Introduction

Surveillance may be an effective way for an employer to confirm or dispel doubts about the legitimacy of a disability claim, but when is it legally permissible in Canada? In its recent decision in Centre de santé et de services sociaux de la Vallée-de-la-Gatineau v Martin,(1) the Quebec Superior Court weighed in on this issue. It set aside a 2013 arbitration award that excluded video surveillance evidence. Despite a medical assessment finding that the disability claim was fake, the arbitrator had ruled that the employer did not have reasonable grounds to undertake the surveillance. The court disagreed.

Generally, in Canada, the employer's right to undertake surveillance is limited in order to protect the fundamental right to privacy of all employees. Courts and tribunals have ruled that before initiating a surveillance operation, an employer must have reasonable grounds for conducting it. Further, even if there are reasonable grounds, surveillance must be done in the least intrusive manner possible.

Facts

The employee in question had been known to suffer for several years from osteoarthritis in her shoulders, a condition that was tolerable but painful. In May 2010 the employee consulted an orthopaedic surgeon, who recommended surgery; this took place on July 8 2010. The employee had to take time off work starting from that date. On September 17 2010 the employee had a medical examination by an employer-designated physician.

The employee arrived at the medical clinic, parked her car and got out. She picked up her handbag – which was between the two front seats of the car – with her right hand, put the handbag on her left shoulder, closed the car door and went into the clinic. By chance, the doctor designated to examine the employee was sitting in his car, which was parked just behind the employee's, the whole time. He was therefore able to observe her movements.

In the medical report that followed, the physician noted that the employee was obviously faking because of what he had observed from his vehicle. Based on this report, the employer decided to conduct surveillance for one day (September 23 2010) in public places. It later dismissed the employee.

Arbitrator's decision

In his arbitration award,(2) the arbitrator concluded that the surveillance video was inadmissible as evidence, admitting that it "would trivialize the violation of a fundamental right and would suggest that otherwise inadmissible evidence becomes admissible simply because it possibly confirmed after the fact a suspicion or impression" (author's translation).

The arbitrator decided that the physician's mere impression did not constitute reasonable grounds for undertaking surveillance, considering that the doctor was probably biased against the employee. The dismissal was therefore set aside and the employer had to reinstate the employee.

Quebec Superior Court decision

The employer sought a judicial review of the arbitral award in the Quebec Superior Court, which did not see the employer's decision to conduct surveillance in the same way as the arbitrator. The court analysed the evidence available to the employer at the time the decision was made. It concluded that it did not involve mere intuition on the part of the physician, but rather actual observable facts. Accordingly, the medical report constituted reasonable grounds for the employer to verify that there was a genuine disability.

The court added that a reasonable and well-informed person would have a favourable view if the administration of justice allows the truth to be discovered, so the video evidence had to be admissible. The arbitration award was therefore set aside and the matter referred back to the arbitrator to reconsider the case after admitting the video relating to the surveillance.

Comment

Recent case law shows that decision makers are of the opinion that the search for truth is of greater importance when basic parameters around the collection of evidence are respected. If an employer has sufficiently reasonable grounds to seek to verify or dispel its doubts and the surveillance is conducted reasonably, the evidence relating to the surveillance will be admissible in court.

For further information on this topic please contact Mikaël Maher at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email (mmaher@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

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Endnotes

(1) Centre de santé et de services sociaux de la Vallée-de-la-Gatineau v Martin, 2016 QCCS 1927.

(2) Centre de santé et de services sociaux de la Vallée-de-la-Gatineau and STT du CSSS de la Vallée-de-la-Gatineau CSN, DTE 2013 T-213.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.