Work and privacy : an impossible marriage? an overview of the Canadian experience
August 2, 2010

Types of monitoring

It is clear that an employee does not totally forgo his/her privacy while at work. Similarly, an employer does not have a legitimate interest of monitoring an employee outside of the strict scope of the workplace. It seems that privacy is a dynamic concept that varies in time and place. The employment relationship implicitly includes a “trade-off” that by accepting to be an employee, an individual allows some type of monitoring. For instance, it seems to be quite reasonable to assume that an employer can monitor and evaluate the job performance of its employees, gather statistics about the work and use it for reasonable purposes. The reasonable expectation of privacy of an employee may differ and has an impact on the employer’s right and means to monitor.

The most common forms of monitoring are:

• Video surveillance in the workplace;
• Internet and email surveillance in the workplace;
• Monitoring and/or video surveillance of an employee outside the workplace.

Finally, one must draw a distinction between a covert or surreptitious surveillance and the known and open video surveillance, such as a video monitoring system in the workplace. The authorities on employee surveillance in Canada, outside Québec, seem to have developed the 3 following approaches:

• The Reasonableness Approach;
• The Relevancy Approach;
• The Reasonable Expectation of Privacy Approach.

In Québec, the only approach since 1999 has been the “reasonable motives and necessary means”, established by the Court of Appeal, which seems similar to the Reasonableness approach.

The Reasonableness Approach

This approach is based on the “balancing of interests” between the employee’s right to privacy and the employer’s right to investigate an employee suspected of malingering. The following test was first formulated:

• Was it reasonable, in all of the circumstances, to request a surveillance?
• Was the surveillance conducted in reasonable manner?
• Were other alternatives open to the company to obtain the evidence it sought?

This test was later modified in 2 step approach as following:

• Was it reasonable, in all of the circumstances, to request a surveillance?
• Was the surveillance conducted in reasonable manner?

The Relevancy Approach

The second approach is diametrically opposed and its states that the video surveillance should be admitted into evidence if it is probative and relevant, no matter how it is obtained, as employees do not enjoy any privacy rights, unless expressly granted by law. This approach seems mostly followed in an non-unionized wrongful dismissal actions and workers’ compensation matters, where no clear privacy protections seem to be in place.

The Reasonable Expectation of Privacy Approach

This approach seems to be the middle ground between the 2 previous approaches but gives a greater weight to the interests of the employer. In fact, the employer does not need to demonstrate reasonableness of the surveillance in public places, must to have reasonable motives for the monitoring only if the employee can benefit from a reasonable expectation of privacy.  

Québec approach

In Québec, the leading cases have established the principle of allowing monitoring of an employee outside of the workplace when the employer has reasonable grounds to do so and they exist prior to the gathering of such evidence. The method of surveillance must be as unintrusive as possible and must be necessary to fulfill the legitimate objectives of the employer.

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Case law

Québec

• Syndicat des travailleuses et travailleurs de Bridgestone/Firestone de Joliette (C.S.N.) v. Trudeau, [1999] R.J.Q. 2229 (C.A.)

In this case, the employee sustained a workplace accident and claimed that he could not resume his functions, which was confirmed by his doctor. After conducting its own evaluation of the employee’s condition, the employer decided to launch a surveillance procedure. Based on the results, the employer decided to terminate the employee for having made a false claim. This decision was contested before an arbitrator, along with the videotape evidence of the employee’s activities during his leave of absence. Despite the union’s objection, the arbitrator allowed the evidence to be produced, stating that this was not against the employee’s right to privacy. The Superior Court and the Court of appeal have both confirmed this decision. The Court of appeal stated that the decision to monitor an employee had to be based on reasonable grounds existing prior to the gathering of such evidence and that the method of surveillance also has to be as unintrusive as possible, and has to be necessary to attain the legitimate objectives of the employer.

• Srivastava v. Hindu Mission of Canada (Quebec) Inc., [2001] R.J.Q. 1111 (C.A.)

The co-plaintiff was a priest hired to officiate in an Hindu temple. The temple’s executive committee decided to record the priest’s telephone conversations, after receiving reports of stolen items in the temple, unauthorized long-distance calls and the priest’s lack of availability for worshipers. The content of the recordings revealed what appeared to be an extra-conjugal relation between the priest and a volunteer worker of the temple, a married woman. After the committee disclosed the findings, the priest resigned its position, and then launched an action against the committee. While the Superior Court was of the opinion that the priest’s right to privacy had not been violated, the Court of appeal found otherwise. According to the Court, the conversations in question regarded private matters, and the fact that the telephone used was not owned by the priest did not matter. The focus had to be put on the subjective expectation of privacy of the parties to the conversation, and the Court concluded that the conversations were intended to be private.  Finally, the Court noted that the priest was required to spend extended periods of time at the temple each day, therefore allowing him to place exclusively private phone calls. The defendants were condemned to pay damages to the plaintiffs.

Amziane v. Bell Mobilité, J.E. 2004-1702 (C.S.)

The plaintiff was an employee of the defendant and was the subject of an investigation pertaining to the fraudulent use of corporate credit cards. During the investigation, the employer became aware that she was possibly living with her supervisor, contrary to an internal policy relating to conflicts of interest. The employer decided to send a private investigator in order to determine if the two employees were indeed sharing a dwelling. The employee sued the employer, alleging a breach of her right to privacy, along with a claim that she had been unjustly terminated. The Superior Court failed to see any reasonable grounds for the surveillance of the employee’s house, noting that a simple question would have clarified the matter, as a subsequent conversation with the two employees demonstrated. The surveillance was therefore illegal.

Canada, excluding Québec

• Eastmond c. Canadian Pacific Railway, [2004] F.C.J. No. 1043 (F.C.) (Reasonableness approach)

Canadian Pacific Railway (“CP”) installed six video surveillance cameras in the workplace. The Federal Court had to decide whether the reasons which prompted CP to install the cameras were reasonable and adopted the following test:

• Are camera surveillance and recording necessary to meet a specific CP need?;
• Are camera surveillance and recording likely to be effective in meeting that need?;
• Is the loss of privacy proportional to the benefit gained?;
• Is there a less privacy-invasive way of achieving the same end?

The Federal Court found that a reasonable person would consider CP’s motives for collecting images of its employees and other visitors to be appropriate for the following reasons:

• The collection of images was not surreptitious as warning signs were displayed;
• Because the cameras captured a person’s image only when he or she was within a limited range of the image, the collection of personal information was not continuous;
• The filming was not limited strictly to employees, as other visitors were also caught on camera, and it was not used as a measure of work performance.

The Federal Court also concluded that the surveillance cameras were an effective tool to deter theft, vandalism and to enhance the security of the facility. The violation of privacy was also minimal because (i) the images were only accessible if an incident requiring investigation was reported and (ii) the filming took place in public spaces, where a person’s expectation of privacy is lower. Finally, the Court rejected other possible alternatives, such as fencing and using security guards, as they were not cost effective and could disrupt operations.

• General Electric Canada v. Communications, Energy and Paperworkers of Canada, local 544 (Tanner Grievance), [2007] O.L.A.A. No. 8 (Relevancy approach)

The employee was suspected of alleged fraudulent use of sick leave. The employer had ordered covert surveillance, and the employee was shown doing things inconsistent with the reasons why she was off work. On the video evidence, she was also shown inside her house, wearing a night-gown and ironing clothes. This footage was taken from the street as the grievor was standing near a window. Adopting the relevancy approach, the tribunal found that it had no discretion to exclude relevant evidence only  because it was “tainted by an invasion of privacy”.

• Visa Centre - Canadian imperial Bank of Commerce v. U.S.W.A., Local 2104 (B), [2002] C.L.A.D. No.11

The employee was a help desk specialist in the authorization and loss department of a bank’s Visa branch. He “surfed” the accounts of the bank’s customers, including celebrities and senior executives of the bank, “for no other purpose than entertainment and curiosity.” The Bank had adopted an IT policy, dealing with the responsibilities of the employees in connection with the access to the bank’s clients’ accounts. Notwithstanding inconsistencies in the application of the policy, it was clear and had been acknowledged by the employee.   The monitoring consequently deemed to be acceptable.

Published in 2/2010 IBA Newsletter of the Employment and Industrial Relations Committee.

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