GSB addresses use of surveillance footage

In a decision first released last September, the Grievance Settlement Board partly upheld a grievance that challenged the use of video surveillance footage in Ontario correctional facilities.

It has become standard to establish the purpose of workplace video surveillance as supportive of safety and security and to proscribe the use of surveillance technology as a replacement for supervision. In principle this distinction makes sense, though in practice it is unclear and has led to disputes.

In this case, the GSB affirmed the employer’s use of video footage to address misconduct discovered incidentally during a legitimate surveillance footage review that was occasioned by a security incident. Vice-Chair Anderson said:

The evidence as to why the surveillance camera was placed in the central control module was scant. The ISPPM indicates “audio and video technology are tools to enhance safety and security”. Sgt Essery’s evidence suggests that was the purpose for the camera in the central control module. It is clear the duties of the officers in the control module are reasonably necessary to the safety and security of inmates, staff and property in the building. I infer the ability, if necessary, to observe central control module officers in the performance of those duties has a safety and security function. The camera is also used to observe the hallway next to the central control module through which inmates pass, in particular when they are being escorted to or from the segregation units. There is no dispute that this has a safety and security function. There is no evidence that the camera was placed in the central control module for any other purposes. I conclude its placement was done in good faith for purposes permitted by Appendix COR10.

The GSB also recognized that the employer could justify the use surveillance video to spot check compliance with a procedure because the spot check and procedure were both to uphold safety and security – the primary purpose of video surveillance. In the circumstances, however, the GSB held that the employer had not proven a sufficient need for such spot checks.

The practical lesson for employers is to be wary of vague and unbounded promises to refrain from using video surveillance. The matter is one of nuance.

Ontario Public Service Employees Union (Union) v Ontario (Solicitor General), 2021 CanLII 95740 (ON GSB).

The union right of access to information

I’ve done a fair deal of enjoyable work on matters relating to a union’s right of access to information – be it under labour law, health and safety law (via union member participation in the health and safety internal responsibility system) or via freedom of information law. Today I had the pleasure of co-presenting to the International Municipal Lawyers Association on the labour law right of access with my colleague from the City of Vaughan, Meghan Ferguson.

Our presentation was about how the labour law right has fared against employee privacy claims. In short, it has fared very well, and arguably better in Ontario than in British Columbia.

I don’t believe the dialogue between labour and management is over yet, however, especially as unions push for greater access at the same time privacy sensitivities are on the rise. The advent of made-in-Ontario privacy legislation could be an impetus for a change, not because it is likely to provide employees with statutory privacy rights as much as because the new legislation could apply directly to unions. So stay tuned, and in the interim please enjoy the slides below.

Fed CA orders removal of witness names in administrative tribunal decision

On September 30th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board ought not to have referred to witnesses by name in a disciplinary decision about a suspension for “inappropriate acts involving a number of young female subordinate employees.”

This was a second time the matter of the witnesses’ anonymity came before the Court. In 2017, it had held that the Board’s decision to publish witness names was unreasonable and directed the Board to re-weigh the interests at stake.

The Board again declined to refer to witnesses by initials, seemingly put off by the employer’s pre-hearing “promise” to the witnesses that their identities would be protected from publication. What the employer said to the witnesses, the Court held, was not right inquiry. For that and other reasons, it quashed the Board’s second decision as unreasonable and (extraordinarily) substituted its own judgement.

Here are two points of significance:

the Court suggested that the (strict) Dagenais/Mentuck test applied by courts is the test to be applied by administrative tribunals like the Board; and
the Court recognized the public interest in encouraging the reporting of inappropriate sexual behavior by protecting the anonymity of witness, comparing the interest to the interest in encouraging the reporting of sexual assaults.

Canada (Attorney General) v. Philps, 2019 FCA 240 (CanLII).

Arbitrator orders $3,000 in privacy damages

On April 27th, Arbitrator Knopf ordered that $3,000 in damages be paid to a grievor for breach of privacy and harassment because:

the grievor’s personnel file contained an inexplicable notation that the grievor advised his supervisor that he injured his penis while cooking nude at home; and
the employer contacted the grievor’s doctor to confirm the doctor’s signature without justification and without consent.

Ms. Knopf said that these claims were “serious enough to warrant damages, buy they were not profoundly damaging to [the grievor’s] reputation or harmful to his privacy, nor did they have a negative impact on his benefit claims, status in the workplace or reputation in general.”

York (Regional Municipality) v Canadian Union of Public Employees, Local 905, 2017 CanLII 56454 (ON LA).

Arbitrator orders $25,000 in damages for privacy breach

Arbitrator Stout’s April 28th decision has received ample coverage, but I’d like this site to be a relatively complete repository of privacy damages awards. Mr. Stout ordered an employer to pay $25,000 in general damages after a supervisor disclosed an employee’s visual disability to three other employees after learning of the disability in a prior arbitration proceeding. The supervisor apologized orally and in writing, which presumably mitigated the breach. He did not testify, however, and Mr. Stout inferred that the disclosure was undertaken as retaliation for the outcome of the prior arbitration, a significant aggravating factor. The grievor also suffered distress that required him to undergo medical treatment and the employer “did very little” to remedy the breach in its response (e.g., discipline on the supervisor).

Canadian Pacific Railway Company v Teamsters Canada Rail Conference, 2016 CanLII 25247 (ON LA).

USB key treated as a private receptacle by labour tribunal – but why?

On March 29th the Grievance Settlement Board (Ontario) held that a government employer did not breach its collective agreement or the Charter by examining a USB key that it found in the workplace.

They key belonged to an employee who used it to store over 1000 files, some of which were work-related and allegedly confidential and sensitive. Remarkably, the employee also stored sensitive personal information on the key, including passport applications for his two children and a list of his login credentials and passwords. The key was not password protected and not marked in any way that would identify it as belonging to the employee.

The employee lost the key in the workplace. The employer found it. An HR employee inserted they key in her computer to read its contents. She identified the key as possibly belonging to the employee. She gave the key to the employee’s manager, who inserted it in his computer on several occasions. The manager identified that the key contained confidential and sensitive information belonging to the employer. The manager then ordered a forensic investigation. The investigation led to the discovery of a draft of an e-mail that disparaged the manager and had earlier been distributed from an anonymous e-mail account.

The GSB held that the employee had a reasonable expectation of privacy – one so limited as not to be as “pronounced” as the expectation recognized in R v Cole. The GSB also held, however, that the employer acted with lawful authority and reasonably. The reasonableness analysis contains some helpful statements for employers, most notably the following statement on the examination of “mixed-use receptacles” (my words):

The Association argues that the search conducted by Mr. Tee was “speculative” and constituted “rummaging around” on the USB key. It asserts that if Mr. Tee had been interested in finding files which might contain government data, he would have or should have searched directories which appeared to be work related, such as EPS, TPAS or CR. I do not find this a persuasive argument. As noted in R. v. Vu, in discussing whether search warrants issued in relation to computers should set out detailed conditions under which the search might be carried out, such an approach does not reflect the reality of computers: see paras. 57 and 58. Given the ease with which files can be misfiled or hidden on a computer, it is difficult to predict where a file relevant to an inquiry will be found. It may be filed within a directory bearing a related name, but if the intention is in fact to hide the file it is unlikely that it will be. Further, the type of file, as identified by the filename extension, is not a guarantee of contents. A photograph, for example can be embedded in a Word document. Provided that the Employer had reasonable cause to view the contents of the USB key in the first place (as I have found there was in this case), an employee who uses the same key for both personal and work related purposes creates and thereby assumes the risk that some of their personal documents may be viewed in the course of an otherwise legitimate search by the employer for work related files or documents.

I learned about this case shortly before it was decided and remarked that it was quite bizarre. I couldn’t fathom why anyone would be so utterly irresponsible to store such sensitive information on a USB key. This is one reason why I’m critical of this decision, which treats this employee’s careless information handling practice as something worthy of protection. The other reason I’m critical of this decision is that it suggests the expectation of privacy recognized in Cole is higher than contemplated by the Supreme Court of Canada – which remarked that Richard Cole’s expectation of privacy was not “entirely eliminated” by the operational realities of the workplace. Not all of our dealings with information demand privacy protection, and in my view we need to make the reasonable expectation of privacy threshold a real, meaningful threshold so management can exercise its rights without unwarranted scrutiny and litigation.

I also should say that it’s very bad to stick USB keys found lying around (even in the workplace) into work computers (or home computers), at least without being very careful about the malware risk. That’s another reason why USB keys are evil.

Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services), 2016 CanLII 17002 (ON GSB).

Criminal reference checks for current hospital employees ruled improper

In a decision from last May that just came to my attention, Arbitrator Stout ruled that a hospital’s policy that required all current employees to undertake vulnerable sector criminal record checks violated its nurses collective agreement.

Although British Columbia legislation supports periodic checks on vulnerable sector employees, the hospital’s policy was first of its kind in the Ontario hospital sector. Ontario employer’s have had difficulty justifying such checks. Arbitrator Picher’s comment about the distinction between pre-employment and in-employment checks in City of Ottawa is both authoritative and restrictive.

The person who presents himself or herself at the door of a business or other institution to be hired does so as a stranger. At that point the employer knows little or nothing about the person who is no more than a job applicant. In my view, the same cannot be said of an individual who has, for a significant period of time, been an employee under the supervision of management. The employment relationship presupposes a degree of ongoing, and arguably increasing, familiarity with the qualities and personality of the individual employee. The employer, through its managers and supervisors, is not without reasonable means to make an ongoing assessment of the fitness of the individual for continued employment, including such factors as his or her moral rectitude, to the extent that it can be determined from job performance, relationships with supervisors and other employees, and such other information as may incidentally come to the attention of the employer through the normal social exchanges that are common to most workplaces. On the whole, therefore, the extraordinary waiver of privacy which may be justified when a stranger is hired is substantially less compelling as applied to an employee with many months, or indeed many years, of service.

Mr. Picher did state that in-employment checks can be used for employees exercising “particularly sensitive functions.”

In this case, Arbitrator Stout held that the employer had not proven a “current problem” or “real risk.” Arbitrator Stout was also significantly influenced by the structural problem with vulnerable sector checks – i.e. they return sensitive “non-conviction information” for which employers generally have no need.

Rouge Valley Health System v Ontario Nurses’ Association, 2015 CanLII 24422 (ON LA).

Arbitrator dismisses video surveillance grievance, makes principled statements

On November 12th, British Columbia labour arbitrator Stan Lanyon dismissed a policy grievance that challenged the implementation of a video surveillance system in an equipment production and maintenance plant.

Surveillance cases are driven by their facts, but Arbitrator Lanyon did dismiss a union argument that overt and covert surveillance are equally invasive: “covert surveillance is more a more egregious violation of privacy because it is capable of causing more distress, anguish and embarrassment.”

As significantly, he held that surveillance systems can be justified without evidence of “a past history of serious breaches of safety, or security issues.”

Finally, Arbitrator Lanyon recognized a difference between using cameras for disciplinary (or supervisory) purposes and using video surveillance footage in the investigation of incidents. This distinction is not clearly drawn in some case law (and employer policies), but is important.

Kadant Carmanah Design v International Association of Machinists and Aerospace Workers, District 250, 2015 CanLII 79278 (BC LA).

Arbitrator issues helpful video surveillance award

Arbitrator Paula Knopf’s May 19th video surveillance decision is helpful to management on two points.

First, she validates the management need to investigate wrongdoing rather than immediately confront a suspected wrongdoer: “if the suspected employees had been confronted with the Employer’s suspicions in late April or May as the Union suggested, while that might have had an immediate, albeit temporary, deterrent effect, that would have prevented any real hope of discovering the true extent of the problem.”

Second, Arbitrator Knopf analyzed whether inadmissibility was an appropriate remedy for the employer’s breach (rather than ruling the evidence to be inadmissible as an automatic consequence of the breach).

Ottawa-Carleton District School Board v Ontario Secondary School Teachers’ Federation, District 25, 2015 CanLII 27389 (ON LA).

Ontario arbitration award addresses remedy for privacy violation

On February 24th the Grievance Settlement Board (Ontario) held that an employer should provide a grievor with three days’ paid vacation as a remedy for the consequences of an (admitted) security breach. The breach apparently allowed other employees to read incident reports involving the grievor, who alleged this caused him psychological distress. The GSB made its finding after conducting an informal med-arb process.

Ontario Public Service Employees Union (Grievor) v Ontario (Liquor Control Board of Ontario), 2015 CanLII 14198 (ON GSB).