Vernon Professional Firefighters’ Association I.A.F.F. LOCAL 1517 v Corporation of the City of Vernon is a well argued video surveillance case in which Arbitrator Dorsey held that a fire service properly employed video surveillance in response to a suspicion that documents had been taken from a filing cabinet in the (interim) Chief’s office. The surveillance captured two employees having “sexual relations,” an act for which they were terminated.
The Association’s theory was the decision to employ surveillance was a product of “paranoia and distrust” arising out of bad labour relations. The Employer argued the bad labour relations in its favour, ultimately convincing Mr. Dorsey that protecting its information was one concern, but determining who it believed had accessed the information without authorization was an equally legitimate objective in the context. It’s a decision that turns on its facts, though there are some other notable findings. Namely, Mr. Dorsey found that:
- the installation of surveillance in this context was an “indirect collection” of personal information under British Columbia’s public sector privacy legislation (para 79);
- the standard for employing surveillance under public sector privacy legislation and a collective agreement ought to be the same (para 239);
- having a meeting with staff about the the terminations was a legitimate means of addressing rumors and speculation about the terminations and did not invite a further breach of privacy as alleged (para 93).
Arbitrator Dorsey does suggest, problematically in my view, that surveillance evidence ought to be excluded if collected via “an unjustified employer invasion of employees’ privacy rights.” Like many arbitrators, Arbitrator Dorsey frames the power to exclude evidence as discretionary but links the exclusion analysis to one factor above all others – justification. If the exclusion analysis is to be undertaken reasonably, it must encompass “all relevant factors,” including the impact of any exclusion decision on the administration of (administrative) justice and ongoing labour relations.
Vernon Professional Firefighters’ Association I.A.F.F. LOCAL 1517 v Corporation of the City of Vernon, 2018 CanLII 111669 (BC LA).