HomeMy WebLinkAbout2001-0562.Guelph.02-11-14 Decision
~M~ om~o EA1PLOYES DE L4 COURONNE
_Wi iii~~~i~T DE L 'ONTARIO
COMMISSION DE
REGLEMENT
"IIIl__1I'" BOARD DES GRIEFS
Ontario
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GSB#0562/01
UNION#0IC403
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Guelph)
Grievor
-and-
The Crown III RIght of Ontano
(Mimstry of TransportatIOn)
Employer
BEFORE Damel A. Hams Vice-Chair
FOR THE UNION Peggy SmIth
ElIot, SmIth
Bamsters and SOlICItorS
FOR THE EMPLOYER Carol Ann Witt
Counsel
Management Board Secretanat
HEARING October 28 2002
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DECISION
The Proceedings
In thIS matter the Umon has gneved that Paulette Guelph was unjustly dIscharged from her
employment as a hothne operator wIth the MmIstry of TransportatIOn. The allegatIOns
agamst Ms Guelph are that she had a conflIct of mterest whIch came about as a result of
her havmg owned a retall store whIle employed by the MTO In the course of the
mvestIgatIOn, the Employer dIrected a pnvate mvestIgatIve firm to vIdeotape Ms Guelph
whIle she worked at the retall store dunng a penod that she was m receIpt of sIck benefits
that had excused her attendance at work. The Umon has objected to the mtroductIOn of the
vIdeotape eVIdence ThIs decIsIOn deals wIth the admIssibIhty of that eVIdence
The Facts
The Umon takes Issue WIth the reasonableness of the decIsIOn made by the Employer to
mvestIgate Ms Guelph. The eVIdence to date dIscloses that Tim Ferguson, the Program
Manager wIth responsibIhty for the telephone hothne operators, met wIth Allen Talt, an
InvestIgatIOns Manager wIth the MImstry of TransportatIOn. At that tIme Mr Ferguson
revIewed wIth Mr Talt hIS concerns regardmg a possible conflIct of mterest ansmg as a
result ofMs Guelph's owmng a retall store m Kmgston, Ontano They dIscussed four
aspects ofMs Guelph's behavIOur that caused Mr Ferguson concern. Those four areas of
concern mcluded the gnevor's use of MImstry computers for the preparatIOn of busmess
related documents, the gnevor's mappropnate use of the telephone, for busmess purposes,
the gnevor's mappropnate use of a MImstry of TransportatIOn credIt card for financmg
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purchases related to the retail busmess and the possibIhty that the gnevor, who was on sIck
leave at the tIme of the meetmg, mIght m fact be engaged m actIvItIes relatmg to the retail
busmess
That day, Mr TaIt made a prehmmary mvestIgatIOn of the gnevor's computer, and beheved
he found prima facie eVIdence of the mappropnate use of the computer for the generatIOn of
busmess documents Based on hIS dIscussIOns wIth Mr Ferguson, Mr TaIt concluded that
there was reason to be concerned regardmg the gnevor's use of the Employer's telephone
and Amex credIt card. He asked Mr Ferguson to obtam the documents necessary to assess
those two areas Based on the three areas of concern, Mr TaIt and Mr Ferguson concluded
that It would be appropnate to engage the servIces of an mdependent surveIllance company
m order to determme whether or not Ms Guelph was then engaged m the operatIOn of her
retail busmess, whIle she was off work from the MInIStry of TransportatIOn and m receIpt of
sIckness benefits That decIsIOn was confirmed m a telephone dIscussIOn between Mr TaIt
and hIS DIrector, Charles Brown. Mr TaIt testIfied that although the mIsuse of sIck leave
credIts was only conJecture at that pomt, It was not umeasonable to mvestIgate that concern
gIVen the other areas that had been IdentIfied. The best eVIdence of the mIsuse of sIck leave
credIts would be VIdeotape surveIllance that showed If the gnevor was workmg at the store
whIle on sIck leave
Mr TaIt was asked If there would have been less mtruSIVe optIOns open to the mvestIgatIOn
of the use of sIck leave credIts He testIfied that telephone calls could have been placed to
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the gnevor However, gIVen the current technology, It would not be conclusIve proof that
the gnevor was physIcally m one locatIOn or another when she took the call. He also
testIfied that It would have been possible for management to meet wIth the gnevor and ask
her whether or not she had engaged m the operatIOn of the retail store whIle on sIck leave
He testIfied that the makmg of such an unproven allegatIOn to an employee would be unfair
That IS, to confront an employee wIth such conJecture, whIch could turn out to be
maccurate, would be unfair and offensIve to the employee However, If there was a
foundatIOn for the accusatIOn, an employee ought to be confronted wIth a comprehenSIve
allegatIOn, the best eVIdence of whIch would be vIdeotape eVIdence
The Submissions of the Parties
The Umon submItted that It was umeasonable to ImtIate vIdeotape surveIllance on March
12,2001 The Umon said that vIdeotape surveIllance IS mtrusIVe, and other less mtruSIVe
means of mvestIgatmg the allegatIOns of the alleged mIsuse of sIck leave credIts were open
to the Employer The Umon said that It IS always necessary to balance the nght ofpnvacy
of an employee agamst the Employer's nght to mvestIgate potentIal breaches of the
collectIve agreement. In partIcular, the Umon submItted that It was umeasonable to engage
m vIdeotape surveIllance m these CIrcumstances wIthout first fully appnsmg themselves of
the nature of the Illness for whIch Ms Guelph was takmg sIck leave The Umon saId that m
these CIrcumstances Ms Guelph was off work wIth the MTO on a stress related leave
Accordmgly, any actIvIty of the gnevor workmg m a retail store may be completely
consIstent WIth a stress related leave from the MTO' s telephone hothne operator posItIOn.
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The Umon also submItted that If the Employer was concerned about the potentIal mIsuse of
sIck leave, It had the optIOn open to It under the collectIve agreement of requestmg a second
medIcal opmIOn.
The Umon argued m the alternatIve that the decIsIOn to embark on vIdeo surveIllance was
premature There was no eVIdence that the Employer could not have contacted the gnevor
or that she would not have admItted freely that she was workmg m the store gIVen the
reasons for whIch she was on sIck leave The Umon rehed on the followmg two cases
Toronto Star Newspapers Ltd And Southern Ontario Newspaper Guild, Local 87, (1992),
30 L.A C (4th) 306 (Spnngate) and Toronto Transit Commission and Amalgamated Transit
Union, Local 113 (1999), 95 L.A.C (4th) 402 (Chapman)
The Employer argued that the Board should take a liberal VIew of admIssibIhty m VIew of
the provISIOns of sectIOn 48( 12)(f) of the Ontario Labour Relations Act, 1995 The
Employer submItted that there IS no general nght to pnvacy such as would mterfere wIth
the Employer's decIsIOn to engage m vIdeotape surveIllance of the gnevor whIle she worked
m a retail outlet m downtown Kmgston. The Employer also submItted that even If It were
necessary to balance the pnvacy mterest of the employee agamst the Employer's mterest m
properly mvestIgatmg such allegatIOns, the Employer's decIsIOn would have to be taken as
reasonable Mr TaIt was said to have enough prima facie eVIdence of a conflIct of mterest
as It related to the use of the Amencan Express Card, the use of the telephone and the use of
the computer, to JustIfy a concern that there may well have been a mIsuse of sIck leave
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credIts The decIsIOn to engage m vIdeotape surveIllance was said to be reasonable because
that would be the best eVIdence of the gnevor's actIvIty
The Employer rehed upon the followmg authontIes Canadian Timken Ltd. & USWA, Local
4906 (2001), 98 L.A.C (4th) 129 (Welhng), Kimberly-Clarke Inc & IWA-Canada, Local]-
90-4, (1996),66 L.A.C (4th) 266 (Bendel), Toronto Transit Commission & ATU, Local]]3
(1999),79 L.A.C (4th) 85 (Solomatenko), Canadian Pacific Ltd & BMWE (1996),59
L.A.C (4th) 111 (PIcher), Brewers Retail Inc & United Brewers' Warehousing Workers'
Provincial Board (1999), 78 L.A.C (4th) 394 (Herman), Toronto Transit Commission &
ATU, Local 113 (1999),88 L.A.C (4th) 109 (ShIme)
Reasons for Decision
ThIs Issue appears to be one of first ImpreSSIOn before thIS Board. Accordmgly, It IS
essentIal to adhere to the general adJudIcatIve dIctate to decIde the matter on the narrowest
possIble basIs Regrettably, prevIOUS decIsIOns have not taken thIS approach. Rather, many
of the cases have engaged m a nghts dIscourse that can only be taken as bemg far more
abstract than was contemplated m bargammg seSSIOns between the partIes In Kimberly-
Clark, supra at page 285, ArbItrator Bendel revIewed the expectatIOns of a Board of
ArbItratIOn m deahng wIth eVIdentIary Issues raised by sectIOn 48 (12)(f)
The fundamental questIOn that has to be asked IS whether an arbItrator m the exerCIse of the
dIscretIOn conferred b, sectIOn 48 (l2)(f) of the Labour Relations Act 1995 IS entItled to reh on
such consIderatIOns In other words, was It mtended b, the LegIslature m enactmg thIS provIsIOn,
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that arbItrators mIght exclude eVIdence that IS relevant and court admIssible thereb, denymg a part,
the opportumn ofpresentmg It s best case m the mterests of safe guardmg the credibIht, of the
arbItratIOn process?
The courts have been called upon on several occaSIOns to explam what the, see as the purpose of
provIsIOns such as sectIOn 48(12)(f) In Re Toronto (OM & C UP E. Local 79 (1982) 133 D.L.R.
(3d) 94 the Ontano Court of Appeal at pages 106-9 had thIS to sa, on such a provISIOn.
It IS plam that the Board was not bound b, the rules of eVIdence and the argument addressed
to us b, the umon and b, the arbItratIOn board decIsIOns cIted b, It fh m the face of the
statute A decIsIOn b, an, board to refuse to admIt eVIdence because It was not admIssible
m the courts would constItute an ObVIOUS error oflaw In addItIOn, the dIscretIOn of a
board ObVIOush would be Improperh exercIsed If It acted m the behef that these legal
rules were bmdmg upon It. It IS beyond questIOn that an, board so actmg would fetter ItS
dIscretIOn.
The purpose of arbItratIOn of gnevances under collectIve agreements IS to provIde an
expedItIOus and fair method of setthng dIsputes whIch expenence has demonstrated are
much better solved m thIS fashIOn than b, complex JudIcIal proceedmgs Most arbItrators
are laymen who bnng the benefit of theIr expenence to the practIcal solutIOn of complex
human problems Courts consIstenth have recogmzed the special role of arbItratIOn boards
and have been loath to mterfere wIth theIr decIsIOns or proceedmgs
It IS therefore surpnsmg to observe the extent to whIch arbItratIOn awards purport to deal
wIth complex questIOns of law Man, arbItratIOn board decIsIOns cIted to us contam
scholarh dIssertatIOns on Important substantIve and procedural rules apphcable to JudIcIal
proceedmgs The, exemphf\ the extreme legal formahsm and adherence to techmcal rules
whIch overhangs the arbItratIOn process At best, these elaborate legal studIes ma, be
Irrelevant because boards are not bound m theIr procedure b, techmcal rules oflaw and
procedure At worst, the, can cause dela, and unnecessan expense and, as the argument m
thIS appeal demonstrated, the, can obscure the real Issues confrontmg an arbItratIOn board
and confuse It m the performance of ItS dun
In my VIew the Junsprudence rehed upon exemphfies the scholar dIscussIOns referred to by
the Court of Appeal. Those abstract dIscussIOns of the admIssibIhty of surveIllance
eVIdence have obscured the labour-relatIOns Issues F or example, Canadian Timken, supra,
IS a powerful polemIc grounded m a pOSItIVISt analYSIS that decnes the lack of black-letter
law support for a "nght" ofpnvacy, TTC vATU, Local]]3 (Belsito), supra, IS an equally
powerful analysIs, on the human nghts sIde of the nghts dIscourse, put forward for the
recogmtIOn and protectIOn of a fundamental human nght of pnvacy But I dIgress, and nsk
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bemg drawn mto the "talmudIc" vortex adverted to by ArbItrator ShIme (see TTC vATU,
Local 113 (Russell) at page 109) Whether or not nghts fall from the sky does not Illummate
the expectatIOns of the partIes to a collectIve agreement as to how the agreement wIll be
admImstered. For those reasons, I am drawn to the labour-relatIOns centered approach of
Canadian Pacific v B.M WE, supra, and Centenary Health Center v C U 0 E
(Ahluwalia) (1999), 77 L.A C (4th) 436 (Albertyn) Although ArbItrator ShIme's decIsIOn
m TTC v ATU (Russell), supra, IS attractIve mIts sImphcIty, It cannot be that an employee's
expectatIOns of pnvacy, as a functIOn of the place where surveIllance occurs, are
determInatIve If that IS the ratio of the ShIme award, It goes too far That IS, m a labour-
relatIOns context, the mere fact that an employee IS In a pubhc place IS not sufficIent to
permIt an employer to rely upon surveIllance of the employee for workplace dIscIphne
purposes wIthout some reason for the employer to have engaged m surveIllance m the first
place
The first prmcIple from whIch the analyses m these surveIllance cases ought to proceed IS
that there IS an employment relatIOnshIp between the watcher and the watched. If there IS
no reasonable hmIt on the Employer's contractual nght to supervIse the actIvItIes of ItS
employees outsIde of the workplace, It calls to mmd the analYSIS of ArbItrator EllIs m
Purtex Knitting Co & Canadian Textile and Chemical Union, (1979), 23 L.A.C (2d) 14 at
pages 29-30
In the use of electromc surveIllance It IS apparent that we confront conflIctmg socIal values of
consIderable sIgmficance There IS on the one hand the pnncIple of the nght to pnvac, and beyond
that the more general Idea, of whIch the nght to pnvac, IS onh one facet, of the crucIal Importance
9
of preservmg and nurtunng the hIstoncalh fragIle concept of human dIgmt, The Orwehan
construct of the ultImateh socIahzed man and, as suggested m the EICO case the programmed
facton of Chaplm s 'Modem Times are wIdeh accepted m thIS socIet, as classIc IllustratIOns of a
world gone wrong -- of antI-human socIetal tendencIes Electromc surveIllance IS the ultImate
socIahzmg devIce and the pubhc controvers, whIch always attends ItS use attests to people s
mstmctIve IdentificatIOn of ItS fundamentalh antI-human character On the other sIde of the Issue
are sImph consIderatIOns of efficIenc, m dealmg wIth socIal problems
The Issues are not dIfferent m the mdustnal context.
It IS clearh a matter ofbalancmg competmg consIderatIOns after recogmzmg that an, use of
cameras that observe employees at work IS mtnnsIcalh senoush objectIOnable m human terms wIth
the degree of ObjectIOn dependmg on the wa, the cameras are deployed and the purpose for whIch
the, are used
That case mvolved an mterest award and related to cameras mstalled mSIde the workplace
For an employer to surreptItIOusly film or vIdeotape employees outsIde of the workplace IS
by defimtIOn an mtruSIOn mto theIr pnvate, non-employment spheres of actIvIty An
employment relatIOnshIp IS of an on-gomg nature that must be based on mutual trust. The
cases are legIOn of dIscharge bemg appropnate when that bond of trust IS broken.
ArbItrator Albertyn described the sItuatIOn m Centeniary Health Center, supra, at pages 442
to 443 as follows
Although there IS no statuton nght of pnvac, m Ontano plamh employees have some entItlement
to expect a pnvate hfe whIch IS not under the custodIanshIp of the employer although the
employee s reasonable expectatIOn of pnvac, will van dependmg upon the context and
CIrcumstances m whIch the employee seeks to assert that nght. In other words, the nght to pnvac,
IS not absolute and must be consIdered m the context of the contractual obhgatIOns of the partIes to
the employment relatIOnshIp
We also accept the ratIOnale for the reasonableness approach, as contamed m Canadian Pac~fic Ltd.
at 124 f-g that boards of arbItratIOn have an obhgatIOn 'to safeguard the mtegnt, of theIr arbItratIOn
procedures, and the credibihn of the arbItratIOn process generalh
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All of these consIderatIOns conduce towards the acceptance of the reasonableness approach.
However m our VIew the, do not plum the essence of wh, arbItrators should weIgh reasonableness
m the balance agamst the heav, consIderatIOn of the employer s nght to present all relevant
eVIdence however obtamed. What IS fundamental to the employment relatIOnshIp IS mutual trust
and respect between an employer and It s employees Employers should therefore not engage m
conduct whIch assumes, or IS founded upon, SuspICIOn and mIstrust of theIr employees Good faith
and mutual trust are mtnnsIC features of the employment relatIOnshIp A manIfestatIOn of these
foundatIOns of the employment relatIOnshIp IS that both partIes are assumed to be actmg m good
faith towards each other unless there IS some reasonable basIs for concludmg otherwIse The mutual
trust and respect between employees and theIr employer and bonafide conduct between them, are
fundamental to the success and efficac, of employment and collectIve bargammg relatIOnshIps
Ongomg trust IS essentIal not onh to the relatIOnshIp between employers and theIr employees, but
also to the collectIve bargammg relatIOnshIp between employers and trade UnIons SurreptItIOus
conduct on the part of one collectIve entIn towards another or m the admmIstratIOn of theIr
collectIve agreement, has the effect of undermmmg the mutual trust and respect whIch are vItal to an
ongomg, successful collectIve bargammg relatIOnshIp Boards of arbItratIOn should therefore not
condone conduct whIch serves to undermme that trust and the good faith foundatIOn of efficacIOus
labour and employment relatIOnshIps, unless there IS good reason to do so
The pre-condItIOn for an employer to rely upon the fruIts of Its surveIllance efforts IS that
there was a reasonable basIs to JustIfy ItS decISIOn to watch the employee outsIde of the
workplace It must have a legItImate work-related reason for engagmg m such surveIllance
In Canadian Pacific Ltd, supra, ArbItrator PIcher reflected on the employer's mterest m
cases such as thIS as follows at pages 123-124
Part of the bargam m man, contemporan employment relatIOnshIps mvolves the payment b, the
employer or ItS msurance carner of sIckness benefits or other forms of msurance or mdemnItIes,
short term or long term, when an employee IS mcapacItated b, Illness or mJun An employer
ObVIOush has a legItImate mterest m preventmg abuse of that system of employee protectIOn b,
those who would advance fraudulent claims
That mterest must be faIrh balance wIth what IS becommg recognIzed as the employee s mterest m
a respect for hIS or her personal pnvac, the employer s mterest does not eAiend to JustIfymg
speculate spymg on an employee whom the employer has no reason to suspect wIll be dIshonest. As
a general rule It does not JUStIf\ a resort to random vIdeotape surveillance m the form of an
electronIc web cast like a net, to see what It mIght catch. Surveillance IS an extraordman step
whIch can onh be resorted to where there IS, beforehand, reasonable and probable cause to JUStIf\ It.
What constItutes such cause IS a matter to be determmed on the facts of each case As well, the
method and extent of such surveIllance must be appropnate to the employer s purpose and not
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exceSSIve or unduh mtrusIve A legItImate mterest m an employee s physIcal condItIOn mIght not,
for example JUStIf\ the covert exammatIOn of hIS or her bank records or other personal mformatIOn.
In m, VIew m a case such as thIS, m consIdenng the admIssibIht, of vIdeotape eVIdence acqUIred m
the course of surreptItIOus surveIllance the appropnate test mvolves a two-part analYSIS
1 Was It reasonable mall of the cIrcumstances, to undertake surveillance of the employee s off-
dun actIvIt,?
2 Was the surveIllance conducted m a reasonable wa, whIch IS not unduh mtrusIve and whIch
corresponds faIrh wIth acqumng mformatIOn pertment to the employer s legItImate mterests?
ThIS approach, dIhgenth apphed, should protect reasonabh agamst the possible abuse of the nght
of an employer to resort to surveIllance of ItS employees, m a manner consIstent WIth the obhgatIOn
whIch boards of arbItratIOn have to safeguard the mtegnt, of theIr own procedures, and the
credibIhn of the arbItratIOn process generalh
The analyses of ArbItrators PIcher and Albertyn are mformed by labour-relatIOns
consIderatIOns that may result m the exclusIOn of relevant eVIdence pursuant to s 48(12)(f)
ArbItrator Spnngate m Toronto Star Newspapers Ltd , (supra), put the matter as follows at
page 312
an employer generalh does not have the nght to mtrude on an employee's pnvac, b, vIdeotapmg
hIS or her conduct. An employee's nght to pnvac, however IS not absolute and m certam
CIrcumstances the employer's mterests ma, outweIgh an employee's nght to pnvac, In order for an
employer to estabhsh that thIS IS the case It must demonstrate that It was reasonable for It to resort
to surveIllance and also that the surveillance was conducted m a reasonable manner
I now turn to the facts of thIS case to determme whether It was reasonable, m all of the
cIrcumstances, for the Employer to undertake vIdeotape surveIllance of Paulette Guelph's
off duty actIvIty at her retail store Put dIfferently, dId the Employer have reason to suspect
the gnevor of bemg dIshonest?
As set out above, the decIsIOn to engage a firm to watch Ms Guelph was made by Mr TaIt
and Mr Ferguson and confirmed m dIscussIOns between Mr TaIt and hIS supenor Mr
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Brown. There was a reasonable basIs for that decIsIOn. The Employer had reason to
beheve that Ms Guelph had used MTO resources to further the success of her retail store
Those resources were ItS computer and telephone eqUIpment and ItS corporate Amex credIt
card. GIVen those concerns about potentIal conflIcts of mterest, It had reason to questIOn
whether she was really sIck or workmg m her store Accordmgly, the Employer had some
reasonable cause to take actIOn to mvestIgate
The Umon spent some effort m estabhshmg that there were other optIOns open to the
Employer other that vIdeotape surveIllance In the CIrcumstances of thIS case, vIdeotape
surveIllance was not an umeasonable chOIce The SuspIcIOn was that the gnevor was
workmg at the store whIle on sIck leave The most straightforward approach was to go and
look. The best eVIdence of what was to be seen would be to record the events Although
there may well have been other optIOns open to the Employer, there IS no obhgatIOn to
exhaust all other optIOns before resortmg to vIdeotape surveIllance when the chOIce of
surveIllance was Itself reasonable
In all of the cIrcumstances, I find that It was reasonable for the Employer to undertake
vIdeotape surveIllance of the gnevor's off-duty actIvIty Although these reasons have
addressed the vIdeotape surveIllance eVIdence, seemmgly, there IS other eVIdence m the
form of wntten reports that also arose from the surveIllance There can be no sustamable
dIstmctIOn drawn between the vanous pIeces of eVIdence produced by VIrtue of the
surveIllance
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Fmally, the Umon submItted that the Employer ought to have consIdered that the stress that
excused the gnevor from her hothne operator's Job was not present at the store, so
surveIllance could not be JustIfied. That IS, although unable to work for the MTO due to
stress related Illness, she may have been able to work at the store That mayor may not turn
out to be true However, that IS no bar to gomg to look to see If she IS workmg m her store
Such consIderatIOns go to the weIght to be attached to the surveIllance eVIdence, not ItS
admIssibIhty
I have not yet seen the vIdeotape However, the Umon has mdIcated that It does not take
Issue WIth the methodology employed m the creatIOn of the tape Accordmgly, there IS no
need to go to the second step m assessmg the admIssibIhty of the surveIllance eVIdence
The Decision
The Umon's obJectIOn to the admIssibIhty of the surreptItIOus surveIllance eVIdence IS
demed.
Dated at Toronto thIS 14th day of November, 2002
:\
Daniel A. HarrIs, V Ice-Chair