Another recent case dealing with collection of personal information about employees, this time through surveillance, emphasizes the importance of good employment policy language. In Toronto Catholic School Board v. Canadian Union of Public Employees, Local 1280, the question was whether surveillance tape evidence was admissible in an arbitration hearing.

In a previous bulletin, we told you about the court decision in R. v. Cole. It was about whether inappropriate images on an employee's workplace computer could properly be seized. One of the takeaways was that organizations should have clear policy language for employees. Policies should specify what constitutes inappropriate content on the employer's computers and internet connections. They should specify the types of monitoring that will happen. Employees should be told that they have no reasonable expectation of privacy on the employer's equipment.

Employer Uses Surveillance Tapes

In the recent Toronto Catholic School Board case, the employer had unilaterally instituted a policy that gave notice of the use of video surveillance. The purpose was to protect property and people. The policy said that video surveillance would not be used to monitor staff performance.

The employer had become aware that a certain employee had been leaving the property during working hours. She was approached and asked about the misconduct. After assessing the other evidence and interviewing the employee, the employer randomly selected videotapes to review. At the arbitration over the employee's discharge, the Union objected to the videotapes being admitted as evidence. The Union's position was that the videotapes had been reviewed in order to monitor staff performance; and the attempt to use them in evidence was in breach of the employer's own policy.

The arbitrator found that the videotape evidence was relevant and should be admitted. The employer only viewed the videotape after it had investigated the misconduct and determined the employee was being untruthful. Furthermore, the policy about not using them to monitor staff performance suggested a "checking over a period of time" to see how employees were performing. This did not seem to be the case here. In addition, the guidelines were not binding on the arbitrator.

Lessons For Employers

Ongoing viewing of employees while at work is generally considered to be too intrusive. It is therefore usually carved out of employer workplace surveillance and monitoring policies, in order to keep them in line with various arbitration and privacy commissioner decisions. This case serves as a good reminder that employers' policy language should be specific and clear about what is meant by "monitoring". It is a good idea to provide examples of when the employer will use videotape surveillance to investigate misconduct.

Both the Alberta and British Columbia Personal Information Protection Acts ("PIPAs)" provide an exemption for collection of personal information without consent where the organization is conducting an investigation. But the investigation definition is quite narrow. The safer approach is to obtain consent by giving specific notice of the purposes of the collection, use and disclosure of the personal information and ensure that this is reasonable for the purposes of managing the employment relationship. The result is that, even where there is an investigation exception in the PIPAs, employers should have clear and specific policy language about how they will monitor employees.

Please note that certain notions may differ in Quebec.