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Arbitrator Excludes Evidence of Surreptitious Video Surveillance
September 17, 2003

An arbitrator has determined that video surveillance of an employee on disability leave violated the federal Personal Information Protection and Electronics Documents Act. As a result the video evidence was inadmissible to support the termination of the employee for misrepresenting the state of his health during his leave.

Section 7(1)(b) of the Act allows an organization to collect personal information without the knowledge or consent of the individual, if it is reasonable to expect that collection with the knowledge or consent of the individual would compromise the availability or accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement.

The arbitrator found that, had the employer advised the employee that it intended to conduct the video surveillance, it would have likely compromised the accuracy of the information. However, he concluded that it was not reasonable in the circumstances for the employer to have conducted the surveillance. The arbitrator applied the following test for the admissibility of video surveillance which has generally been applied in arbitral jurisprudence:

  1. Was it reasonable, in all the circumstances, to request a surveillance?
  2. Was the surveillance conducted in a reasonable manner?
  3. Were other alternatives opened to the company to obtain the evidence it sought?

    In determining the surveillance was unreasonable, the arbitrator relied on the fact that the employee had been an honest employee with no disciplinary record and had never submitted a false or fraudulent claim for insurance or other benefits. Further, the employer had failed to consider other alternatives such as an independent medical examination or a functional abilities test. The arbitrator concluded that it was inappropriate for the employer to have cast an electronic web to see what it might catch.

    This case demonstrates the importance of ensuring that decisions to conduct electronic surveillance of employees are carefully made. While British Columbia arbitrators have relaxed the test for admissibility in respect of requiring employers to demonstrate that they have exhausted all alternative means to obtain the evidence, it appears at least at the federal level that employers will be required to take certain reasonable preliminary steps prior to making the decision to conduct surveillance.

Ross v. Rosedale Transport Ltd., [2003] C.L.A.D. No. 237, May 26, 2003 (Brunner)