other provinces that makes Ontario unique.
I must make two qualifications given the above display’s simplicity. First, the list doesn’t indicate the strength with which arbitrators have endorsed the two positions or their bases for doing so (which vary). Second, it is also not to suggest that the all the “reasonableness arbitrators” have adopted the same standard. Some, for example, have suggested that reasonableness should be assessed with an understanding that excluding relevant evidence significantly affects an employer’s right to be heard and an arbitration board’s truth-seeking function.