Employees in Ontario (and perhaps other Canadian provinces) have no right to privacy

This is hot off the presses. With no statutory right to privacy in Ontario (unlike Alberta and British Columbia), an arbitrator has decided that the "reasonableness" test that has ordinarily applied to determine the admissibility of video surveillance evidence may not be warranted. It is worth asking if the admission of video surveillance is really any different from admitting the testimony of the private investigator who took the video. Should the fact that it is more persuasive make it more difficult to admit?

2004 CarswellOnt 5241

Hotel-Dieu Grace Hospital v. CAW-Canada, Local 2458

Ontario Arbitration Board

Snow Member

Heard: July 15, 2004
Heard: October 14, 2004
Judgment: November 2, 2004
Docket: MPA/Y401670

Snow Member:

...

1 The grievor was discharged on the basis of video surveillance evidence. This is an interim award regarding the admissibility of that video evidence.

IV. Union Position

....

8 The Union submitted that the Employer could only use this video evidence if:

1. It was reasonable for the Employer to request surveillance;

2. The surveillance was conducted in a reasonable manner; and,

3. There were no other alternatives open to the Employer to obtain this evidence.

9 The Union submitted that the arbitration cases indicated that video of an employee was an intrusion that should not be taken lightly, that an Employer needed to have reasonable grounds to decide to engage in surveillance of an employee and, if the Employer did not have reasonable grounds, the video evidence should be rejected. The Union reviewed several awards and adopted the arguments contained in them.

10 As for reasonable grounds, the Union said the cases made clear that mere suspicion was inadequate. The Union said there were no reasonable grounds to use surveillance in this case. To allow the Employer to use video evidence without first subjecting that evidence to the above reasonableness test would shift the balance of power in favour of the Employer. In summary, the Union said it made sound labour relations sense to use the test of reasonableness in assessing video surveillance evidence.

....

V. Employer Position

12 The Employer said there was no legal reason to require the Employer to have reasonable grounds to engage in surveillance and there was no proper basis to refuse to admit the video evidence from that surveillance.

13 The Employer referred to Section 48 (12) (f) of the Labour Relations Act, 1995 dealing with admissibility of evidence and said that an examination of that provision indicated that the video was admissible. The Employer submitted that the arbitration cases upon which it relied indicated that the cases cited by the Union have not been followed in recent years. The Employer reviewed both the Union's and its own cases in detail and urged me to follow the approach found in its cases.

...

15 In summary, the Employer said that, absent a collective agreement or statutory provision, an Employer can engage in surveillance of an employee and use the video from that surveillance in arbitration. There was no basis for subjecting the issue of admissibility of this video evidence to a special test.

Should there be an additional reasonableness test for surveillance video?

32 Notwithstanding that this evidence is relevant to a material issue, and would be admissible applying the statute, the Union said that there was a line of arbitration cases which took a different approach. The Union submitted that those cases held that video evidence should only be admitted in an arbitration if that evidence also passed the reasonableness test. Although there are conflicting decisions of Ontario arbitrators on this point, the Union is correct that in the decisions upon which it relied the arbitrators subjected the introduction of video surveillance to the reasonableness test. There are minor differences in those tests but the key points are:

1. The employer had to have acted reasonably in deciding to place the employee under surveillance; and,

2. The Employer had to have conducted the actual surveillance in a reasonable manner.

33 I note that the reasonableness test appears to have been used in Ontario only for video evidence. Before the days of video, and currently as well, this Employer could have hired a detective to conduct similar surreptitious surveillance away from the work place, make notes on what was observed and take still photographs, and then testify in an arbitration from his or her memory aided by the notes and still photographs. I am aware of no suggestion that such evidence has been subjected to the reasonableness test in an arbitration under the Labour Relations Act.

34 From the awards before me it is clear that this reasonableness test for the admissibility of video evidence was first used in British Columbia in Re Doman Forest Products Ltd. and I.W.A., Loc. 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers), a case discussed in several of the awards relied upon by the parties. At that time British Columbia had a statute providing for a right of privacy and Arbitrator Vickers took the view that, among other things, surveillance conflicted with the employee's statutory right of privacy. In reconciling the employer's right to prove its case through relevant evidence with the employee's statutory privacy right to be free from surveillance, the arbitrator adopted the reasonableness test. If the surveillance was unreasonable under the privacy legislation, the resulting video evidence was not admitted.

35 A similar test was used in Manitoba, where there was also a statutory right to privacy, in Re New Flyer Industries Ltd. (supra). Arbitrator Chapman cited with approval an earlier decision of Arbitrator Peltz between the same parties (the Mogg case) and, at page 63 of his award, Arbitrator Chapman quoted from Arbitrator Peltz' earlier award where the existence of a statutory right to privacy is relied upon. Although Arbitrator Chapman does not specify the source of the statutory right, at page 146 of his award in Re Canadian Timken Ltd. (supra), Arbitrator Welling indicates that the right to privacy in Manitoba was found in the Privacy Act, R.S.M. 1987, c. P125.

36 A similar test was used in Ross v. Rosedale Transport Ltd. (supra), a dispute under federal jurisdiction, to balance an employee's privacy rights found in the federal Personal Information Protection and Electronic Documents Act with the employer's right to prove its case through relevant evidence.

37 In each of those jurisdictions there is a statutory right of privacy and I have no issue with the reasonableness test being applied to balance an employee's right of privacy with an employer's right to prove its case through relevant evidence.

38 But I do have difficulty with the use of a reasonableness test where there is no right of privacy. A reasonableness test has been used in Ontario - see, for example, two cases cited by the Union, Re Toronto Transit Commission (Saltman) (supra) and Re Labatt Ontario Breweries (supra) - where there is no statutory right to privacy. In subjecting videotape evidence to a reasonableness test Arbitrators Saltman and Brandt applied a different approach from that normally used in assessing the admissibility of evidence.

39 In examining the reasonableness test of Arbitrators Saltman and Brandt in the above cases, a test also applied by some other Ontario arbitrators, it is important to note that the use of the reasonableness test for the admission of videotape evidence has been criticized and firmly rejected in a number of later cases - see, for example, Re Kimberly-Clark Inc. (Bendel) (supra); Re Toronto Transit Commission (Solomatenko) (supra); and Re Canadian Timken Ltd. (Welling) (supra) cited by the Employer. (I note that while Arbitrator Bendel's award was released in 1996, prior to Arbitrator Saltman's 1997 award, it was not published in Labour Arbitration Cases until 1998 and was not mentioned in Arbitrator Saltman's award.)

40 The initial and primary basis for the use of the reasonableness test for the admissibility of video evidence has been a concern about privacy. The use of the reasonableness test as a means of balancing privacy expectations or concerns (there being no right to privacy) with the right to lead relevant evidence has been fully and ably reviewed in the three awards by Arbitrators Bendel, Solomatenko and Welling (supra) and I do not intend to repeat that analysis. Although the analysis in those three cases varies in some details, each rejects the reliance on privacy as a basis for using the reasonableness test for the admissibility of video evidence.

41 As there is no right of privacy in Ontario, this reasonableness test, originally designed to balance rights, has to be carefully examined. Since it is not needed to balance competing rights, and has been persuasively rejected by other arbitrators, why might I adopt it?

42 Some of the cases (including cases not relied upon by the Union but referred to in the various awards) suggest alternative rationales for using the reasonableness test and subjecting video evidence, particularly video evidence resulting from surveillance, to heightened scrutiny. But those alternative bases (reliance on values in the Canadian Charter of Rights and Freedoms, analogy with cases on searching employees, and safeguarding the integrity and credibility of the arbitration process) are also examined by Arbitrators Bendel, Solomatenko and Welling in Re Kimberly-Clark Inc. (supra); Re Toronto Transit Commission (supra); and Re Canadian Timken Ltd. (supra), respectively, and persuasively rejected.

43 I can find no basis in the arbitration awards relied upon by the parties to persuade me to adopt a reasonableness test for the admissibility of this video evidence. In particular, I reject the primary ground advanced for this test - privacy - as a basis for using the reasonableness test. I also reject the other reasons which have been advanced - reliance on values in the Canadian Charter of Rights and Freedoms, analogy with cases on searching employees, and safeguarding the integrity and credibility of the arbitration process. Nothing in those awards persuades me that a special test is needed to determine the admissibility of video evidence.

44 The Union offered further policy reasons for adopting the reasonableness test. The Union submitted that to allow the Employer to use video evidence without subjecting that evidence to the reasonableness test would shift the balance in favour of the Employer. The Union also submitted that it made sound labour relations sense to use the test of reasonableness in assessing surveillance evidence. The Union did not provide specifics, but I understood that the submissions flowed from:

1. The idea that employees have an expectation of privacy, even if not a right; and,

2. The distaste which some people have regarding an employer conducting surreptitious surveillance.

45 The Union urged me to shift the balance, and to uphold sound labour relations values, by subjecting the video evidence to the reasonableness test.

46 I do not think that my subjective perception about a need to shift the balance of power between the parties, or the balance between the Employer and the grievor, is a sound basis for a decision to reject relevant evidence, or to subject this evidence to the additional reasonableness test.

47 Moreover, the fact that some people find this practice of surreptitious video surveillance offensive does not, in my view, carry any weight in determining the admissibility of the video evidence. Improvements in technology have enhanced the ability of a "sleuth" to record what an employee has done away from the work place but, as I noted earlier, it has long been possible to engage in surveillance and testify about what was observed. I do not see that the recent use of video has created a shift in the balance of power which should be corrected, even assuming that correcting a shift in the balance of power was a sound basis for determining admissibility. In my view, because the evidence is clearer, more detailed, and thus perhaps more persuasive, the possibility of video evidence has, at most, simply prompted employers to more frequently exercise a power which employers have long possessed.

48 While I have concluded that shifting the balance of power is not a proper basis for determining the admissibility of this video evidence, I would note that if the Union wishes to shift the balance of power it is able to do so in the bargaining process. The parties' collective agreement is their current agreement in terms of the allocation of power between the two of them. It is clearly possible for a collective agreement to address this issue and to indicate an approach to the admissibility of video evidence which an arbitrator would be required to apply. But there was no suggestion of anything in the parties' existing collective agreement which would assist in resolving the issue before me on the admissibility of this video evidence. ....