A number of recent, unrelated legal developments have caught my attention in relation to video surveillance, privacy and the Canadian workplace. This column is the first of a two-part series that will identify some of these recent developments and consider their broader implications.
Definition and scope
At the outset, it is beneficial to establish a definition of video surveillance as well as identify the scope of this column. By video surveillance, I am referring to one or more cameras mounted in fixed locations within or outside a building, facility or site. This column will not address mobile video surveillance in its various forms and guises.
Not all recent developments discussed here have a direct nexus to employment or labour law, but they will nonetheless be canvassed in the interests of painting a complete picture. It is also assumed that many readers of this column have primary or tertiary responsibility for operational matters and would thus benefit from this broader snapshot.
Pros and cons of video surveillance
Video surveillance is often viewed through a Utopian lens. Prevailing wisdom portrays the video camera as a security heavyweight proven to prevent crime, deter wrongdoers and garner successful criminal prosecutions. The truth of course is quite different. To put it simply, video surveillance is not a proven crime deterrent. Despite numerous studies on the effectiveness of camera surveillance, definitive evidence of meaningful crime reduction is all-but non-existent.
Assuming a video surveillance system is purposefully designed, installed and operated, there is ample evidence demonstrating the benefits of recorded video in support of criminal prosecutions. But if we’re going to truly consider the pros of camera surveillance, shouldn’t we take a moment to look at the cons? By cons, I’m referring to the downside risks associated with the operation of video surveillance systems.
Recently, a major organization found out firsthand that not managing the operational risks associated with video surveillance can be costly. The Greater Toronto Airport Authority (“GTAA”) was the subject of a filing from the Privacy Commissioner of Canada (“PCC”) in the Federal Court of Canada for refusing to implement privacy controls after an employee was able to use the airport’s camera system to spy on her ex-husband.
As was his right under the Personal Information and Protection of Electronic Data Act (“PIPEDA”), the ex-husband asked the GTAA to provide him with the personal information obtained by his ex-spouse (i.e. the video surveillance images). When the GTAA did not respond to this request within 30 days, the complainant filed a request with the PCC. The PCC investigated and found that the GTAA had breached PIPEDA.
The PCC recommended that the GTAA set up a login system on all computers that access the video surveillance system and establish an “acceptable use” policy to be signed by its employees. Inexplicably, according to the PCC, the GTAA refused to implement its recommendations causing the PCC to file an application with the Federal Court.
The PCC didn’t mince words when characterizing the gravity of the situation:
“(That) the GTAA didn’t recognize the seriousness of this situation when we spelled it out for them, refused to take steps to correct it, refused to put in place our recommendations, is even more worrisome. This is an organization that holds a lot of personal information when you look at the volume of people going through the Toronto airport.”
Risks under labour law
A recently reported grievance arbitration in Quebec offers important insights on the limitations placed on video surveillance in federally-regulated workplaces. A public transit authority employee brought a grievance against the employer questioning the legality of a recently-installed video surveillance system. The employer received a government subsidy in 2007 to strengthen security and mitigate the risk of terrorism. Following an expert security assessment, one of the many measures initiated by the transit authority was the installation of a 27-camera video surveillance system.
Cameras were mounted outside the building to monitor for trespassing and other criminal activity. A number of cameras were also installed within interior building areas. All employees were advised of the existence of video cameras and recorded video was retained for a period of 30 to 40 days.
The arbitration tribunal applied PIPEDA and based its analysis on the four-part test set out in the seminal 2004 Federal Court of Canada decision, Eastmond v Canadian Pacific Railway.
- Were the surveillance cameras and recording system necessary to meet a specific need of the employer? The tribunal found the employer had an obligation to provide transportation services that were maximally safe and secure. To achieve this, the tribunal decided that the employer had a duty to provide security against terrorism and other forms of crime.
- Were the cameras likely to be effective in meeting that need?
The tribunal heard and accepted evidence from a security expert who testified that video surveillance cameras are an effective deterrent in mitigating the risk of terrorism.
- Was the loss of privacy proportional to the benefit gained? In analyzing this question, the tribunal distinguished between the cameras located outside the building and those located inside. The cameras mounted outside the building were found to capture employee activity only parenthetically, while a number of cameras mounted inside the workplace were deemed to be an unreasonable invasion of privacy. While these cameras were installed for theft prevention purposes, the tribunal found there was no evidence of a serious theft problem in the workplace.
- Was there a less privacy-invasive way of achieving the same end? The tribunal decided that the outdoor cameras fulfilled a purpose that other measures could not and that the recording of employee activity was incidental to their primary, stated purpose. In contrast, the tribunal ordered the removal of those indoor cameras that were positioned to watch over employees on a continuing basis.
Risks under employment law
In a novel case decided in Ontario’s Superior Court, a management employee was awarded damages of $15,000 after a hidden camera was placed in the ceiling space in her office. The employer claimed that several thefts had occurred in the “office area” and it had the right to install a secret camera to ascertain the identity of the perpetrator(s). Further, the employer claimed the camera only operated part-time and rendered a poor quality image.
The manager refused to accept the employer’s position and treated the incident as a breach of her employment contract amounting to constructive dismissal. She escalated the incident to the company President who failed to respond to her request for severance and a letter of recommendation.
In noting the absence of privacy legislation in the employment standards context, the Superior Court applied the “good faith” and “fair dealing” obligations (recognized in the Supreme Court of Canada case, Wallace v United Grain Growers Limited, 1997, CanLII 332 (SCC)) as implied terms of the employment contract.
The Court stated:
“The cost to human dignity caused by such surveillance….left Mrs. Colwell in a position of being unable to rely upon the honesty and trustworthiness of her immediate supervisor, and amounted to more than merely “bad faith” and “unfair dealing”….I find Mrs. Colwell was justified in leaving this poisoned atmosphere and was, in fact, constructively dismissed.”
A Kelowna, BC environmental waste company is feeling the heat after it installed a cab-mounted video camera to monitor drivers. An employee took a photograph of the cab camera and launched a complaint with the BC Office of the Information and Privacy Commissioner (“OIPC”). OK Environmental Waste Systems, a private company, had not provided the driver with an explanation of the purpose of the video camera.
The driver who came forward with the complaint and one other company employee who spoke to the media were fired as a result of their actions. When the story first broke, OK Environmental Waste ignored a request to speak with CBC news. The next week, when approached by another media outlet, the employer’s response on the record was “no comment”.
In a CBC news article a representative from the OIPCs office is quoted as saying:
“We do view video surveillance as quite privacy invasive…. in some cases companies can collect video of their employees, but only if they’ve exhausted all other avenues of dealing with the problem….”
Video surveillance has become a mainstream security measure adopted in countless work settings, often with little to no consideration of the associated risks. This column has provided examples of recent cases where the decision to install surveillance cameras was clearly not balanced with the privacy rights of employees resulting in negative consequences for the employer.
Next month’s column will look further at the issues of video surveillance, privacy and the workplace. I will share recent research on PIPEDA compliance and video surveillance in Toronto, and will suggest actions that employers can consider in implementing and operating privacy-compliant video surveillance systems.
David Hyde, M.Sc., CPC
David Hyde and Associates
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