On March 12th, Ontario arbitrator Joseph Carrier held that electronic records of an employee’s parking activity were admissible as meeting the “best evidence” requirements in the Ontario Evidence Act.
The employer relied on the records in asserting overtime fraud. Its system recorded data (presumably the time of “ins” and “outs”) on a server that it owned and that was overseen by a member of management named MacLeod. MacLeod testified and suggested that the system was functioning properly in the relevant time period, though she did not maintain the server herself and admitted that she was not technically inclined.
Arbitrator Carrier rejected the union’s assertion that expert technical evidence was required to satisfy integrity requirement that applies to evidence recorded by its proponent – i.e., proof “that at all material times the computer system or other similar device was operating properly.” He said:
I have considered those submissions and the provisions of section 34 and am of the view that the requirement respecting the integrity of the computer system need not require the evidence of a technical expert. Rather, the requirement is for evidence to support a finding that the computer system was operating properly at all material times or, if not, that any malfunction did not affect the integrity of the records. In this case, Ms. MacLeod, although she was not directly involved in overseeing the daily operation of the parking lot or the server, as manager of the operation for the hospital was informed of any functional problems both mechanical and electronic and consulted with respect to any proposed repairs or maintenance. As the Lakeridge Hospital Manager responsible for the overall operation of the parking lot, it is my view that her evidence was sufficient to satisfy the requirements of section 7(a) of the legislation. She did not testify, as one might otherwise have expected, that there were recording problems that were brought to her attention or discrepancies between the parking records and the revenues reported. Furthermore, in the words of section 7(a) there were “no other reasonable grounds to doubt the integrity of the electronic records system”. Indeed, Mr. del Junco did not assert, nor did Mr. Koscik, the Grievor, challenge that the records of his entrance and exit from the parking lot during any relevant period were inaccurate. Although one could not expect him to recall any specific day on which he might have entered or exited at times other than those recorded, in general, he did not challenge that the times recorded unfairly reflected his parking usage. In the circumstances, it is my view that the parking records could be properly admitted and relied upon pursuant to these provisions of the Evidence Act.
Arbitrator Carrier also rejected (without giving reasons) an argument that the records were inadmissible because the records were used in breach of the Personal Information Protection and Electronic Documents Act. It is questionable whether PIPEDA applies given the use of the records was in relation to employment in the province.