More hidden video cameras - this time in a correctional facility

Privacy battles in the workplace are increasingly being fought over the newswires. Below is the latest, based on an allegedly hidden video camera at a Canadian prison:

Hidden video surveillance of correctional officers at Leclerc Institution; Correctional Service Canada wrongly blames union for its own illegal acts:

"MONTREAL, Dec. 23 /CNW Telbec/ - Following several media reports
December 23, the Union of Canadian Correctional Officers (UCCO-SACC-CSN) is
compelled to comment on the discovery of a hidden surveillance camera at
Leclerc Institution, a medium-security penitentiary in Laval.

A correctional officer at Leclerc Institution discovered a video camera
hidden in a defective emergency light during the evening of September 21,
2004. As soon as the officer moved the light, the preventive security officers
and the assistant warden at Leclerc quickly intercepted him. They then lied to
him about the purpose of the camera and threatened him with reprisals if he
did not keep this discovery secret. He refused and was suspended without pay
for seven days for having "damaged government material". The suspension has
been grieved.

Following a meeting with the Acting Commissioner of Correctional Service
Canada, Mr. Don Head, UCCO-SACC-CSN was satisfied that this was an isolated
incident and would not be repeated. Mr. Head stated to the union that only he
can authorize the installation of hidden electronic surveillance, and that he
did not do so in this case, or at any other penal institution in Canada.

However, UCCO-SACC-CSN is now compelled to publicly comment following
defamatory statements by Leclerc Assistant Warden Pierre Gauthier in the
Dec. 23 edition of the Journal de Montréal. Mr. Gauthier stated the camera was
installed to catch correctional officers in the act of vandalism and
intimidating management staff. He also stated the camera respected the Privacy
Act and CSC policies.

"Both statements are untrue," said Mr. Pierre Dumont, Quebec Region
President of UCCO-SACC-CSN. "This camera was installed illegally, and
UCCO-SACC-CSN has filed a complaint over the incident with the federal Privacy
Commissioner, Ms. Jennifer Stoddart."

This case is all the more disturbing because it was followed by an
incident at William Head Institution, a minimum-security penitentiary near
Victoria, BC. Two CSC managers from this institution will face criminal
charges in a trial beginning next month in Vancouver over a case of illegal
electronic surveillance.

Both the BC and Quebec incidents are illegal attempts to harass the union
representing correctional officers in Canada, notes UCCO-SACC-CSN National
President Sylvain Martel. He said it is typical behaviour in a situation in
which the federal government is refusing to negotiate a renewal to their
labour agreement that has been expired since June 2002.

"Certain CSC managers believe themselves to be above the law," said
Mr. Martel. "But this union will ensure that even CSC managers cannot break
Canadian laws."

The Union of Canadian Correctional Officers (UCCO-SACC-CSN) is the
official bargaining agent for 5,700 correctional officers in 54 federal
institutions across Canada.

For further information: Lyle Stewart, CSN communications advisor,
(514) 796-2066"

In light of the inflamatory language in the release, I'd just like to mention that I am simply quoting verbatim from the union's press release and I will happy publish a rebuttal from Corrections Canada.

Interesting stuff ...

More coverage: CBC Montreal - Guards want warden charged over spy camera

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. ....

Canadian Occupational Safety magazine on Eastmond v. CPR

Canadian Occupational Health and Safety Magazine has an interesting analysis of the recent Federal Court Decision in Eastmond v. Canadian Pacific Railway, where the issue was the reasonablness of video surveillance cameras at a railyard. The author discusses the implications of the decision from the labour-side point of view and makes some recommendations:

Across the table - Camera surveillance and the privacy rights of employees:

"What lessons can be gleaned from the decision of Justice Lemieux to better equip workplaces that have electronic surveillance? Employees and employers should be aware that this decision has established jurisdictional parameters for hearing recommendations from the Privacy Commissioner. Paragraph 13 of PIPEDA provides the Commissioner with the discretion to 'investigate a complaint or defer it if he considered it appropriate a complainant should exhaust a grievance [procedure].' This means that in the absence of collective agreement language that does not refer to the privacy rights of employees, employees may refer the recommendation of the Privacy Commissioner to the Courts.

However, in the case where a collective agreement does include privacy right language, PIPEDA has greater legislative authority and may still be referred to the Courts at the discretion of the Commissioner. Therefore, labour relations jurisprudence is still in need of a decision by the Commissioner or the Courts speaking to the issue of whether a labour arbitrator will have precedence to hear a privacy right complaint where such language is in the collective agreement.

The Court has directed respondents to PIPEDA applications to raise at the earliest opportunity the existence of an alternative dispute resolution mechanism available to the parties, such as a grievance procedure. The Court did not go so far as to say the Commissioner would be bound to defer to this other mechanism, but the inference is that alternatives should be contemplated before proceeding to the courts.

One lesson to be learned in the era of privacy rights legislation is that parties, union and non-union, should be negotiating local-level conciliation procedures. This should result in win-win resolutions instead of litigious and adversarial confrontations in the courts. "

Article: CN's hidden camera sparks workers' ire (Winnipeg Sun)

Canadian railways have had problems with video surveillance upsetting employees, leading to complaints to the Privacy Commissioner (see: Eastmond v. Canadian Pacific Railway, 2004 FC 852). Canadian National Railway is now in the news after workers discovered cameras hidden in the ductwork:

Winnipeg Sun: NEWS - CN's hidden camera sparks workers' ire:

"Vandalism concerns, company explains

The discovery of a hidden camera at CN Rail's Transcona Wheel Yard shook employees and poisoned the workplace, the union says. But the railway says putting two cameras in the ceiling was a way to get to the bottom of unexplained equipment breakdowns. ..."

Leading privacy groups release annual global report

Privacy International and the Electronic Privacy Information Center have recently released their seventh annual Privacy and Human Rights Survey, which details global threats to privacy and related civil rights. It particularly highlights the increasing surveillance of citizens and intrusive uses of technology in the battle against terrorism.

From the joint EPIC/PI press release:

Privacy International & EPIC Release Annual Global Privacy Study

17/11/2004

GLOBAL HUMAN RIGHTS STUDY WARNS OF ENDEMIC PRIVACY THREATS

Major report sets out government surveillance strategies

17th November 2004

A major international privacy report published today has concluded that governments across the world have substantially increased surveillance in the past year. The report warns that threats to personal privacy have reached a level that is dangerous to fundamental human rights.

The 7th annual Privacy and Human Rights survey, published by Privacy International & the US based Electronic Privacy Information Center (EPIC) reviews the state of privacy in sixty countries and warns that invasions of privacy across the world has increased significantly in the past twelve months. The 800 page report is available free of charge at http://www.privacyinternational.org/survey/phr2004

The report paints a bleak picture of the erosion of the right to privacy, particularly since the September 11th attacks in the United States. It observed: that crime and public order laws passed in recent years have placed substantial limitations on numerous rights, including freedom of assembly, privacy, freedom of movement, the right of silence, and freedom of speech. Governments have continued to use terrorism as the pretext for an increase of surveillance, even when surveillance is unwarranted.

The report identifies a trend across the world toward mass surveillance of the general population, and cited a catalogue of illegal spying and surveillance activities by government agencies.

In response to calls for increased security many countries have pursued policy and legislative efforts that aim at implementing identification schemes, expanding the surveillance of communications for law enforcement and national security agencies, weakening data protection regimes, and intensifying data sharing and collection practices - all made possible by a growing cooperation between government entities and the private sector.

The report singles out a number of trends:

• New identification measures and new traveller pre-screening and profiling systems
  
• New anti-terrorism laws and governmental measures provide for increased search capabilities and sharing of information among law enforcement authorities
  
• Increased video surveillance
  
• DNA and health information databases
  
• Censorship measures
  
• Radio frequency identification technologies
  
• New electronic voting technologies
  
• Mismanagement of personal data and major data leaks

Privacy International's Director, Simon Davies, said the report highlighted a 'disturbing' trend toward greater state power. 'Governments are systematically removing the right to privacy. Surveillance of every type is being instituted throughout society without any thought about the need for safeguards.'

'The spectre of terrorism has at last become the device that any government can deploy to entrench the powers they always sought. The situation has become a dangerous farce,' he added.

'Governments are joining together their data systems. They are sharing information to a greater extent each year with the private sector. And they are cooperating unquestioningly with other governments to exchange vast reserves of personal information. This situation cannot continue without imperilling the right to privacy', said Mr Davies.

On a more upbeat note, the report did identify positive counter-trends:

'Invasions of privacy were met in various countries with forceful reactions from human rights groups. In Germany, outcry against a retail chain's use of RFID tags unbeknownst to its customers led to the halt to the company's projects. In Greece, the data protection authority struck down the use of biometric identity verification in airports because the collection of personal information through RFID tags exceeded its purpose. In Malaysia, the Bar Council criticized the security and privacy risks of Mykad, the multi-purpose smart card, which forced the government to work on a legislation to answer such concerns. In Poland, the Constitutional Tribunal held unconstitutional a law that allowed police officers to observe and record events in public places. Public interest groups had opposed the law alleging that it violated the right to privacy enshrined in the Polish Constitution. In Sweden, the privacy commissioner forbade a school's fingerprint recognition program. In Ukraine, a new law that restricts access to information was strongly opposed by several NGOs and international organizations because of its violation of the Constitution and global freedom of information standards. In reaction, amendments were introduced that improve the final version of the law.'

Surveillance cameras coming to Halifax's public places

In the wake of a number of "swarmings" on Spring Garden Road, Halifax's main shopping street, the local merchants' association is proposing to subsidise video surveillance of the entire area:

The Daily News

Crime watch

By Richard Dooley

EYES ON THE ROAD: Spring Garden Road Area Business Association manager Bernard Smith says the group has offered to subsidize outdoor night-vision surveillance cameras for merchants, to scan the streets for trouble, after a series of downtown swarmings. (Photo: DARRELL OAKE)

A series of swarming-style robberies in downtown Halifax over the last two weeks — the latest early yesterday — has convinced businesses in the area to ask for more police feet in the street and eyes in the sky.
The Spring Garden Road Area Business Association is quietly telling downtown businesses it will subsidize exterior night vision surveillance cameras set up to scan the street for potential trouble.

The association is also asking for the return of beat cops to Spring Garden Road...."

So far, I haven't heard of a privacy backlash, but I expect there may be one forthcoming.

Admissibility of video surveillance evidence

The use of video surveillance has come under increased scrutiny in recent years, prompted mostly by new privacy laws such as PIPEDA and the western provinces' PIPAs. To insurance lawyers, the most important question is what impact do these laws have on the admissibility of video surveillance evidence.

The only published court decision on this point, Ferenczy v. MCI Medical Clinics, 2004 CanLII 12555 (ON S.C.), may be interpreted to hold that a violation of PIPEDA does not render video evidence inadmissible (but it could be much more clear):

"[35] For all of the foregoing reasons I conclude the evidence here in question was not collected, recorded, used or disclosed in contravention of the Act. However, as I indicated earlier in these reasons, the evidence is in any event relevant and its probative value exceeds its prejudicial effect. Its admission into evidence would not render the trial unfair and it is, in my view, admissible at trial in any event at trial."

Johannes Schenk recently wrote about a BC arbitration decision in which the arbitrator decided that a violation of that province's Personal Information Protection Act would render the resultant evidence inadmissible. From paragraph 58 of IN THE MATTER OF an Expedited Arbitration Between EBCO Metal Finishing Ltd. and International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Shopmens' Local 712, [2004] B.C.C.A.A.A. No. 260:

... The PIPA is clearly intended to apply to the employment relationship. The authority of the legislation would not be given effect were an employer to breach its provisions and be permitted to rely on the unlawfully obtained evidence anyway. For an arbitrator in British Columbia to admit the evidence in such a case would amount to error of law and abdication of jurisdiction.

Aribral decisions have little precedential value, particularly outside the particular province, but this highlights that this issue has not entirely been put to rest.

Privacy and Insurance Claims

I was recently invited by the Canadian Bar Association - Nova Scotia's Insurance Law subsection to give a presentation on privacy laws and insurance claims, focusing on where we are now that PIPEDA has been in force for almost two years. The two principal themes were video surveillance and access to the claims file. You can download a pdf of the presentation here if you are interested: Privacy and Insurance Claims.

PIPEDA doesn't pip PI's video in court, Privacy Commissioner finds

Canada.com has written a little article about the recent finding from the Assistant Privacy Commissioner related to video surveillance. I advised the insurer in this case and wrote about it earlier (The Canadian Privacy Law Blog: Assistant Privacy Commissioner concludes that initiating a lawsuit is implied consent to video surveillance). See the Canada.com article here: PIPEDA doesn't pip PI's video in court, Privacy Commissioner finds.

Warning: These premises are under video surveillance

This one is pretty amusing ...

In the PIPEDA age, store owners and others who use CCTV on their premises for security and other purposes are required to post notices that the area is under video surveillance. This is because you have to make a reasonable effort to bring this form of collection of personal information to the person's attention so they can decide whether to enter the premises. How much is "reasonable" and does anyone pay attention to the signs?

You can likely assume that a company specialising in video surveillance would have the place covered by CCTV. But just for good measure, the owner of a Manchester CCTV supplier put up signs. You would think that was enough, but some dolt actually went onto the property and stole a laptop worth £700. Reports say he was picked up by eight separate cameras and was also seen casing the place half an hour before. See the story on Sky News : CCTV Shop Raid: Britain's Thickest Thief?.

What are the lessons to be learned?

1. People don't read signs?
2. CCTV signs don't deter theft?
3. Surveillance doesn't deter theft?
4. Some people are too thick to read signs that might actually affect them?
5. All of the above?

Assistant Privacy Commissioner concludes that initiating a lawsuit is implied consent to video surveillance

McInnes Cooper recently acted for one of Canada’s largest automobile insurers in achieving a favourable result in two related complaints to the Office of the Privacy Commissioner, both stemming from a decision by the insurer to use video surveillance to verify the claimed injuries.

Following a motor vehicle accident, the plaintiff advanced a claim against the driver of the vehicle, whose insurer responded to defend the claim. During the examinations for discovery, the insurer concluded that there were inconsistencies in the reported injuries and hired a private investigator to conduct video surveillance of the plaintiff. Surveillance captured the plaintiff, sometimes with her husband, carrying out daily activities. The tape was used at trail to impeach the witness.¹

The plaintiff and her husband each brought separate complaints to the Privacy Commissioner, both alleging that the use of video surveillance was a collection of personal information without consent, contrary to the Personal Information Protection and Electronic Documents Act (PIPEDA). The Assistant Commissioner concluded that both complaints were not well-founded. For the plaintiff’s husband, the Assistant Commissioner reviewed the tapes and saw that he was not recognizable in the images. Thus, she concluded, the information was not “identifiable” and there was no collection of “personal information”, as that term is defined in PIPEDA.

With respect to the plaintiff, the Commissioner agreed with the insurer’s argument that, by initiating a lawsuit in which injuries are at issue, the plaintiff has impliedly consented to the insurer collecting personal information that is necessary to defend its insured. This implied consent only extends to information that is relevant to the merits of the case and the conduct of the defence. The Assistant Commissioner concluded that "the collection of her personal information was limited to what was necessary for [the insurer] to defend itself against … Court action."

The insurer argued, following the Ontario decision of Ferenczy v. MCI Medical Clinics, 2004 CanLII 12555 (ON S.C.) (see The Canadian Privacy Law Blog: PIPEDA and Video Surveillance: Guidance from the Ontario Courts), that PIPEDA does not apply to third-party personal injury claims as the insurer is an agent for the defendant and the relationship between the parties to litigation is not a commercial one. Unfortunately, the Assistant Commissioner did not refer to this line of argument in her finding.

As of yet, the Assistant Commissioner’s finding is not reported on the Commissioner’s website.

---

¹  Counsel for the plaintiff argued that the video was made in violation of PIPEDA and should be inadmissible. The court decided, from the bench on voire dire, that PIPEDA did not apply and, if it did, any violation of PIPEDA would not render the evidence inadmissible.

Assistant Commissioner concludes that workplace video surveillance is not acceptable, even if less intrusive measures are much more expensive

In a finding released by the Office of the Privacy Commissioner, the Assistant Commissioner concluded that an ISP was not compliant with PIPEDA by installing video cameras in the workplace for the purposes of security and monitoring productivity of unsupervised employees:

Commissioner's Findings - PIPED Act Case Summary #279: Surveillance of employees at work - July 26, 2004:

"A former employee of an internet service provider believed that the company was acting contrary to the Personal Information Protection and Electronic Documents Act (the Act ) when it installed web cameras to monitor the performance of employees."

In short, the Assistant Commissioner concluded that the cameras were too intrusive and the issues could be addressed by other means, even if those means were substantially more expensive (hiring supervisory staff to be at the site in the evenings and on weekends):

The Assistant Commissioner commented that the underlying purpose for the cameras really appeared to be one of deterrence – deterrence of theft, harassment, malingering, criticism, or other behaviour an employer may not like. She noted that privacy-intrusive measures can always fulfil such objectives at minimal financial cost. The Act, however, demands that the cost to human dignity form part of the equation. Continuous, indiscriminate surveillance of employees, she noted, was based on a lack of trust and treats all individuals with suspicion when the underlying problems may rest with a few individuals or with a management plan that may not be entirely sound. The effect, she commented, of such omnipresent observation was stifling. While it may prevent undesirable behaviour, it also forces the employee to call into question every potential action, every potential comment no matter how benign. The goal of ensuring adherence to the company's vision comes at too high a price to our individual autonomy and freedom.

Privacy Site of the Day: Privacy.org

Today's "site of the day" is Privacy.org - The Source for News, Information, and Action, which is a joint venture of the Electronic Privacy Information Center (EPIC) and Privacy International. The Privacy.Org site brings together the latest news stories that touch on privacy issues and provides convenient links to resources related to both online and offline privacy.

From the "about us" page

Privacy.Org is the site for daily news, information, and initiatives on privacy. This web page is a joint project of the Electronic Privacy Information Center (EPIC) and Privacy International.

What is the Electronic Privacy Information Center (EPIC)?

EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values

What is Privacy International (PI)?

Privacy International is a human rights group formed in 1990 as a watchdog on surveillance by governments and corporations. PI is based in London, England, and has an office in Washington, D.C. PI has conducted campaigns throughout the world on issues ranging from wiretapping and national security activities, to ID cards, video surveillance, data matching, police information systems, and medical privacy.

Manitoba ombudsman chastises school for hidden cameras

Manitoba's ombudsman has concluded that a high-school administration violated the province's Freedom of Information and Protection of Privacy Act by installing covert video surveillance cameras, including one hidden as a smoke detector. Two of the cameras were hidden in teachers' offices. From The Brandon Sun: Online Edition via Privacy.org.

Voyeur CCTV attendants suspended for using awesome powers for evil

This sort of stuff is what makes many people nervous about widespread surveillance cameras in public places. The Register is reporting that two employees entrusted with keeping the streets safe though CCTV have been suspended for using the technology to peep into a woman's apartment:

Council suspends CCTV Peeping Toms | The Register:

"Police are investigating a a trio of municipal 'Peeping Toms' from Sefton, Merseyside who reportedly trained a street safety CCTV camera on a woman's flat in Liverpool's Bootle district, UK tabloid the Sun reports.

The three have been suspended 'pending a full internal investigation into alleged breaches of the council's policies and procedures,' as a Sefton council spokesman put it. Police confirmed that they are 'currently investigating allegations under the Sexual Offences Act 2003 and we are talking to a number of people', although no-one has been arrested.

The triumvirate of alleged snoops work in the Sefton council street safety camera centre, which controls 70 CCTV cameras across Merseyside."

Finding on implied consent to video surveillance in litigation

The Office of the Privacy Commissioner has published a summary on its website of the finding I referred to in my previous post about video surveillance and personal injury litigation (see The Canadian Privacy Law Blog: Assistant Privacy Commissioner concludes that initiating a lawsuit is implied consent to video surveillance). You can view the summary here: Commissioner's Findings - PIPEDA Case Summary #311: A woman's activities recorded and videotaped by a private investigator hired by an insurance company (August 9, 2005).

We advised the insurance company in this case.

The summary also addresses the complaint brought by the plaintiff against the private investigator, but the Assistant Commissioner unfortunately does not deal with the status of the insurer or the private investigator as an agent for the defendant in the underlying personal injury lawsuit. Though we raised the argument in the submissions to the Commissioner, we'll unfortunately have to wait until another case arises to have greater certainty on that issue.

As an aside, the insurance company in this case has decided not to seek judicial review of the decision of the Assistant Commissioner to assume jurisdiction. It was argued that PIPEDA did not apply in the circumstances because there is no commercial relationship between the plaintiff and the defendant in the personal injury lawsuit, and the insurer and PI were merely agents of the defendant.

From the published summary:

Commissioner's Findings - PIPEDA Case Summary #311: A woman's activities recorded and videotaped by a private investigator hired by an insurance company (August 9, 2005):

"Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use and disclosure of personal information, except where inappropriate.

The Assistant Privacy Commissioner reviewed the circumstances surrounding the insurance company's decision to conduct surveillance, including video surveillance on the woman. She agreed that when an individual initiates a lawsuit there is an implied consent that the other party to the suit may collect information required to defend itself against the damages being sought by the individual who filed the suit. When the woman initiated her lawsuit against the insurance company's client and when her testimony and medical reports revealed discrepancies and were inconsistent with the injuries claimed, the Assistant Privacy Commissioner concluded that she gave her implied consent to the collection of her personal information.

That being said, the Assistant Privacy Commissioner emphasized that implied consent is not without limitations. Implied consent does not authorize unlimited or uncontrolled access to an individual's personal information, but only to the extent it is relevant to the merits of the case and the conduct of the defense. In this case, the Assistant Privacy Commissioner noted that the collection of the woman's personal information was limited to what was necessary for the insurance company to defend itself against her Court action."