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).
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).
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 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).
I spoke today at a Lancaster House labour arbitration conference on a good panel with Arbitrator Paul Craven and union counsel Samantha Lamb, with Sean McGee of Nelligan O’Brien Payne as our chair.
I quite like this Cargill Foods case by Arbitrator Craven, in which he distinguishes between omnipresent surveillance (my words) and other continual collections of personal information that are more benign. His comments on Cargill today highlighted to me that there is no proscription against collecting personal information for the purpose of improving job performance (as is often suggested) but quite a real proscription against collecting personal information in a manner that is highly invasive and a substitute for in-person supervision.
I’ve put my speaking points below. They include some ideas about the BC OPIC’s recent Kone case, a case which further illustrates this point.
On January 26th, Saskatchewan Labour Arbitrator William Hood rejected a union argument to exclude surveillance evidence recorded by an in-plant video surveillance system. In doing so, he made the following broad statement on the admissibility of unlawfully obtained evidence at labour arbitration:
Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom [sic] apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray,  S.C.R. 272).
Not all Canadian labour arbitrators apply this traditional rule of evidence.
Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. McKesson Canada Corp. (Birch Grievance),  S.L.A.A. No. 1 (QL) (Hood).
There is a division in Canadian arbitral jurisprudence on whether an arbitrator can (or should) refuse to admit surveillance evidence where the surveillance does not meet a standard of reasonableness. On June 15th, Ontario Arbitrator Stephen Raymond held that relevant surveillance evidence is admissible notwithstanding an alleged breach of privacy. He said:
I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager’s office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible.
I also note that many arbitrators who have excluded surreptitious videotape surveillance evidence seem to base their decision, in part, on the nature of the evidence. I do not see how the nature of the evidence impacts its relevance. No arbitral authority has been provided which supports the proposition that the observations of a private investigator hired to observe the actions of an employee is inadmissible or that there be an exclusion of that investigator’s notes of the observations made. Furthermore, if the investigator takes pictures of the employee, such evidence is admissible. It is only the videotape (moving pictures) that seems to be the type of evidence in which arbitrators say the employer has gone too far.
I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator.
The employer was represented by Mike Fitzgibbon of Thoughts from a Management Lawyer.
Re Ready Bake Foods Inc. and United Food and Commercial Workers International Union, Local 175,  O.L.A.A. No. 308 (Raymond).