On April 17, Nova Scotia labour arbitrator Augustus Richardson admitted audio recording evidence that a union objected to even though the employer failed to give proper notice of recording.
The grievors were correctional officers discharged for behaving offensively and unprofessionally in transporting an inmate to a hospital. A hospital social worker complained of misconduct that occurred in the hospital. This led the employer to speak with the inmate, who did not provide a statement, but said something – it’s unclear what – that led the employer to download and review audio-visual recordings from the vehicle the grievors used to transport the inmate.
The vehicle had visible cameras that faced its two inmate compartments, but the union and the grievors claimed they were unaware the cameras recorded audio. The employer had issued a bulletin about the cameras that explained that they recoded audio, but didn’t have a policy or post signage. Arbitrator Richardson heard evidence, and accepted that the grievors and the union were unaware.
Arbitrator Richardson nonetheless admitted the evidence. Relying on the Supreme Court of Canada decision in Syndicat des employé professionnels de l’Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières and Alain Larocque 1993 CanLII 162 (SCC), [1993] 1 SCR 471, he held that declining to admit such central evidence would invite a breach of natural justice. Arbitrator Richardson also held that the employer’s access to and use of the evidence was not unreasonable, and was separate from the employer’s recording of the evidence (which the union had not grieved).
There are two points of significance in this case.
First, recording audio with video is risky because it captures private communications. Providing clear notice is important to protect against potential criminal liability (for breach of the Criminal Code wiretap prohibition), and also to avoid disputes like the one adjudicated by Arbitrator Richardson.
Second, Arbitrator Richardson’s approach to the union’s objection is to be preferred to any approach to the exclusion of evidence that does not consider and weigh the impact of exclusion on hearing fairness. He does not a say that a labour arbitrator has no jurisdiction to exclude evidence obtained in breach of privacy but, rather, says that such exclusion must be “appropriate” – i.e., not work an unfairness or bring the administration of (arbitral) justice into disrepute [my words].
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