Secretly videotaping an employee is a powerful tool in exposing malingering, but courts won’t always allow it
A recent decision under Part III of the Canada Labour Code suggests that the analysis called for under new privacy legislation in the federal sphere may dovetail neatly with the existing arbitral jurisprudence concerning video surveillance of employees suspected of fraud or dishonesty.
Ross v. Rosedale Transport Ltd. dealt with the issue of admissibility of video surveillance evidence in a termination context, under the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA).
The complainant had been employed for nine years as a driver/associate with Rosedale Transport Ltd. He sustained a lower back injury at work and returned to work after a four-day absence. His duties were modified to accommodate his injury and he was assigned clerical and administrative responsibilities. The employer terminated him two months later on the basis of a private investigator’s video surveillance of his activities at his parents’ house. The video showed him undertaking physical activities in excess of his restrictions as certified by his physician.
At the hearing the complainant challenged the admissibility of the videotape evidence.
Rosedale had hired the private investigator to conduct video surveillance based on its suspicion the complainant’s recovery was taking far too long and he was exaggerating his injury. In Rosedale’s opinion the results of the video surveillance demonstrated a clear case of fraud. It terminated the complainant based on this evidence.
In determining the admissibility of the video surveillance, the adjudicator first noted that the tape contained “personal information” within the meaning of PIPEDA as it revealed the physical movements of an identifiable individual moving his belongings.
The relevant section of PIPEDA is s. 7(1), which provides that an organization may collect personal information without the knowledge or consent of the individual only if 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.
The adjudicator considered the two branches of this test. There was no doubt that had Rosedale advised the complainant and attempted to obtain his consent to conduct the video surveillance, this would likely have compromised the accuracy of the information.
Therefore the real issue was whether or not the collection of the personal information, via video surveillance, was reasonable for purposes related to investigating a breach of the complainant’s employment agreement.
The adjudicator focused on the reasonableness issue in this analysis, and held that the arbitral authorities were relevant, notwithstanding the fact that they were pre-PIPEDA.
The appropriate analysis was to ask:
•Was it reasonable in all the circumstances to request a surveillance?
•Was a surveillance conducted in a reasonable manner?
•Were other alternatives open to the company to obtain the evidence it sought?
The adjudicator cited Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4th) 111 (M.G. Picher) for the proposition that the employer’s interest does not extend to justifying “speculative spying” on an employee whom the employer has no reason to suspect will be dishonest.
Generally speaking, the employer is not justified in resorting to random videotape surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it.
The adjudicator concluded that in these circumstances the video surveillance was not reasonable, and did in fact amount to casting an electronic web. This conclusion was based on the following factors:
•there was absolutely no evidence that the complainant had ever been dishonest;
•he had no disciplinary record; and
•he had never submitted a false or fraudulent claim for insurance or other benefits.
Another key factor was the fact that there were a number of other means available to Rosedale to test the complainant’s medical condition. If Rosedale really thought the complainant was malingering, it was open for Rosedale to ask for an independent medical examination.
Video surveillance is therefore not reasonable in a situation where the employer, without any evidence that an employee is malingering or has made misrepresentations or spread disinformation as to his physical abilities, orders the surveillance in the hope of trapping the unsuspecting employee. Rosedale’s collection of the personal information was therefore a violation of s. 7(1)(b) of PIPEDA, and the evidence was ruled inadmissible.
The significance of this decision is the analysis of the “reasonableness” requirement under PIPEDA. It seems that the principles developed in the arbitral authorities will continue to apply to surveillance issues in the post-PIPEDA era. Employers are therefore advised to remember that video surveillance is an “extraordinary step,” such that they should pursue other methods of information gathering prior to implementing surveillance on their employees. Otherwise they risk being unable to rely on this evidence in a dispute with the employee.
Karla Koles is an associate lawyer in the labour employment and human rights department at Fasken Martineau in Vancouver. Her most recent area of focus has been the development of privacy legislation in B.C. and Canada.
Ross v. Rosedale Transport Ltd. dealt with the issue of admissibility of video surveillance evidence in a termination context, under the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA).
The complainant had been employed for nine years as a driver/associate with Rosedale Transport Ltd. He sustained a lower back injury at work and returned to work after a four-day absence. His duties were modified to accommodate his injury and he was assigned clerical and administrative responsibilities. The employer terminated him two months later on the basis of a private investigator’s video surveillance of his activities at his parents’ house. The video showed him undertaking physical activities in excess of his restrictions as certified by his physician.
At the hearing the complainant challenged the admissibility of the videotape evidence.
Rosedale had hired the private investigator to conduct video surveillance based on its suspicion the complainant’s recovery was taking far too long and he was exaggerating his injury. In Rosedale’s opinion the results of the video surveillance demonstrated a clear case of fraud. It terminated the complainant based on this evidence.
In determining the admissibility of the video surveillance, the adjudicator first noted that the tape contained “personal information” within the meaning of PIPEDA as it revealed the physical movements of an identifiable individual moving his belongings.
The relevant section of PIPEDA is s. 7(1), which provides that an organization may collect personal information without the knowledge or consent of the individual only if 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.
The adjudicator considered the two branches of this test. There was no doubt that had Rosedale advised the complainant and attempted to obtain his consent to conduct the video surveillance, this would likely have compromised the accuracy of the information.
Therefore the real issue was whether or not the collection of the personal information, via video surveillance, was reasonable for purposes related to investigating a breach of the complainant’s employment agreement.
The adjudicator focused on the reasonableness issue in this analysis, and held that the arbitral authorities were relevant, notwithstanding the fact that they were pre-PIPEDA.
The appropriate analysis was to ask:
•Was it reasonable in all the circumstances to request a surveillance?
•Was a surveillance conducted in a reasonable manner?
•Were other alternatives open to the company to obtain the evidence it sought?
The adjudicator cited Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4th) 111 (M.G. Picher) for the proposition that the employer’s interest does not extend to justifying “speculative spying” on an employee whom the employer has no reason to suspect will be dishonest.
Generally speaking, the employer is not justified in resorting to random videotape surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it.
The adjudicator concluded that in these circumstances the video surveillance was not reasonable, and did in fact amount to casting an electronic web. This conclusion was based on the following factors:
•there was absolutely no evidence that the complainant had ever been dishonest;
•he had no disciplinary record; and
•he had never submitted a false or fraudulent claim for insurance or other benefits.
Another key factor was the fact that there were a number of other means available to Rosedale to test the complainant’s medical condition. If Rosedale really thought the complainant was malingering, it was open for Rosedale to ask for an independent medical examination.
Video surveillance is therefore not reasonable in a situation where the employer, without any evidence that an employee is malingering or has made misrepresentations or spread disinformation as to his physical abilities, orders the surveillance in the hope of trapping the unsuspecting employee. Rosedale’s collection of the personal information was therefore a violation of s. 7(1)(b) of PIPEDA, and the evidence was ruled inadmissible.
The significance of this decision is the analysis of the “reasonableness” requirement under PIPEDA. It seems that the principles developed in the arbitral authorities will continue to apply to surveillance issues in the post-PIPEDA era. Employers are therefore advised to remember that video surveillance is an “extraordinary step,” such that they should pursue other methods of information gathering prior to implementing surveillance on their employees. Otherwise they risk being unable to rely on this evidence in a dispute with the employee.
Karla Koles is an associate lawyer in the labour employment and human rights department at Fasken Martineau in Vancouver. Her most recent area of focus has been the development of privacy legislation in B.C. and Canada.
