A significant decision concerning video surveillance in the workplace and new privacy legislation has been issued recently. In Erwin Eastmond v. Canadian Pacific Railway & Privacy Commissioner of Canada (June 11, 2004), the Federal Court of Canada refused to confirm a report by the federal Privacy Commissioner under the Personal Information Protection and Electronic Documents Act (PIPEDA), which had held that Canadian Pacific Railway was in breach of its PIPEDA obligations.
The complainant, Eastmond, an employee at the Canadian Pacific Railway (CP) and a member of CAW-Canada, Local 1001, filed a complaint with the Privacy Commissioner of Canada about CP’s installation of six digital recording surveillance cameras in its mechanical facility area. The mechanical facility area was part of CP’s main rail classification and maintenance yard in Scarborough, Ontario. CP had previously installed cameras to track the movement of locomotives and the dispatching of trains. However, it then installed cameras that focused on door entrances and exits.
Eastmond’s complaint claimed that the installation of those cameras was unacceptable because
- it was done in secrecy, without any union consultation;
- there was no security problem that could justify this invasion of privacy;
- the system could be used to monitor the conduct and work performance of workers, which would be an affront to human dignity; and
- the negative effect on workers’ morale and the working climate was dangerous.
Eastmond also demanded that the video surveillance system be dismantled and that all workers in the facility be made whole and receive full redress.
CP responded that installation of the cameras was necessary to reduce vandalism and deter theft, to reduce its potential liability for property damage and to provide security for staff. In support of these reasons, CP cited two incidents of vandalism and two incidents in which female employees had reported feeling vulnerable. The union responded that it had not been informed of the latter incidents and that, given the high traffic at the site entrance, security was not an issue.
PRIVACY COMMISSIONER: INSTALLATION OF VIDEO SURVEILLANCE NOT APPROPRIATE
In his report, the Privacy Commissioner focused on subsection 5(3) of PIPEDA, which states that personal information may be collected only for purposes that a reasonable person would consider to be appropriate. While acknowledging that, at first blush, CP’s stated purposes were reasonable, the Privacy Commissioner held that the installation of the system did not meet the test for appropriateness. This test poses four questions:
- Is the measure demonstrably necessary to meet a specific need?
- Is it likely to be effective in meeting that need?
- Is the loss of privacy proportionate to the benefit gained?
- Is there a less privacy-invasive way of achieving the same end?
The Privacy Commissioner held that a reasonable person would not consider the circumstances cited by CP sufficient to warrant taking as intrusive a measure as installing video surveillance cameras. Even though there had been some incidents of vandalism and theft, the Commissioner did not believe that CP had shown a demonstrable need for the cameras. Other alternatives, such as increased lighting in the parking lots, were available to meet these purposes. Moreover, the perceived privacy invasion could give rise to adverse psychological effects in employees. For these reasons, the Privacy Commissioner held that the complaint was well-founded.
FEDERAL COURT: VIDEO SURVEILLANCE NECESSARY, USEFUL, PROPORTIONAL
Eastmond applied to the Federal Court for an order confirming the Privacy Commissioner’s report and requiring the removal of the video camera system and the destruction of any videotape recordings generated by it.
In its analysis of the alleged PIPEDA violation, the Federal Court stated that the issue was whether a reasonable person would consider the reasons given by CP for conducting video surveillance at the mechanical facility area purposes that were appropriate in the circumstances. The Court adopted the same four-part test as that applied by the Privacy Commissioner but came to the opposite conclusion:
- It held that CP had identified numerous past incidents that justified the need to have surveillance cameras in place.
- It also held that video surveillance was useful to deter theft, vandalism and trespassers, to enhance the security of its employees, and for investigations.
- It noted that the collection of personal information was not surreptitious or continuous, nor was it limited to CP employees – it captured the images of contractors, visitors, suppliers and trespassers. Moreover, the collection was not intended to measure an employee’s work performance, and images collected could not be used to measure productivity because such a use would be for a purpose other than that for which they had been collected. More importantly, the recorded images were kept under lock and key and were never viewed unless an incident was reported.
- Finally, the court concluded that there was no less privacy-invasive way of achieving the same end. It found that alternatives such as fencing and the use of security guards would either not be cost effective or be disruptive of CP’s operations.
NO CONSENT REQUIRED FOR COLLECTION
Having reached this conclusion, the Court then turned to the question of whether the employees’ consent was required to collect the information. The Court found that CP could collect Eastmond’s personal information without his knowledge or consent because it benefited from the exemption in paragraph 7(1)(b) of PIPEDA, which provides that personal information can be collected without consent 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 or a contravention of the laws of Canada or a province”.
In conclusion, the Court held that CP was not in violation of PIPEDA and dismissed Eastmond’s application.
In Our View
The Federal Court took account of the arbitral case law on balancing the privacy interests of employees with the legitimate interests of employers when determining whether to admit videotaped evidence at arbitration. The case is, therefore, another indication that, at least in federally-regulated workplaces, PIPEDA rules may strengthen the predominant arbitral approach to the admission of evidence that involves an invasion of employee privacy: a collective agreement should be read to include an implicit term that such intrusive inquiries are permitted if they are reasonable in the circumstances. For more on recent decisions involving the interpretation of PIPEDA, see “Employee video surveillance and the new federal privacy legislation” and “More on PIPEDA and video surveillance” on our What’s New page.
For further information, please contact Raquel Chisholm at (613) 940-2755.