On March 25, 2014, Federal Labour Arbitrator Christine Schmidt determined that the Canadian National Railway Company (“CN”) was in breach of section 5(3) of the  Personal Information Protection and Electronic Documents Act (“PIPEDA”) after it installed a video camera to monitor a bulletin board following the posting of offensive material. In Canadian National Railway Company v Teamsters Canadian Rail Conference, 2014 CanLII 15954 (CA LA) Arbitrator Schmidt found that, in the circumstances, it was not appropriate for CN to collect personal information using video surveillance. Arbitrator Schmidt also found that CN was not investigating either a breach of an agreement or a contravention of a law and, as such, could not rely on the exception to obtaining consent for collection, use, and disclosure found in section 7 of PIPEDA.

Section 5(3) of PIPEDA states that an organization “may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.”

Section 7(1)(b) of PIPEDA states that:

  1.  (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if

[…]

(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;

On January 29, 2013, a CN employee reported that offensive material had been posted on the bulletin board in a booking-in room: an unrestricted area accessible to employees, contractors, and delivery personnel. The employee, who is gay, felt intimidated by the anonymous posting and reported it as harassment.  The employee who made the complaint did not know who posted the material on the bulletin board.

CN began an investigation and contacted the CN Police. The Police determined they did not have grounds to install a surveillance camera.

On January 31, 2013, a CN superintendent purchased a video camera, which could not record audio. The camera was installed on March 7, 2013 and pointed at the bulletin board. It was discovered by CN employees on March 13, 2013 and removed by CN on March 17th. No images were recorded due to a technical error. Between January 29, 2013 and the removal of the camera no other offensive material was posted on the bulletin board.

The Union filed a grievance alleging that CN had breached both the collective agreement and PIPEDA.  With respect to compliance with PIPEDA, Arbitrator Schmidt was required to determine whether the collection of personal information without consent by video camera was reasonable in the circumstances. In order to do so, she considered the following questions:

  1. Is the measure demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy invasive way to achieve the same end?

Arbitrator Schmidt determined that CN had an obligation to first investigate the complaint through less privacy intrusive measures, such as interviewing the employee to determine who may have been targeting him, before considering video surveillance. She also found that video surveillance was unlikely to lead to the identification of the individual who posted the note and that it would not be useful in determining whether the employee who made the complaint was being targeted for harassment.

Additionally, Arbitrator Schmidt found that CN could not rely on the exception to consent found in section 7 of PIPEDA. She determined that the investigation of a harassment complaint cannot be considered either an investigation of a breach of an agreement or an investigation into a contravention of the law.

Arbitrator Schmidt’s restrictive interpretation of the exceptions to consent under PIPEDA is consistent with previous jurisprudence and reinforces that privacy intrusive investigative measures, such as video surveillance, should only be used where other investigative means have failed, rather than at the start of an investigation. This decision will also likely limit the ability of organizations to collect, use, or disclose personal information without consent when investigating harassment complaints.