HomeMy WebLinkAbout2019-2154.Union.21-09-17 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2019-2154
UNION# 2019-0999-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Ed Holmes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 23 and 26, April 20, 2021
-2-
DECISION
[1] Correctional facilities have hundreds of surveillance cameras to ensure the safety
and security of staff, inmates and the facilities themselves. The issue before me is
the limits on the use of those surveillance cameras, and information obtained from
them, to monitor the performance of the employees of those correctional facilities.
[2] This is a Union grievance. There are a number of other individual or group
grievances outstanding with respect to the use of surveillance equipment in
correctional facilities across the Province which have been consolidated with this
grievance. By decision dated July 20, 2020, I directed the Union to choose a
number of reference cases for determination. The other grievances were to be
held in abeyance pending determination of the reference cases. I also directed
that the evidence in chief for the reference cases would take the form of
declarations which might be subject to cross-examination. This is the decision
with respect to the reference cases advanced by the Union.
[3] The Union’s position is based upon the “common law” of privacy articulated by
arbitrators and the specific language of the parties’ collective agreement. In
particular, the Union relies upon Appendix COR10 which reads as follows:
Revised: January 24, 2013
Letter of Understanding
Surveillance in Correctional Workplaces
The parties agree to the following regarding use of surveillance and electronic
equipment in the workplaces:
Purpose
The purpose of electronic monitoring and surveillance of Correctional workplaces is for
the safety and security of staff, inmates and property of the respective ministry.
Information obtained may be used for protection against criminal acts such as theft,
depredation and damage to property.
Advisement
The Employer shall notify the Union of any increases in use of surveillance equipment.
In instances that the Employer is relying upon any type of electronic audio or video
recordings for discipline or investigative purposes, the Employer shall notify the Union
prior to holding a meeting with the employee for the purpose of investigation, that the
Employer is in possession of electronic audio or video recordings that will be used for
discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will
provide a copy of such recording to the Union, as soon as reasonably practical, upon
request.
-3-
The use of electronic monitoring/surveillance equipment is not to be used as a
replacement for supervising or managing; or as a means to evaluate employee
performance.
Any disputes regarding surveillance in a Correctional workplace by the Employer shall
be referred to the appropriate MERC for discussion and resolution.
[4] The Union’s position is that Appendix COR10 fetters the Employer’s use of
surveillance equipment in several ways. First, the Purpose Clause identifies the
specific purpose of the equipment: “for safety and security of staff, inmates and
property”. In order to achieve that purpose, Appendix COR10 then fetters the
Employer’s rights with respect to the information it obtains to use “for protection
against criminal acts such as theft, depredation and damage to property.” The
second last paragraph of Appendix COR10 further restricts the Employer’s use of
surveillance equipment by precluding its use for supervising or managing or
evaluation of employee performance. The Union asserts the Employer’s use of
surveillance equipment, or information obtained, has breached these restrictions,
as illustrated by the specific reference cases it has advanced.
[5] The Employer’s position is that while Appendix COR10 identifies purposes for
surveillance equipment, it does not say that surveillance equipment is to be used
exclusively for those purposes. Nor does it say that information obtained can only
be used “for protection against criminal acts such as theft, depredation and
damage to property”. With respect to supervising or managing employees,
Appendix COR10 only provides that surveillance equipment is not be used as a
replacement for supervising or managing employees: this does not preclude it from
being used for those purposes. The Employer asserts the examples advanced by
the Union do not breach Appendix COR10 or any other provision of the collective
agreement.
[6] The parties cited a number of authorities in support of their positions, all of which I
review below. The parties also provided detailed submissions with respect to their
differing interpretations of Appendix COR10. The parties disagreed with respect to
whether the Union had established a breach of the collective agreement in each of
the reference cases which it advanced.
[7] This dispute must be determined on the basis of the specific language of the
collective agreement between the parties. That language must be interpreted
within the legal context in which it was negotiated. Accordingly, I will commence
by reviewing the general principles which emerge from the cited authorities with
respect to the use of surveillance cameras in a workplace. I will then move on to
-4-
consider the specific language to which the parties agreed in Appendix COR10. I
will then apply the resulting principles to the reference cases advanced by the
Union and determine in relation to each whether or not the Union has established
a breach of the collective agreement.
[8] I note that neither party referred to any applicable employment related legislation.
Accordingly, my analysis contains no discussion of any such legislation.
[9] As a final preliminary point, I note that one of the reference cases advanced by the
Union related to a grievance which had been settled by the parties. Since the
purpose of this decision is to provide guidance with respect to the many other
outstanding grievances, the parties agreed that the Union might rely on that case
as a hypothetical example, but that I should anonymize its facts.
General Principles Applicable to Surveillance in the Workplace
[10] The Union argues several principles emerge from the case law. First, it is
generally accepted that employees have a general right to privacy in the
workplace. Second, that general right arises from the common law, legislation and
contract. Third, that privacy right applies to acts of surveillance, whether overt or
covert. The Union concedes that the surveillance at issue in this case is overt, and
overt surveillance is generally considered less offensive than covert surveillance.
Fourth, the right to privacy applies both within and external to the workplace. Fifth,
the right to privacy is influenced, but not controlled, by the Charter. Sixth, the right
to privacy is not absolute. Rather, it is measured by what is reasonable in the
specific circumstances of the case. Seventh, arbitrators generally balance the
competing interests at play: an employee’s right to privacy versus the employer’s
legitimate business interests. Eighth, there is a balancing which is done to
determine what is reasonable in circumstances. Ninth, each case has to be
decided on its unique facts and applicable contract. Tenth, surveillance may be
utilized to target theft, safety and security. The Union made reference to a number
of cases, all of which I discuss below.
[11] The Employer focused its argument on the proper interpretation of Appendix
COR10 and the facts of the specific representative cases before me.
Nonetheless, the Employer also made reference to several cases, all of which I
discuss below.
[12] The cases provided by the parties are not, as observed by the Union, precisely on
point. For the most part, they address the purposes which permit an employer to
-5-
use surveillance cameras and the admissibility of evidence obtained in fulfillment
of those purposes. Different “tests” are typically said to apply depending on
whether the surveillance was covert or overt. In the case before me, the
surveillance is overt. There is no dispute that the surveillance cameras are
required for safety and security purposes. Further, there is no dispute that
evidence obtained from the cameras may be used for safety and security purposes
related to specific incidents. The disputes relate to the use of the cameras for
other purposes, such as monitoring performance of employees, and the use of
evidence obtained during the investigation of specific incidents for purposes other
than the one which prompted the investigation. The analytical frameworks of the
cases provided are thus not directly applicable. In my view, however, there are
certain principles which may be extracted from those decisions which assist in a
restatement of the appropriate analytical framework. Further, that restated
analytical framework is helpful to the issues at hand.
The Case Law
[13] The Union refers to St. Mary’s Hospital and H.E.U., (1997) 64 LAC (4th) 382
(Larson). The award is from British Columbia (“BC”). Arbitrator Larson undertook
a survey of the privacy cases to date. Within the context of that review he made a
comment relied upon by the Union before me. At p. 391, Arbitrator Larson referred
to the decision of Arbitrator Burkett in Thibodeau-Finch Express, (1988), 32 LAC
(3d) 271, as the “leading case on the installation of electronic surveillance” and
stated in that case: “The arbitration board expressed a general view that a full-time
closed circuit television system, used to observe the work performance and
conduct of employees, must be seen as seriously offensive.”
[14] Arbitrator Larson suggested several principles emerged from his review of the
jurisprudence (p. 396 et. seq.). He distinguished cases involving bodily intrusions
upon the person from cases involving searches of a person’s belongings or
surveillance of the person. (I note that in doing so, Arbitrator Larson
foreshadowed the distinction made by the Ontario Court of Appeal in Jones v.
Tsige between personal privacy and territorial privacy, discussed further below.)
In Arbitrator Larson’s view, cases involving bodily intrusion engaged the law of
trespass and assault. Absent consent, such intrusion is prohibited (p. 397). There
is no balancing of the interests of the employer and the employee. By contrast
cases involving search of personal effects engage the right to privacy. Arbitrator
Larson stated (at p. 397): “while the right to privacy is considered to be
fundamental, the authorities are consistent that the right is not absolute and that it
may give way to the interests of the employer, in proper circumstances, where it is
-6-
determined to be necessary to secure its property and staff.” Arbitrator Larson
considered surveillance cases to be analogous to cases involving searches of
personal effects, stating (at p. 398): “The surveillance cases involve a true
measure of the right to privacy but it is important to understand that the right is
measured on a variable scale depending upon a number of factors.”
[15] Arbitrator Larson then considered three circumstances: “benign” surveillance for
the purposes of training; overt surveillance, “conducted in order to provide security
to both the employee and the employer”; and covert surveillance. It is Arbitrator
Larson’s comments on the second circumstance which are particularly germane to
the issues before me (p. 398):
Next are cases involving surveillance conducted in order to provide security to both the
employees and the employer. Security surveillance would typically involve open
electronic monitoring, The cameras are not hidden and will often be installed with the
implicit consent of the union. Where they are installed with the full knowledge of the
union, which does not then grieve the installation, the union would likely be taken to
have acquiesced in any infringement of privacy which is inherent in the installation.
On this analysis, one of the issues becomes whether the Union’s consent can be
implied. If so, then the Union “would likely be taken to have acquiesced in any
infringement of privacy which is inherent in the installation” (my emphasis). In my
view this analysis is problematic. Consent to surveillance for one purpose does
not constitute consent to surveillance for other purposes.
[16] At p. 399, Arbitrator Larson set out certain “tests” which in his view were to be
applied in balancing employees’ right to privacy with the employer’s interests in
cases of covert surveillance.
After having determined the type, purpose, place and frequency of hidden surveillance,
the balancing of interests involves the application of specific tests. The onus is on the
employer to justify the encroachment upon the employees’ right to privacy by
demonstrating that there is a substantial problem and that there is a strong probability
that surveillance will assist in solving the problem. The employer must demonstrate not
only that there is cause to initiate surveillance but that it is not in contravention of any
terms of the collective agreement: Re Thibodeau-Finch Express Inc.; it must show that it
has exhausted all available alternatives and that there is nothing else that can be
reasonably done in a less intrusive way; Re Algoma Steel Corp.; and finally, it must
ensure that the surveillance is conducted in a systematic and non-discriminatory
manner: Re Steels Industrial Products.
[17] It is of course axiomatic that an employer’s use of surveillance cannot violate any
specific term in a collective agreement. The issue is whether an employer’s use of
surveillance is otherwise subject to arbitral review and if so on what basis.
Arbitrator Larson’s tests arise from a survey of a large number of surveillance
-7-
cases. The jurisdictional basis for the review conducted by the arbitrators in those
cases is not always apparent from Arbitrator Larson’s reasons. Further, it may
well vary, since some of the cases arose in provinces with applicable privacy
legislation (of which BC is one) and some did not. In the case before me, for
reasons stated below, I find I have jurisdiction to review the Employer’s use of
surveillance on a reasonableness basis, involving the balancing of employer and
employee interests. For the purposes of conducting that balancing exercise,
unlike Arbitrator Larson, I do not find it useful to afford pre-eminence to a particular
factor without considering the specific circumstances of a case. The availability of
alternatives, for example, is a factor which will likely weigh heavily against an
employer’s use of surveillance, but it is part of the balancing exercise, not the end
of it.
[18] The Union relies upon Ebco Metal Finishing Ltd. and I.A.B.S.R. I., Shopmen’s Loc.
712, (2004) 134 LAC (4th) 372 (Blasina). This is another covert surveillance case
from BC. At issue was the admissibility of evidence obtained as a result of covert
surveillance. Arbitrator Blasina reviewed a great deal of case law and adopted a
balancing of interests test. Arbitrator Blasina held that where a balancing of
interests resulted in the conclusion that the employer’s actions were not
reasonable, the appropriate remedy was to exclude otherwise relevant evidence,
notwithstanding the fact that the evidence in question might be determinative in a
discharge case: see pp. 401- 403. I agree that an arbitrator has jurisdiction to
exclude such evidence in an appropriate case.
[19] In the course of his review of the caselaw, Arbitrator Blasina quoted at length from
a number of cases. The Union relies on a number of the quoted statements.
[20] At p. 383, Arbitrator Blasina quotes from Arbitrator Munroe’s decision in Pope &
Talbot Ltd. and P.P.W.C., Loc. 8, [2003] B.C.A.A.A. No. 362 (QL), 123 L.A.C. (4th)
114:
One begins with a clear appreciation that as between the employer and employee, the
latter’s reasonable expectations of privacy are not set aside simply by the entering into
the employment relationship; and further, that while the Canadian Charter of Rights and
Freedoms is not per se applicable to private sector disputes like this one, the values
embedded in the Charter do appropriately influence the development of our common law
and arbitral jurisprudence ….
….
I agree. Many cases could be cited for similar propositions. In my view, express
consideration of the extent and nature of the privacy interests of the employee is
-8-
consistent with the development of the law under the Charter and thus permits the
expression of Charter values in this area of arbitral jurisprudence. Having said
that, other than referring to Jones v. Tsige, discussed further below, the parties did
not address any relevant law under the Charter. Accordingly, I do not address that
issue further.
[21] At p. 384, Arbitrator Blasina continues to quote from Arbitrator Munroe, who in turn
is quoting from Arbitrator Kelleher’s decision in Unisource Canada Inc. v. CEP,
Loc. 433, (2003) 121 LAC (4th) 437:
In my view surreptitious surveillance can only be justified where: (i) there is a substantial
problem; (ii) there is a strong possibility that surveillance will be effective; and (iii) there
is no reasonable alternative to surreptitious surveillance.
The threshold is lower with respect to surveillance that is not surreptitious, i.e.,
announced to the employees affected. There is no blanket prohibition. Rather, the test
is whether the surveillance is a reasonable exercise of management rights in all of the
circumstances of the case.
The Union relies on this passage for the proposition that in order to be permissible,
overt surveillance must constitute a reasonable exercise of management rights.
[22] This passage raises several issues. The first is the source of an arbitrator’s
jurisdiction to review the exercise of management rights on a standard of objective
reasonableness. This jurisdictional question is complex, and not one on which the
parties joined issue before me. It suffices to say that the Employer did not
challenge the Union’s assertion that its actions in this case were subject to review
on a reasonableness standard. I find that they are subject to review on that basis,
but for the limited reasons stated below under my review of Lenworth Metal. It is
not necessary for me to consider whether there is broader jurisdiction to review the
Employer’s decision to make use of overt surveillance, and I decline to do so.
[23] The second issue raised by this passage, and indeed by many other arbitral
awards, is the suggestion that different analytical frameworks are applicable to
cases of covert and overt surveillance. I agree that in general an employer will
have to make out a stronger case for covert surveillance. I disagree, however,
with suggestions that different analytical frameworks apply. Rather, in my view the
analytical framework is the same: an employee’s reasonable expectation of
privacy is to be balanced against the legitimate interests of the employer. The
distinction between covert and overt surveillance arises from express
consideration of the nature of an employee’s expectation of privacy. In general, if
an individual is aware they are, or may be, subject to surveillance, the reasonable
-9-
expectation of privacy is lower. By contrast, if an individual has no reason to
believe they are or will be subject to surveillance, the reasonable expectation of
privacy is higher. The reasonableness of an individual’s belief requires
consideration of the circumstances. Employees in a workplace with overt
surveillance know they are subject to that surveillance. (The propriety of the
employer engaging in that surveillance is a separate issue.) Employees, however,
are not generally aware of covert surveillance. Further, it is reasonable for
employees to expect that they will not be subject to surveillance in private spaces
such as washrooms or their own homes.
[24] The Union cites pp. 386-7 of Ebco Metal for the proposition that, at least in relation
to covert surveillance, an employer must show that “such a course is the only one
open to it and the only way in which the truth can be ascertained”. In my view,
analysis of the interaction of reasonable expectation of privacy and legitimate
employer interests is not served by the proliferation of this, and other, rules. In
part this is because it spawns a bewildering array of exceptions and distinctions.
More fundamentally, however, it is because it diverts the arbitral inquiry from what
should lie at its heart: the balancing of an employee’s reasonable expectation of
privacy and an employer’s legitimate interests through consideration of what those
respective interests are in a particular context.
[25] The Union relies on statements at p. 391 and p. 393 of Ebco Metal for the
proposition that an employer cannot engage in covert surveillance “at its pleasure,
just to see what turned up.” I agree that where an employer’s use of surveillance
is subject to review on a reasonableness basis, the balancing of employer and
employee interests necessarily implies that an employer cannot engage in covert
surveillance “at its pleasure, just to see what turns up”. I would add that I do not
understand the Employer in this case to be asserting anything to the contrary.
[26] The Union relies on a statement at p. 392 of Ebco Metals for the proposition that
“video surveillance is not itself a management right, but rather a tool for the
supervision of employees or the physical environment”. I agree, but think this
adds little to the analysis where an employer’s use of surveillance is subject to
review on a reasonableness basis. The issue remains whether an employer’s use
of video surveillance for the purpose of supervision of employees or the physical
environment is reasonable in the circumstances.
[27] Both the Union and the Employer rely upon R.W.D.S.U. v. McKesson Canada
Corp., 2010 CarswellSask 787, [2010] S.L.A.A. No. 26, 104 C.L.A.S. 85, 201
L.A.C. (4th) 60 (Hood). This is an overt surveillance case from Saskatchewan. At
-10-
para. 41, the arbitrator made a statement upon which both the Union and the
Employer before me rely. Arbitrator Hood stated:
41 I am also satisfied there is an agreement between the Union and the Employer
that the video surveillance will be used for the security and protection of the Employer's
property and its employees. The evidence does not indicate there was any breach of this
agreement. The Union, at best, speculates that the cameras are used by supervisors to
monitor employee performance with a view to discipline, but there is no direct evidence
that such has occurred. The fact that supervisors may from time to time see employee
activity on the cameras does not, in and of itself, mean the agreement is breached. It is
inevitable that the cameras (especially those in the shipping/receiving area that are
doing their job to guard against intrusion and inventory disappearance at the overhead
doors) will pick up employee activity in the area, .…
[28] The Union relies upon the statement for the proposition that the parties can reach
an agreement limiting an employer’s right to make use of surveillance. This is not
in dispute. What is in dispute is the degree to which Appendix COR10 limits the
Employer’s right to engage in surveillance or make use of the information which it
produces, and whether any such limits have been contravened on the facts before
me. I return to those issues below.
[29] The Employer relies on the statement for the proposition that incidental viewing of
video surveillance does not constitute using the video for any particular purpose. I
agree with this proposition. Whether the fact that an employee’s privacy interests
are unreasonably impinged upon by such incidental viewing is, however, a
separate issue to which I return below.
[30] The Union relies upon Lenworth Metal Products Ltd. v. USWA, Local 3950, (1999),
80 LAC (4th) 426 (Armstrong), an Ontario decision. In that case, the union filed a
policy grievance with respect to the employer’s installation of overt surveillance
cameras at various locations within the workplace as well as certain external
locations. The award is addressed to a preliminary objection by the employer.
The employer argued that as no provision of the collective agreement was
engaged, the arbitrator lacked jurisdiction to deal with the grievance. I note that
because the case arose in Ontario, the BC privacy legislation was obviously not
applicable and there was no suggestion of any analogous Ontario legislation.
Arbitrator Armstrong engaged in an extensive review of jurisprudence. He
concluded there were three possible avenues for challenging the installation of
surveillance equipment under the collective agreement before him. First, the
introduction of surveillance equipment is tantamount to introducing a workplace
rule: that all employees must work under video surveillance. The management
rights clause of the specific collective agreement before him permitted the
employer to make “reasonable rules”. Accordingly, the introduction of surveillance
-11-
cameras was subject to challenge on the basis that it was not a reasonable rule.
Second, there is a general requirement that rules which might have disciplinary
consequences must be reasonable so that they are not at odds with the just cause
provisions of a collective agreement. Accordingly, the reasonableness of the rule
might be challenged on that basis as well. Third, Arbitrator Armstrong was of the
view that the exercise of management rights was subject to challenge on the basis
that it was not done for legitimate business interests. Arbitrator Armstrong opined
that the introduction of security cameras for the purpose of increasing security
would meet this standard.
[31] I agree with Arbitrator Armstrong’s conclusion that the installation and use of
surveillance equipment is tantamount to introducing a workplace rule, as
employees who refuse to work on the basis that they are under surveillance may
be subject to discipline. Further, as was the case before Arbitrator Armstrong, the
management rights clause of the collective agreement before me provides that
management may make “reasonable rules”. Put differently, the management
rights clause qualifies the Employer’s right to make rules with a reasonableness
requirement. In addition, because of the potential for disciplinary consequences,
the rule must be reasonable in order not to run afoul of the just cause provision of
the collective agreement. Accordingly, in my view, the Employer’s installation and
use of the surveillance cameras at its correctional facilities is subject to review on
the basis of reasonableness. That is sufficient for the purposes of the case before
me. I do not, therefore, find it necessary to address Arbitrator Armstrong’s third,
more general proposition: that the exercise of management rights is subject to
challenge on the basis that it was not done for legitimate business interests.
[32] The Union relies upon Prestressed Systems Inc. and Labourers’ International
Union of North America, Local 625, (2005), 137 LAC 4th 193 (Lynk), another
Ontario decision. At issue was the admissibility into evidence of a surveillance
video shot covertly in a public space outside of the workplace. Arbitrator Lynk
considered 15 years of jurisprudence. He found that even in the absence of a
statutory or collective agreement right, unionized employees have a “general legal
entitlement to privacy respecting the employment relationship” (at pp. 203-4):
The general right of an employee to some degree of privacy had been recognized by
arbitrators with sufficient regularity and volume in recent years to be now considered as
forming part of the “common law” of the unionized Ontario workplace. This entitlement is
not absolute, for it always must be weighed against the employer’s legitimate interests.
….
Employers are able to intrude upon these interests in two accepted ways. One way
would be through a contractual agreement between the union and an employer that
-12-
expressly limits an employee’s entitlement to personal privacy. Thus, the general right to
privacy can be contractually derogated by the parties, even beyond what might be
considered to be reasonable and appropriate in an industrial relations context, but
always subject to human rights obligations arising from statute. A second way would be
where, even in the absence of a specific collective agreement derogation, the employer
can demonstrate persuasive business and industrial reasons to justify an intrusion.
[33] Arbitrator Lynk noted that some arbitrators have disagreed with this approach and
taken the view that there is no general right by an employee to privacy, as no
source for such a right of privacy otherwise exists at common law or statute in
Ontario. Arbitrator Lynk rejected this criticism on the basis that the “common law”
of unionized workplaces provides the source of the right. I would note that to this it
can now be added that a common law right of privacy has since been recognized
by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 (CanLII), 108 OR
(3d) 241. There is, however, a separate question as to whether or not a dispute
about the breach of such privacy rights is in and of itself a “matter” over which an
arbitrator has jurisdiction (see, for example, Ontario Public Service Employees
Union (Andersen) v. Ontario (Ministry of Correctional Services), 2002 CanLII
45816 (ON GSB) (Brown)). Given that I have found that I have jurisdiction over
the matter before me for the reasons stated under Lenworth Metal, I need not, and
do not, address that question further.
[34] Commencing at p. 207 of his reasons, Arbitrator Lynk noted a debate between
arbitrators with respect to the admissibility of surveillance video. Some, he stated,
have applied a “relevancy test”: if the evidence is relevant, it is admissible. Some
have applied a stricter standard of admissibility, requiring an employer to meet a
“reasonableness test”. I would note this formulation of the debate is potentially
misleading, as the “reasonableness test” is not a substitute for a relevancy test,
rather it is an additional requirement for the admission of otherwise relevant
evidence which engages the privacy interests of an employee. The formulation of
the reasonableness test offered by Arbitrator Lynk was as follows (at pp. 210-11):
1. A ‘reasonableness’ test will examine: (i) whether the employer had a reasonable basis
to engage in covert surveillance; and (ii) whether the surveillance was conducted in a
reasonable manner.
2. Part of the inquiry will consider whether the employer had other reasonable
alternatives to employ before engaging in the covert surveillance. The employer will
not have to demonstrate that all other possibilities were exhausted before turning to
the surveillance, but, as a factor in considering the reasonableness of the
surveillance, it would have to explain why some readily available and less intrusive
methods could not have accomplished the same goal.
3. Reasonableness will be measured on an objective standard.
4. What is reasonable will depend on the context. This would normally include
considering such factors as: the basis of the employer’s suspicion of the employee;
-13-
the nature of the potential harm to the employer’s enterprise; the degree of
impairment to the trust factor; the alternatives available to obtain the required
information; and the degree of intrusion caused by the particular surveillance method.
[Emphasis in original.]
[35] The fourth part of Arbitrator Lynk’s test includes factors primarily addressed to
delineating the employer’s legitimate interests, in particular: “the basis of the
employer’s suspicion of the employee” and “the nature of the potential harm to the
employer’s enterprise”. Those factors are similar to those identified in other
awards which have focused on the nature of the employer’s interests. However,
unlike those awards, Arbitrator Lynk also sets out factors addressed to describing
the nature and extent of the employee’s privacy interest, in particular: “the degree
of intrusion caused by the particular surveillance method”; and “the degree of
impairment to the trust factor”, at least to the extent that “trust factor” includes the
employee’s trust of the employer. In my view, express consideration of the nature
and the extent of the employee’s privacy interests is part of the appropriate
analytical framework.
[36] Notably in Prestressed Systems, Arbitrator Lynk excluded otherwise relevant
evidence on the basis that the impingement of privacy interests was not justified
on the basis of the reasonableness test: see p. 216.
[37] The Union relies upon Kadant Carmanah Design and IAMAW, District 250, 2015
CarswellBC 3521, [2015] BCCAA No. 111, [2016] BCWLD 335, 125 CLAS 145,
266 LAC (4th) 119 (Lanyon). I found this award useful as it is more recent and
reviews arbitral jurisprudence from British Columbia, including St. Mary’s Hospital,
as well as from Ontario, and because it considers and quotes at length from the
Ontario Court of Appeal decision, Jones v. Tsige, which recognized the tort of
intrusion upon seclusion.
[38] Arbitrator Lanyon noted that a balancing of interests approach emerges from the
arbitral jurisprudence: the employee’s right to privacy is weighed against the
employer’s legitimate interests on a reasonableness standard. Within the context
of surveillance, he cited with approval (at para. 71) the following formulation of the
test stated in Brown & Beatty:
Where the reasonableness approach is taken, arbitrators assess first whether the
surveillance of an employee’s activity was reasonable, and secondly, whether the
surveillance was conducted in a reasonable manner proportional to the employer’s
legitimate interests.
-14-
[39] Commencing at para. 73 of his decision, Arbitrator Lanyon quoted from Jones v.
Tsige in which the Court of Appeal stated (at para. 43 of the Court’s reasons): “the
right to privacy has been accorded constitutional protection and should be
considered as a Charter value in the development of the common law of
defamation”; and (at para. 45): “While the Charter does not apply to common law
disputes between private individuals, the Supreme Court has acted on several
occasion to develop the common law in a manner that is consistent with Charter
values”. Arbitrator Lanyon then made the following observation:
74. The Court outlines three distinct privacy interests, including that of informational
privacy:
[41] Charter jurisprudence has recognized three distinct privacy interests:
Dyment, at pp. 428-29 S.C.R.; R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J.
No. 63, 2004 SCC 67, at paras. 19-23. The first two interests, personal privacy
and territorial privacy, are deeply rooted in the common law. Personal privacy,
grounded in the right to bodily integrity, protects "the right not to have our bodies
touched or explored to disclose objects or matters we wish to conceal". Territorial
privacy protects the home and other spaces where the individual enjoys a
reasonable expectation of privacy. The third category, informational privacy, is
the interest at stake in this appeal. In Tessling, Binnie J. described it, at para. 23:
Beyond our bodies and the places where we live and work, however, lies
the thorny question of how much information about ourselves and
activities we are entitled to shield from the curious eyes of the state (R. v.
S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60). This includes commercial
information locked in a safe kept in a restaurant owned by the accused
(R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16). Informational
privacy has been defined as "the claim of individuals, groups, or
institutions to determine for themselves when, how, and to what extent
information about them is communicated to others": A. F. Westin, Privacy
and Freedom (1970), at p. 7. Its protection is predicated on the
assumption that all information about a person is in a fundamental way
his own, for him to communicate or retain . . . as he sees fit.
(Report of a Task Force established jointly by Department of
Communications/Department of Justice, Privacy and Computers
(1972), at p. 13).
Arbitrator Lanyon does not, however, derive specific conclusions from his
consideration of Jones v. Tsige. At para. 78 he simply states:
It may be fairly stated that the “contours” of the balance between an employee’s right to
privacy and the Employer’s right to manage and protect its workplace is one that will
initially be developed in the arbitral forum; although ultimately that balance will be
determined by the Courts.
-15-
[40] In my view, the act of surveillance engages an employee’s territorial privacy
interests. The information obtained as a result of an undue intrusion upon an
employee’s territorial privacy interests may be excluded in order to provide a
meaningful remedy to the breach of those interests. While the information
obtained from that surveillance may also engage an employee’s informational
privacy interests, that issue was not argued before me. I would note only that the
nature of those interests is discussed in Association of Management,
Administrative and Professional Crown Employees of Ontario (Bhattacharya) v
Ontario (Government and Consumer Services), 2016 CanLII 17002 (ON GSB),
[2016] O.G.S.B.A. No. 29, 2016 CarswellOnt 5035, 126 C.L.A.S. 251, 269 L.A.C.
(4th) 33 (Anderson). Issues related to personal privacy are also not before me. I
note only that at least some arbitrators have expressed the view that the right to
personal privacy is absolute with the result that the balancing of interests
framework summarized below does not apply: see for example, the discussion in
St. Mary’s Hospital referenced above.
[41] Arbitrator Lanyon went on to consider the difference between overt and covert
surveillance. At para. 92 he summarized his conclusions. He expressed the view
that the “right to privacy remains the same in both circumstances; that is, an
employee’s right to privacy is balanced with the employer’s right to manage and
protect its workplace.” He continued:
However, I find that covert surveillance is a more egregious violation of privacy because
it is capable of causing more distress, anguish and embarrassment. This is because
privacy is an integral part of a person’s psychological integrity and personal identity.
Accordingly, covert surveillance requires a higher standard of reasonableness because it
is highly offensive to the reasonable person.
[42] I agree that the differential impact of overt and covert surveillance on the privacy
interests of the individual is a critical factor, if not the critical factor, in
understanding the different treatment of the two. I would, however, frame this
conclusion slightly differently. In my view, part of the balancing exercise requires
considering the nature and extent of the privacy interests of the individual which
are engaged in addition to considering the nature and extent of the employer’s
legitimate interests. It is not that there is a “higher standard of reasonableness”
which applies to the employer’s legitimate interests when the invasion of privacy is
more intrusive, rather it is that the employer will need to show more compelling
interests than it would were the invasion of privacy less intrusive.
[43] At para. 109, Arbitrator Lanyon made a comment which has some application to
the issue before me:
-16-
Further, there is the issue of potential discipline. The Employer stated expressly in its
notice to employees that the cameras will not be used for the purpose of disciplining
employees with respect to their “performance”. Mr. Macey testified that the cameras
have been used and will be used for the purpose of investigating safety incidents. I find
this consistent with the purpose of the installation of these cameras. I leave the
introduction of video surveillance evidence from these cameras with respect to other
issues of discipline to future arbitration boards.
[My emphasis.]
In making this statement, Arbitrator Lanyon recognized that it is at least arguable
that the evidence (i.e., information) obtained from surveillance cameras
legitimately installed for one purpose, may not be admissible if tendered for
another purpose.
[44] The Union relies upon Cascade Aerospace, Inc. and CAW-Canada, Local 114,
(2009) 186 LAC (4th) 26 (Blasina), another decision of Arbitrator Blasina, this time
arising from federal labour jurisdiction. At issue was the employer’s decision to
install a covert surveillance camera in the lunchroom of a security sensitive
workplace. The privacy rights said to be engaged arose from the federal Personal
Information Protection and Electronic Documents Act (“PIPEDA”). The employer
decided to install the covert surveillance because of recurrent vandalism and theft
from vending machines located in the lunchroom. Management did not actively
monitor the video feed, but reviewed it only when there was another incident of
vandalism or theft. As a result of information obtained from the camera, two
employees were terminated. This was the first the union learned of the covert
camera. A grievance filed on behalf of one of the discharged employees and a
union policy grievance were referred together to arbitration. The individual
grievance was settled. As part of the settlement, the employer agreed to remove
the covert camera. The arbitration award relates to the policy grievance. The
policy grievance alleged, inter alia, a breach of Article 8.01 of the collective
agreement. Article 8.01 was a management rights clause which provided in part
that it was the exclusive function of the employer to: “Make and enforce and alter
from time to time reasonable rules and regulations to be observed by the
employees”.
[45] Arbitrator Blasina applied a four part test which had been developed under
PIPEDA (see p. 59):
1. Is the measure demonstrably necessary to meet a specific need?
2. Is it likely to be effective in meeting that need?
3. Is the loss of privacy proportionate to the benefit gained?
4. Is there a less-privacy invasive way of achieving the same result?
-17-
He stated that he also was “mindful of the arbitral authorities which hold that
surreptitious video surveillance must be based on more compelling circumstances
than would overt surveillance” and at p. 59 made a comment upon which the
Union relies before me:
[V]ideo surveillance is not acceptable as an ordinary method for supervising employees
at work. The need for surveillance must be reasonable and sensitive to the balance of
interests of the employer and the person affected.
Returning to the four part test, Arbitrator Blasina stated:
Included in the first question, I would think, is not only whether the measure was
demonstrably necessary, but also whether the specific need itself was reasonable.
Arbitrator Blasina concluded the second test was met on the facts before him.
[46] Arbitrator Blasina addressed the third and fourth tests together. He noted that
“adjudicators have been keen to protect against incursion into a lunchroom” (p.
60). Later he noted that a lunchroom is “a location where one’s fellow employees
eat, and where they have every right to expect not to be watched” (p. 61).
Nonetheless, he concluded (at p. 61) that “given the necessity for surreptitious
surveillance, and the likelihood of it being effective, it would not seem improper to
locate a hidden camera in the lunchroom, provided measures were taken toward
limiting the scope of surveillance to the problem area, and no more.” Arbitrator
Blasina concluded the employer had not satisfied this proviso because “the
installer provided for a wider angle of coverage than necessary for monitoring the
vending machines”. This however, was a result of “carelessness, and no more” on
the part of the employer.
[47] At p. 62, Arbitrator Blasina stated:
Returning to the third and fourth questions, … I would conclude that the loss of privacy
was not proportionate to the benefit gained (third question), but only because the hidden
camera captured an area of the lunchroom beyond the vending machines. I would also
conclude that there was a simple and less privacy invasive way of achieving the same
end (fourth question), i.e. by limiting the scope of the camera to the vending machines.
Arbitrator Blasina concluded that the employer “thereby exceeded the due
application of its management rights and was therefore in breach of Article 8.01 of
the collective agreement.” Arbitrator Blasina granted only a declaration. He
declined to award damages. I note he also stated that “it should not now be
presumed that I would have declared the video evidence inadmissible for the
purposes of the discharge grievance had the Grievor’s case not been settled”. As
-18-
noted, the covert camera had already been removed. The award is silent as to
whether or not he would otherwise have ordered its removal or restricted its scope
of view.
[48] I am in general agreement with much of the approach adopted by Arbitrator
Blasina in Cascade. He articulated four factors to be considered in the balancing
of interests. He recognized that the balancing of interests was to be done in
relation to a “specific need”. He expressly discussed not only the employer’s
interests, but the employees’ expectations of privacy. He recognized a high
expectation of privacy existed in the circumstances before him. Notwithstanding,
he contemplated the possibility that expectation of privacy might yield to the
employer’s interests on a balancing of interests, and indeed concluded on the facts
before him that it should yield, albeit subject to a proviso which was not met. I
note that because the impugned surveillance camera had been removed,
Arbitrator Blasina’s award does not address whether the failure of the employer to
satisfy the proviso would have resulted in an order that the camera be removed or
an order that its scope of view be restricted. In my view, either remedy might have
been appropriate depending on further consideration of the circumstances of the
case.
[49] The Union relies upon William Neilson Dairy and Teamsters, Local 647, (2009)
182 LAC (4th) 403 (Howe), an Ontario arbitration award. At issue was the
decision to install additional overt surveillance cameras within the workplace
facility. The images could be viewed on a computer screen in a secure computer
room and on a terminal in the office of the production manager. The images were
stored digitally for 30 to 37 days until overwritten, and could be preserved longer
by downloading on to DVDs. The employer’s purpose for installing the cameras
related to the security and protection of its property from intruders and misconduct
by employees. The “bio-security” of the product was a particularly important
concern. The employer had accessed the recordings in response to specific
incidents, and the information recorded thereon resulted in the imposition of
discipline on at least one occasion.
[50] Arbitrator Howe applied Arbitrator Armstong’s reasoning in Lenworth Metal and
found that because the surveillance cameras gave rise to the potential for
disciplinary consequences he had jurisdiction to review that installation on a
reasonableness standard. In doing so he adopted a balancing of interests
approach: the problem which the employer was attempting to address was
balanced against an employee’s interest in not being constantly surveilled and not
having his or her image recorded. It is noteworthy that in this formulation Arbitrator
-19-
Howe identifies two separate interests of the employee, one related to the fact of
being subject to surveillance and the other related to the recording of his or her
image as a result of that surveillance. This distinction is reflected in the remainder
of Arbitrator Howe’s reasons.
[51] Arbitrator Howe concluded that the legitimate interests of the employer, including
the deterrence effect of the cameras, justified the installation of the cameras. He
then stated (at p. 410):
However, an order requiring some modifications to the existing system is warranted on
the basis of the countervailing interest which the employees represented by the Union
have in not being unduly surveilled and in not having their images recorded more
frequently or longer than necessary.
[52] Arbitrator Howe then made a series of specific orders requiring the employer to
change the field of view or reposition cameras so as to remove certain areas from
surveillance and reduce the amount of time that employees would be captured
with respect to other areas. Arbitrator Howe also stated (at p. 412):
As part of the aforementioned balancing exercise, it is also hereby ordered that images
obtained from the internal camera system only be used as a tool to investigate bio-
security threats or incidents, incidents of health and safety violations, and incidents of
culpable conduct, with no real-time monitoring of employees for any other purposes, and
no use of those images for the purposes of monitoring production, lateness, or
attendance.
That is, the employer was restricted to using the images obtained from the
cameras for the purposes which justified their installation in the first place.
[53] I turn now to the other cases referred to by the Employer.
[54] In R. v. March, 2006 ONCJ 62, 2006 CarswellOnt 1323, the accused was charged
with illegal possession of cannabis. The cannabis was found in his backpack
during a search at a correctional facility, at which he was then employed as a
correctional officer (“CO”). The accused sought the exclusion of the evidence on
the basis the search violated his rights under section 8 of the Charter. Section 8 of
the Charter provides: “Everyone has the right to be secure against unreasonable
search or seizure.”
[55] The court noted that the Supreme Court of Canada has held that section 8
protects reasonable expectations of privacy. It then stated:
-20-
63 The starting point in the section 8 analysis is the determination of the expectation
of privacy that a Ministry employee can reasonably expect while on the premises of a
correctional institution.
64 A correctional institution by its very nature is a place of heightened surveillance
and scrutiny. It is highly regulated. Security issues are paramount. Access to the
institution is strictly controlled for the safety and protection of inmates, visitors and staff.
….
68 The evidence adduced establishes that the problem of employee smuggling of
contraband into institutions is fairly widespread and that the presence of contraband is a
significant safety risk to inmates, correctional officers and visitors. Given the very nature
of their workplace, correctional institution employees must expect that their activities
within the institution will be subject to heightened scrutiny.
69 Employees of correctional institutions necessarily have a significantly reduced
expectation of privacy within the correctional institution. A correctional officer's
reasonable expectation of privacy in his or her personal property located on the
premises of the institution is also considerably diminished.
[56] This decision highlights that in a criminal law context expectations of privacy must
be objectively reasonable in the circumstances. In my view the same principle
applies in an arbitral context. I also agree with the specific conclusion that the
heightened surveillance and scrutiny inherent in correctional institutions means, on
an objective basis, that employees’ reasonable expectations of privacy must be
considerably diminished.
[57] The Employer cites Wire Rope Industries Ltd. v. U.S.W.A., Local 3910, 1982
CarswellBC 2620 (Chertkow) for the proposition that clear language is required to
limit management rights. At issue there was whether a provision in the collective
agreement which guaranteed an employee eight hours pay at their regular job,
provided that there were sufficient hours of work “available in the employee’s
regular job”, restricted the management right to determine whether there was work
available. Arbitrator Chertkow found the provision was not sufficiently clear to
restrict that management right. I would agree. In the case before me, as stated
above under my review of Lenworth Metal, the introduction of surveillance
cameras is tantamount to the introduction of a rule. The management rights
clause qualifies the Employer’s right to make rules with a reasonableness
requirement. Further, it is a rule with potential disciplinary consequences and
therefore must be reasonable in order not to run afoul of the just cause provision of
the collective agreement. In my view, this is sufficient clarity to qualify
management rights with respect to the introduction of surveillance cameras. This
right is further constrained by Appendix COR10, as I will discuss further below.
-21-
[58] The Employer cites Fraser Surrey Docks Ltd. v. I.L.W.U., Local 514, 2007
CarswellNat 2031 (Taylor), a decision of BC Arbitrator Taylor on a case within
federal labour jurisdiction. At issue was the admission of evidence from overt
surveillance cameras. The employer had an extensive overt video surveillance
system of the workplace (a dock area) which was justified by security concerns
and the particular regulatory regime under which it operated: see para. 169. The
employer had concerns about employees bringing garbage from home and
depositing that garbage in the employer’s bins and also concerns about theft of
gasoline from gas pumps located in the dock area. A particular employee became
a focus of those concerns and was ultimately fired for those reasons. His truck
had been observed entering the dock area with bags of garbage through a camera
trained on the entrance. Cameras were then used to track his movements. The
employer sought to introduce the images captured into evidence. The employer
had also repurposed one security camera to be permanently trained on the gas
pumps. While not specifically targeted at any employee, the camera had captured
images of the employee in question which the employer sought to introduce as
evidence in support of its allegation that the employee had stolen gasoline from
those pumps.
[59] Arbitrator Taylor appears to have concluded that there was an “arbitral test” in
relation to privacy which was essentially similar to that developed under PIPEDA,
and described by Arbitrator Taylor as a “context sensitive balancing of interests”:
see para. 168. Arbitrator Taylor noted that the issue before him was not whether
the employer was entitled to have its video surveillance system. Rather the issue
was whether the employer was justified in using its video surveillance system in
the manner that it did: see para. 170. He continued:
171 Where video surveillance is justified, it may record different types of misconduct
than the risk that justified the video surveillance in the first place: see e.g. PIPEDA Case
Summary No. 264 (February 19, 2004); X v. Y, supra. An employer is not required to
overlook video evidence of employee misconduct merely because it is captured on a
security video. In the case at hand, however, the instances of alleged employee
misconduct were not just captured incidentally. In each instance, there was a decision
made to alter the course of a camera in order to capture employee misconduct, thereby
collecting more (or at least different) information than would otherwise have been
collected. .…
172 [T]he decisions to alter the course of the cameras to collect new information
relating to employee misconduct do, in my view, give rise to a requirement to justify each
such instance of surveillance. The Employer's submissions recognize that requirement.
Nonetheless, that assessment must be informed by the relevant context. In particular,
employees were aware the site was under video surveillance. The entrances were under
regular video surveillance for security purposes, and the gas pumps were in an open
area of the site (under periodic video surveillance). In neither location would employees
-22-
have a reasonable expectation of privacy and, in particular, a reasonable expectation of
being free from video surveillance.
173 The inquiry into available alternatives is also one that is informed by the
particular context. In other words, the fact that the Employer already had a video
surveillance system which covered both locations - and which was known to employees
-is a relevant consideration. As well, under arbitral jurisprudence, an employer is not
required to exhaust available alternatives without regard to their reasonableness: see
e.g. X v. Y, para.42. That is also the case under PIPEDA, as the statutory requirement
is, itself, a test of reasonableness.
[Emphasis added.]
In my view, Arbitrator Taylor’s express consideration of whether the expectation of
privacy was reasonable within the specific circumstances is analytically helpful. I
also agree with Arbitrator Taylor’s observation that “an employer is not required to
exhaust available alternatives without regard to their reasonableness”.
[60] I note the Employer relies upon Arbitrator Taylor’s statements at paras. 175-177
for the proposition that “security and employee misconduct are not necessarily
watertight compartments”. In my view, what is of more significance is Arbitrator
Taylor’s reasoning in making that observation. His observation was based on
specific circumstances before him. Given, among other things, the employer’s use
of cameras for security purposes, Arbitrator Taylor concluded that the employee
could not have had a reasonable expectation of privacy with respect to the
misconduct in which he engaged. Arbitrator Taylor stated:
175 I begin with the March 25 video, in which the Grievor's truck was "followed" by
camera after it was observed entering the site with garbage bags in the back. This
instance illustrates that security and employee misconduct are not necessarily watertight
compartments. The entrances to the site are routinely monitored for security purposes.
That is how the Grievor's truck was initially noticed. In addition, the Employer's security
requirements include monitoring what is brought onto the site. The Grievor, driving onto
a secure dock facility under 24-hour video surveillance with garbage bags in the back of
his pickup truck, could not possibly have a reasonable expectation of privacy in doing so.
176 Indeed, the Grievor had already been spoken to more than once by the Employer
about violating company policy by bringing garbage onto the dock. The notion that the
Employer might be monitoring this activity could hardly be unexpected. The Union, in
argument, endeavors to use to its advantage the fact that the Grievor had already been
spoken to about this activity, arguing other alternatives to video surveillance were
available, such as disciplining the Grievor or revoking his dock parking privilege. I accept
Mr. Scott's explanation for taking a more discretionary, less extreme approach.
177 I conclude the March 25 video meets the arbitral and PIPEDA tests and is
admissible.
[Emphasis added.]
-23-
In other words, the reason security and employee misconduct are not watertight
compartments is because an employee who is aware that he or she is subject to
surveillance for security reasons cannot reasonably expect that misconduct
discovered in the course of that surveillance will be ignored.
[61] The Employer relies upon Canadian National Railway v. Teamsters Canada Rail
Conference, 2010 CarswellNat 6025 (M. Picher). In this award, Arbitrator Picher
cited para. 171 of the decision of Arbitrator Taylor in Fraser Surrey Docks and
stated:
6. In the Arbitrator's view the facts reviewed above fall well within the principle
enunciated by Arbitrator Taylor. The incidental observation of an unsafe practice is not
inadmissible at arbitration merely because it was observed on a video screen which was
in fact being used for another purpose. While the argument made by the Union would be
compelling if it could be established that the trainmaster's sole purpose in observing the
location of the grievor's work was to evaluate him for the purposes of possible discipline,
that is clearly not what transpired in fact.
[Emphasis added.]
I agree with these comments. It does not follow that incidental observation of
misconduct on a video being used for another purpose is always admissible.
Rather, in my view, the admissibility of such evidence must be determined on a
balancing of interests having regard to the circumstances of each case.
Summary and Conclusions as to Legal Context
[62] I would summarize my conclusions as to the legal context as follows.
[63] Individuals have three distinct privacy interests: personal privacy, territorial privacy
and informational privacy (Jones v. Tsige). Personal privacy is “the right not to
have our bodies touched or explored to disclose objects or matters we wish to
conceal”. Territorial privacy protects “the home and other spaces where the
individual enjoys a reasonable expectation of privacy”. Informational privacy is the
right to determine “when, how and to what extent” information about one’s self is
communicated to others. While the privacy interests are analytically distinct, they
may overlap in any given situation.
[64] Surveillance engages an individual’s territorial privacy interests. While the
information obtained from that surveillance may also engage an individual’s
informational privacy interests, that issue was not argued before me and, other
than my brief comments above, I do not address it. Issues related to personal
-24-
privacy are also not before me and again, other than my brief comments above, I
do not address them.
[65] The first issue is that of arbitral jurisdiction to review the Employer’s decision to
use surveillance cameras and the standard to be applied in conducting that review.
The installation and use of surveillance equipment is tantamount to introducing a
workplace rule, as employees who refuse to work on the basis that they are under
surveillance may be subject to discipline (Lenworth Metal). The rule must,
therefore, be reasonable in order not to run afoul of the just cause provision of the
collective agreement. Further, the management rights clause of the collective
agreement before me provides that management may make “reasonable rules”.
Put differently, the management rights clause qualifies the Employer’s right to
make rules with a reasonableness requirement (Lenworth Metal). Accordingly, the
Employer’s installation and use of the surveillance cameras at its correctional
facilities is subject to arbitral review on a standard of reasonableness. To be clear,
I do not decide whether or not there are other sources of arbitral jurisdiction
(including that which might arise from any employment related statute), nor do I
decide the standard of review which would apply to any other source of arbitral
jurisdiction.
[66] The second issue is the analytical framework to be applied in conducting the
review of the Employer’s installation and use of the surveillance cameras at its
correctional facilities. For reasons stated above, I reject the approach of separate
tests for covert and overt surveillance. Rather, in my view the difference between
covert and overt surveillance may be captured in a single test which gives more
express consideration to the nature of employees’ privacy interests and the greater
impact of covert surveillance on those interests.
[67] An individual’s privacy interests continue to exist within the employment
relationship. Privacy interests, however, are a matter of reasonable expectations.
Within an employment context, an individual’s privacy interests are balanced
against and may be outweighed by the employer’s legitimate interests.
[68] Each of being under the gaze of surveillance cameras, being monitored through
those surveillance cameras and the use of information arising from the
surveillance cameras engages privacy interests. A separate balancing exercise
may be warranted in relation to each in a given case. Both monitoring through
watching live video feed and monitoring through review of recorded video engage
privacy interests. Incidental viewing of an individual through live or recorded video
feed does not constitute monitoring that individual.
-25-
[69] Factors to be considered in assessing an employer’s interests include:
1. the specific nature of the interest, including whether it engages legitimate business
interests of the employer;
2. whether surveillance is done in good faith in furtherance of that interest; and
3. whether intrusion upon privacy is reasonably necessary to meet that interest.
[70] With respect to the nature of the employer’s interest, some interests have been
given greater weight by arbitrators than others. Without in any way meaning to be
exhaustive, investigation or prevention of culpable misconduct and safety and
security have typically been assigned high weight; management and monitoring of
performance have typically been assigned low weight.
[71] To ask whether the intrusion upon privacy is “necessary”, means that it must be
more than merely helpful. To ask whether it is “reasonably” necessary includes
consideration of the specific means used and the factors which went into the
employer’s choice of those means and may also include consideration of the
availability of less intrusive means. I align myself with those arbitrators who reject
requirements that the employer have considered or tried all other less intrusive
means first (e.g. Kelleher in Unisource; Taylor in Fraser Surrey Docks). Such
requirements are inconsistent with the balancing exercise. They would mean, for
example, that an employer would always be precluded from relying upon the
results of surveillance if it failed to prove that there were no less intrusive means,
even if the employer had a compelling reason for engaging in the surveillance, the
employee had little reasonable expectation of privacy in the circumstances and the
intrusion upon the employee’s privacy was minimal.
[72] An employee has a direct interest in the fact that they are subject to surveillance.
Arbitral case law recognizes, if not always expressly, an expectation on the part of
employees that they will not be subject to: covert surveillance (Kadant); continuous
overt surveillance within production areas of the workplace (Thibodeau-Finch
Express as cited in St. Mary’s Hospital); surveillance while in areas dedicated to
personal as opposed to work related functions such as lunchrooms (Cascade) or
washrooms within the workplace or their own private residence. This list is not
intended to be exhaustive.
[73] Only expectations of privacy which are objectively reasonable in the circumstances
are protected (Fraser Surrey Docks). In general, if an individual is aware they are,
or may be, subject to surveillance, the reasonable expectation of privacy is lower.
By contrast, if an individual has no reason to believe they are or will be subject to
-26-
surveillance, the reasonable expectation of privacy is higher. The reasonableness
of an individual’s belief requires consideration of the circumstances. Employees in
a workplace with overt surveillance know they are subject to that surveillance.
(The propriety of the employer engaging in that surveillance is a separate issue.).
Employees, however, are not generally aware of covert surveillance. Further, it is
reasonable for employees to expect that they will not be subject to surveillance in
private spaces such as lunchrooms, washrooms or their own homes.
[74] The balancing exercise requires consideration of the factors relevant to both the
employer’s interests and the employees’ interests. The employer must
demonstrate that the interests it seeks to advance through surveillance are
proportionate to the intrusion upon employee privacy interests which would result.
The balancing exercise is, by its nature, specific: a particular employer interest is
balanced against the employee privacy interest. Surveillance or uses of
information arising from that surveillance which is justifiable for one purpose is not
thereby justifiable for all purposes. Having said that, the fact employees know
surveillance is taking place for one purpose is a factor to be considered in
assessing the reasonableness of an employee’s expectation of privacy in relation
to the use of information incidentally obtained as a result of that surveillance for
another purpose.
[75] It follows that there is a distinction between the purposes which make surveillance
permissible and the uses to which the information obtained may be put.
Surveillance for a particular purpose contemplates use of the information obtained
for that purpose. It does not, however, necessarily preclude the incidental use of
that information for other purposes.
[76] Since compliance with the just cause provision is at issue, the onus of proof lies
upon the Employer. Having said that, in the same way that an employer is entitled
to require a union to first prove that the employer took disciplinary action against
an employee before the employer must establish it had just cause for that
discipline, so too may an employer require a union to first prove that employees’
privacy interests were engaged by surveillance before the employer is required to
prove the reasonableness of that surveillance.
[77] Where, on a balancing of interests, an employee’s reasonable privacy interests
prevail, an arbitrator may grant an appropriate remedy including:
(i) directions as to the placement, orientation or field of view of surveillance
cameras;
-27-
(ii) orders with respect to the retention and use of information obtained as a
result of surveillance; or
(iii) exclusion of otherwise relevant evidence from arbitration proceedings.
Interpretation of Appendix COR10
[78] Against this legal context, I turn to the proper interpretation of Appendix COR10.
[79] The Union notes that Appendix COR10, to which the parties agreed on January
24, 2013, was a revision of Appendix COR11, which was a Letter of
Understanding dated March 12, 2009. Appendix COR11 read:
March 12, 2009
Surveillance in Correctional Institutions
Letter of Understanding
The parties agree that the Employer shall notify the Union of any increases in use of
surveillance equipment. In instances where the Employer is relying upon any type of
electronic audio or video recordings for discipline or investigative purposes, the
Employer shall notify the Union prior to holding a meeting with the employee for the
purpose of investigation, that the Employer is in possession of electronic audio or video
recordings that will be used for discipline or investigative purposes. Prior to a disciplinary
meeting, the Employer will provide a copy of such recording to the Union, as soon as
reasonably practical, upon request.
Any disputes regarding surveillance in a Correctional Institution shall be referred to
MERC for discussion and resolution.
[80] For ease of reference, I set out Appendix COR10 again. In doing so, I italicize the
principle differences between Appendix COR10 and Appendix COR11:
Revised: January 24, 2013
Letter of Understanding
Surveillance in Correctional Workplaces
The parties agree to the following regarding use of surveillance and electronic
equipment in the workplaces:
Purpose
The purpose of electronic monitoring and surveillance of Correctional workplaces is for
the safety and security of staff, inmates and property of the respective ministry.
Information obtained may be used for protection against criminal acts such as theft,
depredation and damage to property.
-28-
Advisement
The Employer shall notify the Union of any increases in use of surveillance equipment.
In instances that the Employer is relying upon any type of electronic audio or video
recordings for discipline or investigative purposes, the Employer shall notify the Union
prior to holding a meeting with the employee for the purpose of investigation, that the
Employer is in possession of electronic audio or video recordings that will be used for
discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will
provide a copy of such recording to the Union, as soon as reasonably practical, upon
request.
The use of electronic monitoring/surveillance equipment is not to be used as a
replacement for supervising or managing; or as a means to evaluate employee
performance.
Any disputes regarding surveillance in a Correctional workplace by the Employer shall
be referred to the appropriate MERC for discussion and resolution.
[81] The Union notes that Appendix COR11 essentially provided that the Union would
be given notice of certain things and production of certain things. The Union
argues that by replacing Appendix COR11 with Appendix COR10, the parties were
agreeing to an expanded scope of rights. The Union notes that while Appendix
COR11 was headed “Surveillance in Correctional Institutions”, Appendix COR10 is
headed “Surveillance in Correctional Workplaces”. The Union argues that this
“sets the tone” for further changes in the text of Appendix COR10.
[82] In addition to the notice and production requirements which had been contained in
Appendix COR11, the Union argues that Appendix COR10 fetters the Employer’s
use of surveillance equipment in several ways. First, the Purpose Clause
identifies the specific purpose of the equipment: “for safety and security of staff,
inmates and property”. In order to achieve that purpose, Appendix COR10 then
fetters the Employer’s rights with respect to the information it obtains to use “for
protection against criminal acts such as theft, depredation and damage to
property.” The Union does not object to this use of information by the Employer
and indeed the Union’s view is that information obtained from surveillance should
be used for that purpose. The second last paragraph of Appendix COR10, which
the Union described in its opening as being added “just for clarity”, further restricts
the Employer’s use of surveillance equipment. It provides in part that surveillance
equipment is not to be used as a replacement for three things: supervision of
members, the employees of the workplace; as a method of managing OR
supervising the employees of the workplace; as a “means” to evaluate employee
performance. “Means”, in law, refers to any course of action. The Union asserts
the Employer’s use of surveillance equipment, or information obtained, has
-29-
breached these restrictions, as illustrated by the specific reference cases it has
advanced.
[83] The Employer’s response is that while Appendix COR10 identifies purposes for
surveillance equipment, it does not say that surveillance equipment is to be used
only for those purposes. Nor does it say that information obtained can only be
used “for protection against criminal acts such as theft, depredation and damage
to property”. Those are only examples of the uses to which information obtained
may be used. The Employer is not required to turn a blind eye to other
misconduct, and indeed is required to act if it is discovered. With respect to
supervising or managing employees, Appendix COR10 only provides that
surveillance equipment is not to be used as a “replacement” for supervising or
managing employees. The Employer argues that means surveillance cannot be
used “instead of” supervising or managing. The Employer argues that surveillance
is not being used instead of supervision of management, but rather to
“supplement” it. Surveillance is simply “one of the tools in the tool box” which the
Employer uses for that purpose. The restriction on use of surveillance as a means
of evaluating employee performance relates to “performance writ large”. It does
not preclude “spot checks”. In this respect, the Employer notes, at least with
respect to the reference cases, that no employee was subject to discipline as a
result of any such spot checks. The Employer asserts the reference cases
advanced by the Union do not constitute breaches of Appendix COR10 or any
other provision of the collective agreement.
[84] In reply, the Union argues that there is no need for Appendix COR10 to state the
“only” purpose of electronic monitoring and surveillance of Correctional workplaces
is for the safety and security of staff, inmates and property of the respective
ministry, because Appendix COR10 states that is “the” purpose. With respect to
the uses of surveillance, the Union argues that interpreting the prohibition on the
use of surveillance as a “replacement” for supervising and managing employees
as permitting the Employer to use surveillance as a “supplement” would render the
restriction meaningless as the Employer could always say that it was simply
“supplementing” its supervision and managerial functions. The Union rejects the
proposition that the restriction on the use of surveillance “as a means to evaluate
employee performance” applies only to “performance writ large”. There is no such
limitation of the restriction in Appendix COR10.
[85] In my view, interpretation of Appendix COR10 must begin by recognizing the
distinction discussed above in my review of the legal context between the purpose
which permits surveillance to be undertaken and the information obtained as a
-30-
result of that surveillance. Surveillance for a particular purpose contemplates use
of the information obtained for that purpose. It does not, however, necessarily
preclude the incidental use of that information for other purposes.
[86] Appendix COR10 expressly states the purpose for which surveillance may be
used:
The purpose of electronic monitoring and surveillance of Correctional workplaces is for
the safety and security of staff, inmates and property of the respective ministry.
[87] I reject the Employer’s argument that this statement does not constitute an
agreement limiting the use of surveillance to that purpose for two reasons.
[88] First, the Employer has the right to engage in surveillance for safety and security
of staff, inmates and property at its correctional facilities without the agreement of
the Union. It is clear from the cases that employers in general may engage in
surveillance for the purpose of legitimate safety and security concerns (see e.g. St.
Mary’s Hospital). Further, the right of this Employer to engage in surveillance of its
correctional facilities for safety and security reasons has been specifically and
expressly recognized in the case law (see R. v. March), if it is not in fact obliged to
do so by legislation (I was not directed to any applicable legislation). This is part of
the context within which I must interpret the parties’ agreement to include the
sentence stating the purpose of surveillance.
[89] Second, as argued by the Union, the sentence used by the parties refers to “the”
purpose for which surveillance may be undertaken. There is no need to indicate
that is the “only” purpose for which surveillance may be undertaken in order to
restrict surveillance to that purpose, as argued by the Employer. English has two
articles: “the” and “a/an”. “The” is definite and is used to refer to specific or
particular nouns. “A/An” is indefinite and is used to modify non-specific or non-
particular nouns. The parties have agreed that surveillance may be undertaken for
the specific purpose described. They did not, in some manner, qualify that
agreement to permit it to be undertaken for other purposes.
[90] I turn now to the uses to which the information obtained from the surveillance may
be put by the Employer as described by Appendix COR10. The parties have
expressly agreed in the paragraph referencing the purpose of surveillance that:
Information obtained may be used for protection against criminal acts such as theft,
depredation and damage to property.
They have also expressly agreed later in Appendix COR10 that:
-31-
The use of electronic monitoring/surveillance equipment is not to be used as a
replacement for supervising or managing; or as a means to evaluate employee
performance.
In the next several paragraphs, I shall refer to these statements with respect to use
as the first statement and the second statement respectively.
[91] The Union argues the first statement serves to fetter the Employer’s use of
information obtained from surveillance to only “protection against criminal acts
such as theft, depredation and damage to property”. I disagree for two reasons.
[92] First, that interpretation would render the second statement unnecessary: it is not
necessary to state that surveillance “is not to be used as a replacement for
supervising or managing; or as a means to evaluate employee performance” if the
information obtained from surveillance may only only be used for “protection
against criminal acts such as theft, depredation and damage to property”.
[93] Second, the first statement is permissive. It does not say the stated uses are “the”
uses for which the information obtained may be used, nor does it say that the
stated uses are the “only” uses for which the information obtained may be used. It
simply says the information “may” be used for the stated uses.
[94] In my view, therefore, provided the surveillance was conducted for the purpose of
“the safety and security of staff, inmates and property of the respective ministry”,
the first statement does not preclude the Employer from making use of information
obtained for other incidental purposes. The ability of the Employer to do so is
subject to the restrictions to which the parties have expressly agreed, set out in the
second statement. It is also otherwise subject to a balancing of interests, as
discussed further below.
[95] What then is the scope of the restrictions imposed by the second statement? That
statement has two parts, separated by a semi-colon. The first part states
surveillance is “not to be used as a replacement for supervising or managing”.
The second part states surveillance is “not to be used … as a means to evaluate
employee performance”.
[96] The second part is restrictive. It prohibits the use of surveillance as “a means” to
evaluate performance. This precludes the use of information obtained from
surveillance for that purpose, full stop. The first part, by contrast, is more
permissive. It only prohibits the use of surveillance as a “replacement” for
supervising or managing.
-32-
[97] A particular challenge in a correctional setting is that employee conduct which
might, in another setting, be seen as simply a matter of managing, supervising or
evaluating employee performance, may also relate to the safety and security of the
institution. Thus, for example, the use of a personal cellphone at work may affect
productivity in many workplaces, including corrections. That is a performance
issue. In a correctional workplace, however, use of a cellphone in a secure area
may also pose safety and security issues for a number of reasons, including that
the employee may be distracted from his or her duties while using the cellphone
and that the cellphone, if misplaced or stolen, could become a highly desirable
piece of contraband among inmates. For this reason, the Ministry of Solicitor
General’s Institutional Services Policy and Procedures Manual (“ISPPM”) provides
in part:
To ensure the security of the correctional institutions and the safety of all persons,
Correctional Services prohibits the use of personal electronic devices within the secure
areas of correctional institutions.
(The ISPPM goes on to outline exceptions to this general prohibition. Those
exceptions are not relevant for present purposes.)
[98] The issue before me, however, is not whether the Employer may, for example,
prohibit the use of cellphones within the secure areas of a correctional institution.
The issue before me is the impact of Appendix COR10 on the Employer’s ability to
use surveillance to enforce that prohibition. In addressing that issue, the first and
second statements in Appendix COR10 with respect to use of information obtained
from surveillance must be considered within the context of the purpose of
surveillance specified by Appendix COR10. Thus, for example, surveillance of
employees for the use of cellphones may have a dual purpose: the safety and
security of the institution and monitoring the performance of work by the
employees. The question will be what is the predominant purpose of the
surveillance. If the predominant purpose was safety and security, then the
surveillance may be permitted by Appendix COR10 and the information obtained
used for monitoring performance, subject to the restrictions in Appendix COR10. If
the predominant purpose was monitoring of performance, then the surveillance is
precluded by Appendix COR10.
[99] In understanding where the line is drawn between the two, some guidance is
provided by the first statement in Appendix COR10 as to use of information
obtained from surveillance, which I note forms part of the paragraph under the
heading “Purpose”. For ease of reference I set it out again:
-33-
Information obtained may be used for protection against criminal acts such as theft,
depredation and damage to property.
So, for example, if the Employer had reasonable grounds to believe that a CO was
using his or her cellphone within a secure area to engage in a criminal act “such as
theft, depredation and damage to property”, the predominant purpose of
surveillance of that CO for the use of a cellphone during the performance of duties
in that secure area might be considered to be “the safety and security of staff,
inmates and property” of the institution. On the other hand, if the Employer simply
was seeking to determine if any CO was using his or her cellphone in a secure
area, then the predominant purpose might be considered to be the monitoring of
performance. I hasten to add that these examples, stripped as they are of all other
facts, are meant to be illustrative only. The actual determination in a particular
case would require consideration of all relevant facts.
[100] Finally, apart from the restrictions to which the parties have expressly agreed in
the second statement of Appendix COR10, the Employer’s use of information
obtained incidental to surveillance conducted for the purpose of “the safety and
security of staff, inmates and property of the respective ministry” is subject to the
balancing of interests test. As noted above, this balancing exercise is fact specific.
[101] Having said that, a common fact for employees in the correctional workplaces to
which Appendix COR10 applies is that they are aware that surveillance is taking
place for the purpose of safety and security. Further, employees in a correctional
workplace know, or ought to know, that the surveillance feed or recordings are
subject to review for certain purposes, including investigating certain incidents of
assault and live security episodes. This weighs heavily in the assessment of the
objective reasonableness of employees’ expectations of privacy in the reference
cases before me.
[102] I turn now to the reference cases.
The Reference Cases
[103] I agree with the Employer that the reference cases can be usefully discussed in
three groups (or, as the Employer would have it, “buckets”).
CSOI Investigations Into Incidents Resulting in Discipline Unrelated to Incident
[104] The first group are reference cases involving discipline imposed as a result of
information discovered in the course of investigations conducted by the
-34-
Correctional Services Oversight & Investigations unit (“CSOI”) of the Employer.
That information was included in the report prepared by CSOI with respect to the
results of its investigation. CSOI Investigations fall into two categories, Level 1
and Level 2, with Level 1 applying to more serious incidents. All of the reference
cases provided in this group arose from Level 1 investigations.
[105] In the case of CO Shohannah Smith, a page was sent to COs on duty at the
Ottawa-Carleton Detention Centre (“OCDC”) at approximately 1:00 AM on June
27, 2020, indicating that an inmate was in distress. CO Smith was on duty at the
time and responded to the page. She was one of several COs who applied
compression to the inmate, but unfortunately these efforts proved unsuccessful
and the inmate died at approximately 1:30 AM. An investigation by
“management”1 surrounding the circumstances of the inmate’s death was
conducted. During the course of the investigation, video surveillance tapes were
reviewed. That review revealed CO Smith was on her personal cellphone at the
time the initial page for assistance was received. CO Smith was directed by the
Employer to write an occurrence report in relation to her use of her cellphone. She
ultimately received a verbal warning in relation to her use of her cellphone. CO
Smith’s uncontested evidence was that when she received the page, she
immediately put her cellphone away and that her use of her cellphone was
unrelated to the death of the inmate.
[106] In the case of CO Delanie Linton, the “nature of investigation” as stated in the
CSOI report was to “investigate the circumstances leading up to and including the
assault on” an inmate at Toronto South Detention Centre (“TSDC”) on May 2,
2019. CO Linton was not on duty at the time of the assault. Video footage for 24
hours prior to the actual assault was reviewed by CSOI in the course of the
investigation. It appeared to show CO Linton using her cellphone and utilizing a
computer to watch a movie, both of which were recorded in the CSOI report
provided to TSDC. TSDC issued a notice of allegation meeting to CO Linton with
respect to her use of a personal electronic device in a secure area of the institution
without authorization. (The allegation meeting took place just before CO Linton
completed her declaration and the discipline, if any, issued as a result was not
1 While there was no evidence directly on point, I infer from the evidence of Gary Rainford, an inspector
with CSOI, that the investigation, review of surveillance tapes and consequent identification of CO Smith
using her cellphone while on duty at OCDC were all done by CSOI. I reach this conclusion based on
Inspector Rainford’s evidence that an investigation into incidents involving death of an inmate would be
conducted by an investigator of CSOI. In any event, on the evidence before me there would be no
material difference based on whether the investigation was conducted by the management of OCDC or
CSOI.
-35-
before me.). CO Linton’s uncontested evidence was that her use of her cellphone
was unrelated to the assault on the inmate.
[107] The last set of reference cases in this group all arose from a CSOI investigation of
an incident involving the death of an inmate at an institution I shall refer to as “Y”.
The "nature of the investigation” as stated in the CSOI report was to “investigate
the circumstances surrounding the sudden death” of the inmate. In the course of
the investigation, CSOI obtained and reviewed surveillance video for the two days
prior to the death of the inmate. In the CSOI Report, the investigator noted
(among other things) that the surveillance video appeared to show one or more
COs: using a personal cellphone in a secure area of the institution; failing to stop
an inmate from exercising with “repurposed” clothing and failing to confiscate that
clothing as contraband; and failing to conduct security patrols of inmate occupied
areas at least twice per hour over a period spanning just over an hour. With
respect to the last two of these (inmate exercising with repurposed clothing and
failure to conduct security patrols at least twice per hour), the CSOI Report also
indicated the CSOI investigator reviewed the logs to see if the inmate activity or
missed rounds were recorded or reported. The CSOI Report indicated that they
were not. In cross-examination, the CSOI investigator agreed that his Report was
“based on review of actions, performance, behaviour of staff in the performance of
their duties”.
[108] There are some commonalities in the facts of reference cases provided by the
Union in this group. There was a serious incident at a correctional institution,
involving assault or death of an inmate in custody. CSOI was called in to
investigate the circumstances surrounding the incident. There is no dispute as to
the propriety of CSOI doing so. As part of the investigation, a CSOI investigator
reviewed recorded surveillance video for the time period leading up to the incident.
In the course of that review, the CSOI investigator observed apparent misconduct
on the part of a CO. The misconduct was unrelated to the incident which gave rise
to the investigation in the first place. CSOI identified and described the apparent
misconduct in the report prepared in relation to the investigation. A copy of the
report is given to the institution. An allegation meeting was held by the
management of the institution with the CO in question during which the CO was
asked to provide any explanation. Subsequently, the CO was disciplined by the
institution in relation to that misconduct (although in the case of CO Linton, there
was, for the reasons stated, no evidence of whether or not discipline was
imposed). The Union alleges that this discipline is improper as the evidence relied
upon was obtained in a manner which contravenes Appendix COR10.
-36-
[109] The uncontested evidence of Inspector Rainford was that CSOI reviews
surveillance video for the period prior to an incident involving injury or death of an
inmate to ascertain the demeanours and politics on the “range” and also the
inmate and staff behaviour which led up to the incident. In my view, this falls
within the permitted purpose of surveillance: “the safety and security of staff,
inmates and property of the respective ministry.” I note the Union did not argue
the contrary. Further in my view, the review of surveillance video is reasonably
necessary in order to accomplish this purpose. The surveillance video constitutes
an important historical record of the demeanour and politics on the range and of
the inmate and staff behaviour which led up to the incident which cannot otherwise
be replicated.
[110] The Union argues that the time period chosen by CSOI, 24 - 48 hours, is arbitrary,
casts an overly broad net and is akin to conducting surveillance “just to see what
shows up”, rather than being incident driven.
[111] I am not persuaded by this argument. Inspector Rainford’s evidence was that
CSOI would typically request video for the 24 hour period prior to the incident, and
depending on the evidence uncovered during the investigation might request
surveillance video from an earlier time period. The typical period initially
requested, 24 hours, appears well suited to the reason for which the video is being
reviewed: to ascertain the demeanours and politics on the “range” and also the
inmate and staff behaviour which led up to the incident. In the absence of any
evidence to the contrary, I infer that is the reason that period is typically initially
selected. The fact that the 24 hour period may be extended if evidence warrants it
also militates against a conclusion of arbitrary behaviour on the part of CSOI.
[112] The Union notes that in cross-examination, Inspector Rainford stated that typically
the institutions provide CSOI with the initial video without being asked, as part of
the investigation package sent by the institution to CSOI. The Union argues that it
is therefore the “employer” which typically decides how widely to “cast the net”.
This, the Union argues, amounts to “random” surveillance or monitoring, which is
impermissible.
[113] I am not persuaded by this argument. Both the institution and the CSOI are part of
the Employer. The review of the surveillance video is not being done for a random
purpose. It is being reviewed by the Employer to ascertain the causes of an
assault on an inmate or death while in custody. The Union, in effect, suggests
selection by an institution, as opposed to CSOI, of the video to be reviewed gives
rise to an inference of bad faith. While the arm’s length relationship of CSOI from
-37-
the institution may support an inference of good faith when the video is selected by
CSOI, it does not follow that the opposite is true. The period of video which CSOI
typically requests appears to be well established. An initial selection of video
corresponding to that period by an institution without being asked is not unusual.
In the absence of any evidence to suggest that the video was selected by a
particular institution for an improper purpose, I am not prepared to infer that it was.
[114] The Union argues none of the misconduct in the reference cases above raises
issues of safety or security. In any event, none of it constitutes criminal conduct.
Further, the Union notes the alleged misconduct was completely unrelated to the
purpose of the investigation and that, in the case of CO Linton, she was not even
at work at the time of the incident giving rise to the CSOI investigation. Thus the
use of the video as evidence to support discipline of a CO falls outside the scope
of the purpose of surveillance videos described in Appendix COR10 or at least the
uses of information obtained permitted by Appendix COR10. Therefore, it is
impermissible.
[115] I am not persuaded by this argument. The misconduct in question was discovered
incidental to a review of the surveillance video, which was conducted in good faith
for the purpose permitted by Appendix COR10 and was reasonably necessary in
order to accomplish that purpose. For the reasons stated above, provided the
surveillance or the review of the video of the surveillance meets those criteria, or
the information was discovered incidental to such surveillance or review, I reject
the proposition that Appendix COR10 only permits the Employer to discipline for
misconduct discovered as a result of surveillance which amounts to “criminal acts
such as theft, depredation and damage to property”.
[116] The Union argues that in each of these cases, the surveillance cameras were used
to observe the performance of duties by COs, that is to say as a tool to manage
them. Indeed, the CSOI investigator agreed that his Report was “based on review
of actions, performance, behaviour of staff in the performance of their duties”. In
this respect, the Union argues there is no difference between watching the live
feed from the surveillance cameras or watching the recorded video, which the
Union analogizes to “on demand” television. To hold otherwise would be to permit
the Employer to do indirectly (watching recorded video) that which it cannot do
directly by watching the live feed of the surveillance cameras. Further, the Union
argues that in each case the Employer had alternative ways of observing the
performance of duties by COs without use of surveillance video: a managerial
employee could have observed it by walking the floors of the institution. Thus, it
-38-
argues, the Employer has not proven that use of surveillance was uniquely
necessary.
[117] I would make a distinction between the fact of surveillance, which may be
objectionable itself, and the use of information obtained from surveillance. The
former does not need to be addressed further at this point. I agree with the Union
that at least on these facts there is no distinction between the information obtained
from watching the live feed of surveillance cameras and watching the recorded
video. I place little significance on the fact the CSOI investigator agreed that his
Report was based on a review of the performance by staff of their duties.
Surveillance for the permitted purpose of safety and security will inevitably observe
or record staff in the performance of their duties. The purpose of the review of the
information captured by the surveillance was not to manage or supervise staff nor
was it to act as a means to evaluate the performance by staff of their duties. It
was to investigate an incident involving serious injury or death of an inmate in
order to secure the safety and security of the staff, inmates and property at the
institution. The discovery of the misconduct by staff was incidental to that review.
The review, therefore, cannot be said to have been a replacement for
management or supervision. The fact that the Employer might have discovered
the misconduct by having a managerial employee walk the floor of the institution is
irrelevant as that was not the purpose for which the review was undertaken. Nor
was the information obtained with respect to the performance by staff of their
duties used “as a means to evaluate employee performance”; rather it was used
as evidence of culpable misconduct. Thus, the specific prohibition in Appendix
COR10 against the use of surveillance as “a means” to evaluate performance is
not engaged.
[118] In the result, I find that the information of misconduct relied upon by the Employer
was obtained incidentally to review of surveillance information for the purpose
permitted by Appendix COR10, which review was reasonably necessary and
conducted in good faith for that purpose, and that the use of that information by the
Employer is not precluded by Appendix COR10.
[119] As the parties did not directly address the balancing exercise in their arguments
with respect to this group of cases, I will be brief on this issue. For the reasons
stated, the Employer has established that its intrusion upon employees’ privacy
interests was incidental to a review of surveillance video which was done in good
faith, for the permitted purpose and was reasonably necessary. In terms of the
employees’ privacy interests, the fact that widespread surveillance is known to
take place within correctional institutions and that the resulting videos are known to
-39-
be reviewed when there are serious incidents involving death or injury to an inmate
weighs against any reasonable expectation of privacy when the videos are
reviewed. Further, employees know or ought to know that they may be disciplined
in relation to misconduct during the performance of their duties which becomes
known to the Employer. This further reduces the reasonableness of any
expectation of privacy in relation to such misconduct. Finally, there are no
countervailing facts such as, for example, the activity having taken place in a
space, such as a staff washroom, where there would be heightened reasonable
expectation of privacy.
[120] For all of the foregoing reasons, I find no breach of the collective agreement with
respect to the first group of reference cases.
Live Monitoring of Surveillance Video
[121] The Union presented two reference cases which may be grouped into this
category. Having said that, in my view they present different issues.
The Code Blue Incident
[122[ The first case arises from the South West Detention Centre (“SWDC”). The Union
filed a declaration from CO Jason Stroud. At all relevant times, CO Stroud was the
President of the Local representing members of the Union at SWDC. Among other
things, CO Stroud stated that on February 14, 2020, at approximately 8:00 AM a
“Code Blue” was called for all staff to report to a unit for assistance. Shortly
thereafter the Code Blue was cancelled. At approximately 8:10 AM, CO Stroud
and CO S. Newman were questioned by their Block Sergeant as to why they did
not unlock their unit immediately following the stand down announcement. CO
Stroud stated that he believes the only way in which the Block Sergeant could
have been aware of this would have been if they had been monitoring the
performance of duties by himself and Mr. Newman through the surveillance
equipment. In cross-examination, CO Stroud testified that the questioning by the
Block Sergeant took the form of a phone call. He stated that neither he nor CO
Newman were disciplined as a result. He was not cross-examined as to his belief
that the only way the Block Sergeant could have been aware that he and CO
Newman did not unlock their unit immediately following the stand down
announcement would have been if the Block Sergeant had been monitoring their
performance of duties through the surveillance equipment. In re-examination he
stated that he was unaware of any other way in which the Block Sergeant could
have been aware.
-40-
[123] The Employer filed a declaration from Brian Janisse, the A/Deputy Superintendent
of Male Operations at SWDC (whose home position is Deputy Superintendent of
Services at SWDC). Dep. Supt. Janisse stated that SWDC contains 16 living units
with a capacity of 315 offenders. While Dep. Supt. Janisse was more specific 2, it
suffices for this part of the decision to note that there are hundreds of cameras at
SWDC with monitors capable of showing a live view in a number of offices,
including the Block Sergeants’ offices. Dep. Supt. Janisse stated that: “Normally
the monitors are set up to display four views for four units (16 total).” Dep. Supt.
Janisse continued:
Given the number of cameras within SWDC, it is not possible for the Sergeants or senior
administration to live monitor each of the cameras. Instead, the monitors are available in
the event that management needs to pull up a live view or an archived view from a
particular feed. The monitors are an extra layer of security for the staff. For instance, if
there is an emergency situation, the monitors allow management to see the situation and
to provide direction and support. In our sub-controls, the officers see the same cameras
and refer to them when opening and closing doors. They are also able to alert floor
Officers to emerging situations in areas where they are not able to directly observe at all
times.
In relation specifically to the February 14, 2020 Code Blue Incident, Dep. Supt.
Janisse’s declaration contained only the following statement:
For the incident on February 14, 2022 at approximately 8:00 am, a Code Blue was called
for all staff to report to a unit for assistance. In this situation, the Sergeant noticed that
the unit was not unlocked even after the incident was completed. The Sergeant
proceeded to make a phone call to get the Unit unlocked. No one was disciplined as a
result.
This does not constitute direct evidence as to how CO Stroud’s Block Sergeant
became aware the unit was not immediately unlocked on the day in question. Nor
does the Employer assert that there was such evidence.
[124] Rather, in final argument, the Employer relied upon the declaration of Annetta
Golder. As of February 16, 2021 (the date of her declaration) Ms. Golder was the
Acting Deputy Regional Director, Compliance for the Northern Region of the
Ministry’s Institutional Services. I note that SWDC does not fall within the Northern
Region. Ms. Golder’s home position was Superintendent of the Algoma Treatment
and Remand Centre (“ATRC”). She testified that to her knowledge the Security
Sergeant at ATRC does not use the security cameras to “live monitor staff for
compliance issues”. She also stated that “as a practice” she did not perform live
2 Given that the primary target of the surveillance cameras at a correctional facility are its inmates, I
consider it appropriate to disclose as few of the security details as possible.
-41-
monitoring of staff through the security cameras at ATRC. She stated that “in the
past, I have gone into the control module [in which monitors are located] during a
Code to see if there is anything to be aware of”. She also described a specific
incident. She stated that she could tell from radio communications the incident
was “more significant”. On that occasion she “entered the control to enquire on
the nature of the incident. It was for the purpose of determin[ing] the nature of the
crisis, where assistance may be required.”
[125] A/Dep. Reg. Dir. Golder’s evidence does not constitute direct evidence of the
reason CO Stroud’s Block Sergeant viewed the surveillance feed at the time in
question. Further, her evidence of one instance, during which she viewed the
monitors during an incident at ATRC does not establish a practice of doing so at
ATRC let alone at SWDC.
[126] The evidence establishes that a Block Sergeant at SWDC has access to the live
feed from the surveillance cameras. In my view, CO Stroud’s evidence is capable
of supporting the inference that the way the Block Sergeant became aware of his
failure to unlock his unit immediately following the stand down announcement on
February 14, 2020 was through that live feed. I rely not on CO Stroud’s belief, but
on the fact that the Block Sergeant had the means to do so, called within minutes
of the failure to unlock the unit and there is no other apparent way in which the
Block Sergeant would be aware of that failure other than through the surveillance
equipment.
[127] This inference was not rebutted by the Employer. Indeed, the Employer did not
assert in final argument that the Block Sergeant did not become aware through the
surveillance equipment. Rather, the Employer argues that it would have been
completely fine for the Block Sergeant to have checked the monitors during the
Code Blue incident at SWDC in order to determine if he could render assistance.
Whatever the merits of this argument, there is no evidence that is why the Block
Sergeant was watching the monitors on this occasion. The evidence of A/Dep.
Reg. Dir. Golder as to why she checked the monitors on one occasion at an
entirely different institution does not constitute evidence as to why the Block
Sergeant was looking at the monitors at SWDC during the Code Blue incident.
[128] Nor does the evidence of Dep. Supt. Janisse that “it is not possible for the
Sergeants or senior administration to live monitor each of the cameras” because of
workload constitute evidence that the Block Sergeant at SWDC was not doing live
monitoring of the specific camera during the time of the Code Blue incident.
-42-
Further, the unexplained failure to call the Block Sergeant permits the inference
that his evidence would not have assisted the Employer on this point.
[129] I conclude, therefore, that the Block Sergeant was subjecting CO Stroud to
surveillance by monitoring the surveillance feed on February 14, 2020 at
approximately 8:00 AM. Further, I conclude that the Employer has not
demonstrated that the Block Sergeant was engaged in that surveillance for the
permitted purpose of safety and security or incidentally to surveillance for that
purpose. Accordingly, I find the Employer breached the collective agreement
when the Block Sergeant engaged in surveillance of CO Stroud on February 14,
2020.
The Christmas Tree Incident
[130] The second reference case raising the issue of live monitoring relates to what
Employer counsel referred to as the “Christmas Tree incident”. The Union filed a
declaration from CO Stewart Barber of Maplehurst Correctional Complex
(“Maplehurst” or “MHCC”). In response, the Employer filed a declaration from Earl
Essery, a Sergeant who is one of the security managers at Maplehurst.
[131] On December 28, 2018, CO Barber was assigned to work the central control
module. Up until 2016, the central control module was CO Barber’s regular post
and had been for at least ten years. Subsequent to that time it was a post to which
he was assigned at least once per week. In his declaration, CO Barber stated that
in the past when he entered the security office, he had observed the central control
module was being observed on the monitors displaying the security camera live
feeds. He also stated that colleagues had advised him that they too had entered
the security office and observed that the central control module was being
observed. CO Barber stated:
On December 28, 2018, after working the control module for a short period of time I felt
stressed at the thought of someone constantly watching and judging me. To relieve this
stress I covered the camera.
Shortly after he covered the camera, he heard Sgt Essery, Security Manager,
radio Staff Sgt Dearing to contact him. Sgt Dearing contacted him shortly
thereafter. Sgt Dearing asked CO Barber if he had covered the camera. CO
Barber admitted that he had. Sgt Dearing ordered him to uncover the camera and
to report to her office with a union representative.
-43-
[132] In cross-examination, CO Barber agreed that the security office was a restricted
area and stated that he had only been inside it approximately six times in his 17
years service at Maplehurst. The last time he had been in the security office prior
to December 28, 2018 was approximately six to 12 months earlier. Further, he
had only seen the central control module displayed on the monitors when he was
in the security office that time and the time before that, the monitors not having
been installed prior to that time. He conceded that he did not know whether
someone was in fact “constantly watching and judging” him on December 28,
2018, but stated “the feeling was there”. He had been stressed about that in the
past but not as stressed as on that day. He moved a small Christmas tree so that
it blocked the camera. He agreed that he was not disciplined as a result of this
incident. He denied having blocked the camera in the past himself, but stated that
he had seen other staff do so, although not with the Christmas tree. He was asked
how long the camera remained blocked on those instances and stated that he had
seen it blocked for an entire shift.
[133] In his declaration, Sgt Essery referred to the ISPPM:
Section 3.0 of the ISSPM’s section on Technology states that the Correctional Services
policy is to ensure that:
• Audio and video surveillance systems are designed to protect the safety and security
of all individuals as well as government assets.
• Audio and video technology are tools to enhance safety and security and do not
lessen the responsibility of employees to remain vigilant and carry out the full range
of prescribed security functions while performing their duties.
• Audio and video recordings will only be accessed by the superintendent (or
designate) in conjunction with an investigation or other authorized Ministry business.
Recorded information may be disclosed to the Ontario Ombudsman to assist in an
investigation, police services and to aid in law enforcement or other required by law.
[134] Sgt Essery described the duties of control module officers:
The daily duties of the Control Officer include responding to alarms and trouble signals;
issuing keys to appropriate employees and maintaining the record of all keys issued and
returned; operating the internal and external telephone equipment during evening and
night hours or at other times as instructed; operating the PA system; and testing all
communication, surveillance and alarm systems.
[135] He noted that there is a surveillance camera within each control module which
provides a view of the interior of each control module. The control module
cameras have always been part of the CCTV system installed at Maplehurst.
[136] Live feeds from the surveillance cameras at Maplehurst appear in the offices of
various managerial employees, including the Security Office within which Sgt
-44-
Essery works. Sgt Essery described the workload of the Security Office as very
high. One of his primary duties is the downloading of recordings related to
incidents which are subject to investigation. Hundreds of DVDs per year are
created as a result. When the system is switched on for this purpose, it auto-
populates with the live feeds from the cameras from which recordings were last
being downloaded. Sgt Essery stated:
10. The Security Office does not do live monitoring of the cameras. We do not have
the time nor the staff resources to do live monitoring of the cameras, of which there were
approximately 900 in total at MHCC. ….
[137] The portions of Sgt Essery’s declaration specific to the December 28, 2018
incident read as follows:
Events of December 28, 2018
11. The issue with the camera being blocked has been an ongoing issue in Central
Control even before the incident on December 28, 2018. At one point, staff who were
assigned to Central Control had brought in a decorative tree approximately three feet in
height. The tree was placed in front of the camera in Central Control such that the
ornament at the top of the tree would block the view of the camera lens. Depending on
the time of the year, the ornament may vary between Christmas, Halloween or
Valentine’s Day decorations. Previous orders to move the tree have not stopped the
attempts by Central Control staff to block the view of the camera lens, as they would
resort to using balloons or suspending items from the ceiling. In other instances, Central
Control staff will directly place paper or other materials to directly cover up the camera
lens. To my knowledge, there has not been an issue with staff blocking the camera in
the control modules other than in Central Control.
12. I do have a recollection of the incident on Friday, December 28, 2018 that was
described in CO Barber’s declaration and occurrence report. Based on the time of the
incident report by CO Barber, the incident would have occurred just after I came on shift
at 0700 hrs. I do not have any specific recollection as to why the stream from Central
Control was on my monitor that morning. Based on my practice, however, I expect that I
was downloading from the Central Control stream the previous day, and the system
auto-populated with the Central Control stream when it was turned on again that
morning. I can definitively say that I was not doing a live monitoring of the video stream
from Central Control on that morning. As I previously mentioned, there is neither the time
nor the staff resources in the Security Office to perform live monitoring.
13. As a manager, when I come across an obstruction on a piece of equipment, it
was my duty to address the issue. I do remember noticing on the morning of the 28th
that the view from Central Control’s camera was obscured, and I had asked Sgt Nicole
Dearing to investigate and address the issue. It is my understanding that Sgt Dearing
and Sgt Guhbin then went to Central Control to address the issue with the officer. As set
out in the ISPPM, cameras within the Institution are designed to protect the safety and
security of all individuals as well as government assets, and audio and video technology
are tools to enhance safety and security. Therefore, the deliberate obstruction of the
-45-
view of a camera lens jeopardies [sic] the safety and security of the institution and is not
acceptable conduct by a staff member.
[138] In cross-examination, Sgt Essery agreed the surveillance cameras could be used
for live monitoring of staff. He repeatedly denied, however, that the Security Office
used the surveillance cameras to do live monitoring of the central control module.
He testified recordings of the feed from the central control module camera are
downloaded for use of force investigations. This is to ensure continuity of
evidence, because that camera captures a portion of a hallway through which
inmates are escorted from a unit to segregation. The camera also shows the
whole inside of the central control module, unless it has been blocked by staff
within the central control module.
[139] The Union asserts the Employer is arguing that the camera in the central control
module is reviewed in order to observe the movement of inmates out in the hall
and that it is just unfortunate that it happens to capture the officers working in the
central control module. The Union notes that CO Barber’s evidence was that he
observed a live feed from the central control module when he was in the Security
Office. The Union rejects the proposition that could have been “just by chance”.
[140] In my view, this argument is not made out on the evidence. It is clear that Sgt
Essery must have seen the live feed from the central control module on December
28, 2018, as he observed that the live feed was obstructed on that date. However,
Sgt Essery’s evidence that he was not monitoring the live feed from the central
central module on that date is plausible given his explanation of the work of the
Security Office and the way in which that would result in the live feed from the
central control module auto-populating the monitor. CO Barber’s evidence that he
had observed a live feed from the central control module in the Security Office on
two prior occasions over the course of his 17 years of employment, the last time
being six to 12 months prior to the December 28, 2018 incident, is not sufficient to
cause me to doubt Sgt Essery’s direct evidence that he was not engaged in live
monitoring the control module on that day. I also agree with the Employer that the
fact CO Barber had observed the camera in the central control module obstructed
for an entire shift tends to rebut any inference that the live feed from the central
control module is regularly monitored. If it were, one would expect that the
Employer would have directed the removal of the obstruction during the course of
that shift. In the result, I conclude Sgt Essery’s observation on December 28,
2018 of the fact the surveillance camera in the central control unit had been
obstructed was not because he was monitoring the performance of the officers in
the central control, but rather in good faith and incidental to a reasonably
-46-
necessary and proper purpose. That purpose was the downloading of recordings
related to incidents which are subject to investigation.
[141] The Union argues that even if cameras are needed to observe inmates in the
hallway passing by the central control module, those cameras do not need to be
located where they monitor the central control module officers all day, every day.
The Union seeks, at minimum, a direction similar to the one granted by Arbitrator
Howe in William Neilson Dairy, repositioning the central control module
surveillance camera or changing the scope of its view. The Employer argues this
would have the effect of creating a blind spot in a secure area of a correctional
institution.
[142] In my view, there is no question that the mere fact of being under the gaze of a
surveillance camera engages privacy interests of employees, whether or not the
employee is actually observed by means of that camera. The issue, in the first
instance, is whether the placement by the Employer of a surveillance camera so
as to capture the central control module was done in good faith for a purpose
consistent with that permitted by Appendix COR10 and whether it was reasonably
necessary in order to accomplish that purpose. That purpose is “the safety and
security of staff, inmates and property of the respective ministry.”
[143] The evidence as to why the surveillance camera was placed in the central control
module was scant. The ISPPM indicates “audio and video technology are tools to
enhance safety and security”. Sgt Essery’s evidence suggests that was the
purpose for the camera in the central control module. It is clear the duties of the
officers in the control module are reasonably necessary to the safety and security
of inmates, staff and property in the building. I infer the ability, if necessary, to
observe central control module officers in the performance of those duties has a
safety and security function. The camera is also used to observe the hallway next
to the central control module through which inmates pass, in particular when they
are being escorted to or from the segregation units. There is no dispute that this
has a safety and security function. There is no evidence that the camera was
placed in the central control module for any other purposes. I conclude its
placement was done in good faith for purposes permitted by Appendix COR10.
[144] Was the placement of a camera in the central control module reasonably
necessary to accomplish these purposes? I am satisfied that it was reasonably
necessary for the purpose of observing the central control module officers in the
performance of their duties. It is not apparent that there is any other means of
doing so. However, I am not satisfied that placement of a camera in the control
-47-
module was reasonably necessary for the purpose of observing inmates in the
hallway as they are being escorted to and from the segregation units. It is not
apparent why a camera placed in the hallway could not be used for that purpose.
There was simply no evidence on this point at all.
[145] I turn now to consider the reasonable expectations of privacy of the central control
module officers. In my view, given the nature of their duties, they ought to
reasonably expect that they may be subject to observation through the camera if it
is reasonably necessary for the Employer to observe the performance of those
duties for a safety and security purpose. Further, they ought to reasonably expect
that they may be subject to observation incidental to observation of the camera
feed or record for some other necessary safety and security purpose. The
difficulty with the observation of the central control module camera feed or record
for the purpose of observing inmates in the hallway is that the reasonable
necessity of doing so has not been established. In the absence of the Employer
establishing the reasonable necessity of doing so, given the frequency with which
it appears the central control module camera feed or record is checked for this
purpose, the sense of violation of privacy, expressed by CO Stroud, is not
unreasonable.
[146] On balance I find the installation of a camera in the central control module does
not, itself, violate the collective agreement but that the reasonable necessity of
using that camera for the purpose of observing the passage of inmates in the
hallway next to the control module has not been established. I direct the Employer
to consider whether there are means of observing the passage of inmates in the
hallway next to the central control module which do not result in the observation of
the central control module officers. This includes, but is not limited to, considering
whether a separate camera could be installed in the hallway.
The Use of Surveillance Cameras to Perform “Spot Checks”
[147] The last group of reference cases all relate to the Employer’s use of surveillance
recordings in 2020 at SWDC to conduct “spot checks” of whether COs had
complied with the shift changeover procedures. Those procedures are set out in
a “Superintendent’s Directive” for SWDC dated July 24, 2020. They require the
CO assuming duty to count all inmates in the area in the presence of the CO
being relieved. The CO assuming duty is then required to examine the “static”
security equipment (i.e. walls, doors and windows), all “issued equipment” (i.e.
issued to inmates) and any restraints, to ensure they are all present, secure and
functioning in good working order. The CO assuming duty is then required to
-48-
complete a Certificate which includes the number of inmates in the area, the
condition of the static and issued equipment and also the number of keys handed
over.
[148] The declaration of Dep. Supt. Janisse sets out most of the facts with respect to
the changeover issue. There was no material dispute with the facts therein (as
distinct from expressions of opinion), except as noted below.
4. In October 2019, an inmate death occurred at SWDC. The subsequent
investigation by CSOI determined that staff were not performing proper shift
changeovers and that there was widespread non-compliance. The performance of a
proper shift changeover procedure is essential to the safety and security of inmates and
staff. As part of a proper changeover procedure, a CO is required to determine the
number of inmates in the area, the number of keys handed over, and the condition of
static security equipment and issued equipment. By doing a proper changeover, the COs
are accounting for the inmates and also for items that could be used as weapons or to
facilitate an escape.
5. Because the CSOI had indicated an issue with shift changeovers, I went back to
review videos at random days on random units and confirmed that there was little to no
compliance with proper changeovers. For instance, the Officers were not even
conducting a tour of the area, looking into the cells, counting the inmates or accounting
for issued equipment.
6. To improve staff compliance with the shift changeover procedure, the
Superintendent and myself sent reminders to educate staff regarding the requirements.
These reminders included the Superintendent’s Directive dated July 24, 2020 issued by
A/Superintendent Carole Deschaine, and also an August 26, 2020 memo issued by
myself in which I noted an improvement in compliance with the shift changeover
procedures and introduced a new interim procedure for the 1900 hr shift changeover.
Additionally, Sgt Randy Simpraga and I met with Mr. Stroud on several occasions in his
capacity as Local President to enlist his support to get staff to do proper shift
changeovers. Mr. Stroud in those meetings stated he agreed with us for the need to do
proper shift changeovers and said he will help us with getting his members on board.
7. Because there are 12 different changeovers conducted simultaneously twice per
day at 0700 hours and 1900 hours, it is not feasible for Sergeants to physically attend all
the changeovers. In some instances, Sergeants have done spot checks by reviewing
video and also watched the shift changeovers through the monitors. The spot checks
were not intended to lead to disciplining officers, and no one has been disciplined as a
result of the spot checks. Further, spot checks were not done for other periods to review
if officers were performing their duties properly during the shift or to review their
punctuality for attendance at work. Instead, the spot checks were prompted by a specific
concern about shift changeovers that was identified by the CSOI investigation.
8. Sgt Simpraga had sent out the Appendix COR10 notice to Mr. Stroud, the Local
President, before we started doing spot checks on the changeovers in order to let the
Union know that we were going to monitor them. On July 30, 2020 at 10:54 AM, Mr.
Stroud emailed myself to question the Appendix COR10 notices which were being sent
out by Sgt Simpraga. I sent an email to Mr. Stroud on the afternoon of July 30th at 1:52
-49-
PM stating that the notice was sent in error, and that the Ministry was not “using
electronic audio or video recordings for discipline or to conduct an investigation nor will
be meeting with any employees for the purpose of an investigation…”
9. This clarification email was sent because the intention of the spot checks was not
to investigate or to discipline the officers who did not perform a shift changeover
properly. As mentioned earlier, the Institution did not discipline anyone as a result of the
spot checks. The video was being used as a tool to assist us with managing a
compliance issue in a large institution that was identified by a CSOI investigation, to
ensure that the safety and security of the institution is being met. Shortly after we
started doing the spot checks, we saw a dramatic improvement with shift changeover
compliance. There were two or three occasions I can recall since then where I checked
some random units and did not find any issues with the way shift changeovers are being
conducted. Our issue with the changeovers is considered resolved at this time.
Management does not currently have any concerns.
10. On September 3, 2020, Sgt Simpraga and I met with Mr. Stroud, who attended
with CO Renzo Anzolin as a support person. On September 2, 2020, Sgt Simpraga had
directed Mr. Stroud to submit an occurrence report before the completion of his next
scheduled shift regarding the relief of his B4 Primary duties on Tuesday, September 1,
2020. On the morning of September 3, 2020, Mr. Stroud had emailed Mr. Simpraga and
copied myself, other members of senior administration and Western Regional Office,
questioning Mr. Simpraga’s direction during the September 3, 2020 AM shift briefing
regarding how staff are to instruct inmates to enter their cells for the night shift
changeover. I found his questions to be nonsensical and unrealistic. It was my belief
that he was trying to dissect the memo that was meant to help his members by breaking
it down minute by minute in an attempt to paint a picture to others that the management
at SWDC was being unreasonable and heavy handed. That couldn’t be farther from the
truth.
11. During the meeting, Mr. Stroud said we cannot look at the video to see if COs are
doing proper shift changeover. Sgt Simpraga and I explained that there has been a
Directive sent out and I said that the Institution needs to ensure compliance with the
Directive. When we did the review and spot checks, it was found that Mr. Stroud himself
was not doing a proper shift changeover. Sgt Simpraga had then requested an
occurrence report from Mr. Stroud and also other officers who did not do a proper shift
changeover.
12. I felt compelled to have a meeting with Mr. Stroud to show him a video of his
changeover, and to explain that it would be difficult for him to get the members on board
with conducting proper shift changeovers if he himself was not doing them properly. The
issue with Mr. Stroud was that he did not count the inmates during the changeover. I
showed Mr. Stroud the video, who insisted that he did count the inmates despite the
video showing that he was not doing the count. Mr. Stroud’s response was that he asked
the other officer as to what the count was, and that to him was same as doing the count.
I told him that he needed to do the count himself. In addition to this I found his response
to be absurd and not believable. I believe that Mr. Stroud absolutely knows that asking
someone what the count is does not qualify as “conducting a count” for the purposes of
a changeover. The purpose of showing Mr. Stroud the video was not to investigate or to
potentially discipline him. If that was the intention, we would have first issued the
Appendix COR10 notice, and he would not have been afforded the opportunity to see it
during the meeting.
-50-
13. At the September 3rd meeting I said that I would hold off on further requests for
asking for occurrence reports until Mr. Stroud has had the chance to get his members on
board to do proper shift changeover. However, there was no agreement for Mr. Stroud
not to submit the report that was previously requested by Sgt Simpraga on September
2nd. On September 4th, Mr. Stroud emailed Sgt Simpraga to state that there has been a
mutual agreement during the September 3rd meeting that no reports will be requested or
relied upon pertaining to the events which were displayed / shown on video. Sgt
Simpraga then responded by email on September 4th to reiterate that the previously
requested occurrence report must be submitted.
[149] CO Stroud’s declaration addressed this issue on behalf of the Union and he was
subject to cross-examination. He was directed to the requirement in the
Superintendent’s Directive that the CO assuming duty examine “all issued
equipment”. He agreed this could include a mop and a bucket issued to an inmate
for cleaning purposes. He also agreed that it would be important to ensure a mop
and a bucket were accounted for because they could be fashioned into weapons
by inmates. He was directed to the requirement in the Directive that the CO
assuming duty certify the number of inmates in the area and was asked why it was
important to do so. He responded it was important to do so because the Directive
required it, and also because one of the primary objectives of a CO is to account
for the inmates in the area which they are taking over to make sure none had
escaped.
[150] CO Stroud also agreed that he had several discussions with Dep. Supt. Janisse
and Sgt Simpraga in June of 2020 about the importance of following shift
changeover procedure. He agreed with them that it was important and offered the
assistance of the Local in getting buy-in from the members. He stated he
encouraged Dep. Supt. Janisse and Sgt Simpraga to give the members some time
to change their behaviour, noting that “we all want to do a good job and ensure
everything is done properly and safely”. He stated that he did in fact speak to the
Local members to educate them on this issue, not all of them but a majority of
them.
[151] CO Stroud stated that he had never been subject to a formal performance review
while at SWDC and that to his knowledge neither had any other CO since the time
the building first opened (which was 2014).
[152] CO Stroud took issue with Dep. Supt. Janisse's statement that no CO had been
disciplined as a result of the spot checks. In particular, he stated that COs had
received letters of counsel in relation to shift changeover. In his mind, this
constituted discipline. I disagree. The jurisprudence of this Board is clear that a
-51-
true letter of counsel does not constitute discipline. I note the Union did not argue
that any CO was subject to discipline as a result of the spot checks.
[153] Dep. Supt. Janisse was also subject to cross-examination. He agreed that there
was nothing preventing various managerial employees from going on the floor to
observe whether or not COs were performing the shift changeover properly, but
referred to the fact that some of them had other duties and that others were not
scheduled to work on weekends and it was unlikely that they would be. He also
agreed that in reviewing the videos to determine whether or not COs had
completed the shift changeover properly, managerial staff were observing staff in
the performance of their duties in order to check whether they were performing the
shift changeovers correctly.
[154] The Union notes Dep. Supt. Janisse’s declaration indicates on several occasions
that surveillance video was used as a tool by the Employer to assist in managing a
“compliance” issue. The Union argues that is supervision in the purest sense.
The Union also relies on Dep. Supt. Janisse’s agreement in cross-examination that
the spot checks of the videos were to review the performance by COs of their
duties. The Union argues the purpose of this review is to evaluate and monitor
performance, which the Union argues is contrary to Appendix COR10.
[155] The Employer argues in the reference cases at hand, it was responding to a
finding in a CSOI report that shift changes were not being done properly and that
there was widespread non-compliance. This was a potential security issue. The
Employer took a number of steps to attempt to educate staff on this issue. Then
the Employer undertook spot checks of recorded surveillance video to ensure that
shift changeovers were being done properly. The result was a dramatic
improvement in shift changeover compliance. No staff were disciplined. The
Employer argues that this was a proper use of the surveillance video: to address a
narrow security issue.
[156] The Employer then turns to consider whether the restrictions set out in Appendix
COR10 on the use of surveillance video were violated. In particular, the part of
Appendix COR10 which states surveillance equipment is “not to be used as a
replacement for supervising or managing; or as a means to evaluate employee
performance.”
[157] With respect to whether the spot checks were used “as a replacement for
supervising or managing”, the Employer argues the evidence establishes that Dep.
Supt. Janisse was doing spot checks to address a specific safety issue identified
-52-
by CSOI: widespread non-compliance with shift changeover procedures. Dep.
Supt. Janisse was not looking at “performance writ large”. The spot checks were
not being used as a “replacement” for managing employees. That is, they were
not being used “instead” of managing employees. On the contrary, the Employer
had also sent directives to the employees, worked with the Local President on how
to work with the members of the Local and had shown the President of the Local
video of his own shift changeover so that he would understand what he had done
improperly.
[157] With respect to whether the spot checks were used “as a means to evaluate
employee performance”, the Employer argues they were not. Dep. Supt. Janisse’s
evidence was that he was doing spot checks in order to ensure that shift
changeover was being done properly.
[158] In response to questions from me, the Employer concedes that there has to be a
basis for concern before the Employer uses surveillance video to conduct spot
checks, but argues in this case there was one, specifically the CSOI finding that
staff were not performing proper shift changeovers. The non-compliance was not
limited to one or two individuals, but rather was widespread. The performance of
shift changeovers is a safety and security issue. Dep. Supt. Janisse’s evidence
was that he conducted the spot checks in order to address this concern. The
Employer argues it was not required to investigate whether this issue could be
addressed in less privacy intrusive ways, citing Ebco. With respect to how long
the Employer would be permitted to continue to conduct the spot checks, the
Employer argues that it is permitted to do so until the concern which gave rise to
the spot checks in the first place is resolved to its satisfaction.
[159] Returning to the issue of whether the spot checks were used as a means to
evaluate employee performance, the Employer argues they were not. Indeed, CO
Stroud’s evidence was that there had been no formal performance reviews during
his time at SWDC. The Employer also notes that no employee was disciplined as
a result of the spot checks. Some employees, specifically CO Stroud, were asked
to write an occurrence report in relation to why he had not conducted a shift
changeover properly. However, the Employer argues, an occurrence report is not
an evaluation and while an occurrence report may result in discipline this is not
always the case.
[160] In reply, the Union argues the language of the parties’ collective agreement is
unique and must govern. With respect to the limitation in Appendix COR10 on the
use of surveillance as “a replacement for supervising or managing”, the Union
-53-
rejects the equation of the term “replacement for” with the term “instead of”,
arguing that if that were the case the Employer could always argue that a use of
surveillance cameras or recordings to “supervise or manage” was not being done
as a replacement of supervision or management but as a supplement to
supervision or management. The Union rejects the premise of the Employer’s
argument that Dep. Supt. Janisse was not engaged in review of “performance writ
large”. Appendix COR10 precludes the use of surveillance “as a means to
evaluate employee performance.” It does not refer to “performance writ large”.
[161] With respect to the questions I had posed to the Employer, the Union argues that
spot checks of surveillance videos to ensure compliance with shift changeover
procedures are not permitted at all because Dep. Supt. Janisse’s evidence
established that an alternative existed: the managers could “get out of their chairs
and manage”. Further, that is what Appendix COR10 requires given the
restrictions it places on the use of surveillance equipment for managing or
supervising of employees. The Union argues the fact improper shift changeovers
may create a security risk is irrelevant because of those same restrictions.
[162] In my view, the spot checks of surveillance video to determine whether or not COs
were complying with shift changeover procedures clearly amount to monitoring the
performance of work by the COs. However, it also had the purpose of ensuring
the safety and security of the institution. The safety and security purpose was
established by the evidence of Dep. Supt. Janisse. A CSOI investigation had
identified wide-spread non-compliance with the shift changeover procedures.
Non-compliance with the shift changeover procedures was a security issue. Dep.
Supt. Janisse testified the spot checks were done in order to address that issue. I
also note that CO Stroud agreed that compliance with shift changeover procedures
was important. He agreed that shift changeover procedures serve important
objectives of ensuring any issued mop and pail were accounted for, lest they be
turned into weapons, and ensuring that all inmates in the area were accounted for,
lest they have escaped. These readily fall within the rubric of safety and security.
I also note that Dep. Supt. Janisse’s unchallenged evidence was that the spot
checks were limited to ensuring compliance with the shift changeover procedures.
I conclude, therefore, the purpose the Employer engaged in the spot checks was
for the safety and security of staff, inmates and property at SWDC. This purpose
is permitted by Appendix COR10.
[163] For similar reasons, I am satisfied the spot checks were conducted in good faith in
furtherance of that purpose. Dep. Supt. Janisse’s evidence to that effect was
-54-
unchallenged and there is no evidence to the contrary. I note as well the Union did
not allege bad faith on the part of the Employer.
[164] This leaves the question of the reasonable necessity of using spot checks of the
surveillance videos to accomplish this result. The Employer argues that an
employer is not required to show that there were no viable, less privacy intrusive
ways of accomplishing its objective. I agree there is no absolute requirement.
However, the extent to which an employer has established the reasonable
necessity of privacy intrusions is a factor to be considered during the balancing
exercise. Failure to show that other possibilities were considered will make it
challenging for the employer to establish the reasonable necessity of the means
chosen.
[165] In this instance, the spot checks of surveillance videos were used by the Employer
to address widespread non-compliance with shift changeover procedures. As
stated above, I find this was done in good faith for the permitted purpose of safety
and security. Clearly the use of videos was helpful to the Employer in
accomplishing this purpose, but was it reasonably necessary?
[166] The Union argues the Employer could have directed supervisory staff to get on the
floor to observe the conduct. The Employer responds that there are insufficient
staff to do so given their other duties. In my view, this is at best only a partial
answer. It is not clear to me that in-person supervision of employees was required
to address the shift changeover issue. The fact the non-compliance was
widespread suggests this was, at least in the first instance, a performance issue
which might be addressed by training. Indeed, Dep. Supt. Janisse’s evidence
establishes the Employer’s primary means of addressing this issue was to send
“reminders to educate staff regarding the requirements”. Dep. Supt. Janisse also
sought out and received the cooperation of the Union through meetings with CO
Stroud, the President of the Local. CO Stroud’s evidence was that he agreed this
was an important safety issue, offered to assist, asked Dep. Supt. Janisse to give
the members some time, and that he personally spoke to a majority of the
members about this issue.
[167] The Employer argues there was a dramatic improvement in compliance with the
shift changeover procedures. It is not at all clear to me that the spot checks, as
distinct from the training, were the reason for this improvement. On the contrary,
the Appendix COR10 notice sent in error by Sgt Simpranga (which advised that
the Employer intended to use surveillance video showing improper changeovers
for disciplinary purposes), the spot checks of surveillance video to determine
-55-
compliance and the resulting requests that COs provide occurrence reports in
relation to failure to follow proper procedures, all appear to have served primarily
as the source of aggravation of relations between the Union and the Employer.
[168] In the result, I find the Employer has not established the reasonable necessity of
impinging upon the privacy interests of the COs at SWDC by performing spot
checks of surveillance video to ensure compliance with the changeover
procedures in these reference cases.
[169] I turn now to the balancing exercise. As the parties did not directly address the
balancing exercise in their arguments with respect to this group of cases, I will be
brief on this issue.
[170] The balancing exercise requires consideration of whether the expectations of
privacy of COs were objectively reasonable in the circumstances. As noted, the
fact that wide-spread surveillance is known to take place within correctional
institutions and that the resulting videos are known to be reviewed when there are
serious incidents involving death or injury to an inmate weighs against any
reasonable expectation of privacy. Further, employees know or ought to know that
they may be disciplined in relation to misconduct during the performance of their
duties which becomes known to the Employer.
[171] The non-compliance with shift changeover procedures, however, was not
misconduct. It was a wide spread performance issue of legitimate concern
because it had safety and security implications. The provisions of Appendix
COR10 are also relevant to the assessment of the reasonableness of employees’
expectations of privacy. COR 10 provides in part: “The use of electronic
monitoring/surveillance equipment is not to be used as a replacement for
supervising or managing; or as a means to evaluate employee performance.”
Simply stated, the employees’ expectation of privacy with respect to the
performance of their duties is more reasonable than an expectation of privacy with
respect to misconduct. Given the Employer failed to establish the reasonable
necessity of performing the spot checks, those privacy interests prevail.
Conclusion
[172] For the reasons stated:
(i) I find the Employer breached the collective agreement when the Block Sergeant
engaged in surveillance of CO Stroud at SWDC on February 14, 2020.
-56-
(ii) I find the installation of a camera in the central control module at SWDC does
not, itself, violate the collective agreement but that the reasonable necessity of
using that camera for the purpose of observing the passage of inmates in the
hallway next to the control module has not been established. I direct the
Employer to consider whether there are means of observing the passage of
inmates in the hallway next to the central control module which do not result in
the observation of the central control module officers. This includes, but is not
limited to, considering whether a separate camera could be installed in the
hallway.
(iii) I find the Employer breached the collective agreement at SWDC in 2020 by
performing spot checks of surveillance video to ensure compliance with the shift
changeover procedures.
[173] On the agreement of the parties, I remained seized should they be unable to agree
on what, if any, further remedy should be granted in relation to these findings. I
note in this respect the parties’ agreement recorded in the July 20, 2020 decision:
The issue of individual remedies shall be bifurcated. The Employer reserves the right to
argue that no remedy should be granted in any particular grievance, including on the
basis that it is stale dated.
Dated at Toronto, Ontario this 17th day of September, 2021.
“Ian Anderson”
______________________
Ian Anderson, Arbitrator