For provincially regulated employers in Ontario, there are two competing lines of cases as to whether video surveillance of employees should be admitted into evidence at arbitration.
The first line of authority, typically relied on by unions, is that this kind of evidence is only admissible if the employer can show that it had reasonable grounds to undertake the surveillance before doing so.
The second line of authority, usually invoked by employers, is that any evidence relevant to the matter in dispute is admissible.
It is unfortunate and undesirable that uncertainty in this area of the law has endured for so long. However, there are signs that arbitrators are increasingly questioning the validity of the first line of cases as noted in the recent decision of arbitrator David R. Williamson in Windsor-Essex County Health Unit and C.U.P.E., Local 543.3 (Kavanaugh) (2011), 208 L.A.C. (4th) 392.
In that case, three public health inspectors had been terminated for allegedly having falsified time and expense reports. Their terminations were based on covert video surveillance carried out by a private investigator. The video recordings were made during working hours at a number of public locations, including from the street outside the grievors’ residences. However, at arbitration, the union argued that this should not be admitted into evidence.
The arbitrator’s key reasons for admitting the video surveillance can be summarized in a few points:
- A few arbitrators who had previously adopted the reasonableness test for the admission of surveillance evidence have recently reconsidered their positions and adopted the relevance test.
- In Ontario, there is no general right or expectation of privacy which precludes observing or recording a person’s activities in public.
- Nothing in the collective agreement prohibited the surveillance in question, especially during working hours.
- The general rule followed by the courts is that relevant evidence is admissible unless covered by some exclusionary rule like solicitor-client privilege.
- Section 48(12)(f) of the Labour Relations Act, 1995, which gives arbitrators a discretionary power to accept evidence that might not be admissible in a court of law should not be interpreted as granting a power to exclude relevant evidence that would be admissible in a court of law. Citing case law of the Supreme Court of Canada and Court of Appeal for Ontario, the arbitrator opined that to hold otherwise could amount to a denial of procedural fairness, for preventing a party from presenting its case.
Arbitrator Williamson’s decision does not fully settle the law in this area, of course. However, it is a quite useful decision for employers, which provides a sound and current overview of the law. It is to be hoped that in the not too distant future there will be greater arbitral consensus on the applicable principles in cases like this one.