When doubts exist about whether a disability or illness claim is genuine, surveillance may be an effective way for an employer to confirm or dispel their doubts. But when is surveillance permissible? In the recent decision Centre de santé et de services sociaux de la Vallée de la Gatineau v. Martin (PDF - available in French only), the Quebec Superior Court weighed in on this issue. It set aside a 2013 arbitration award that excluded video surveillance evidence. The arbitrator had ruled that the employer did not have reasonable grounds to undertake the surveillance.
Generally, the employer's right to undertake surveillance is limited by the courts and tribunals, to protect the fundamental right to privacy of all employees. It has been held that before initiating a surveillance operation, an employer must have reasonable grounds for conducting it. Even if there are reasonable grounds, surveillance must be done in the least intrusive manner possible.
The employee in question had been known for several years to suffer from osteoarthritis in the shoulders, a condition that was tolerable but painful.
In May 2010, the employee consulted an orthopedic surgeon, who recommended surgery. The surgery took place on July 8, 2010. The employee had to be off work starting on that date.
On September 17, 2010, the employee attended for a medical examination by an employer-designated physician.
The employee arrived at the medical clinic parking lot, parked and got out of her car. She picked up her handbag, which was between the two front seats of the car, with her right hand. She put the handbag on her left shoulder, closed her car door and went into the clinic. By chance, the doctor designated to examine her was sitting in his car, which was parked just behind the employee's, for this whole time. He was therefore able to observe the movements made by the employee.
In the medical report which followed, the physician noted that the employee was obviously faking, because of what he had observed from his vehicle. Based on that, the employer decided to conduct surveillance for one day, September 23, 2010, in public places. They later dismissed the employee.
The Arbitrator's Decision
In his arbitration award, the arbitrator concluded that the surveillance video was inadmissible as evidence (PDF - available in French only). Admitting it [Translation] "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."
The arbitrator decided that the physician's mere impression did not constitute reasonable grounds for undertaking surveillance, taking into consideration that the doctor was probably biased against the employee. The dismissal was therefore set aside and the employer had to reinstate the employee.
The Superior Court's Judgment
The employer sought judicial review of the arbitral award in the Quebec Superior Court. The Court did not see the employer's decision to conduct surveillance in the same way as the arbitrator.
The Court analyzed 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 in evidence.
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.
Recent case law shows that decision-makers are of the opinion that the search for the 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 also conducted reasonably, the evidence relating to the surveillance will be admissible in court.