26 November 2004 Across the Table - Camera Surveillance and the Privacy Rights of Employees A federal court ruled recently against the Privacy Commission's recommendation to remove cameras from the premises of Canadian Pacific Railway (CP). This case is significant because it is the first case testing the provisions of the Personal Information and Electronic Documents Act (PIPEDA) in a unionized facility. It is also significant because it sets down the conditions under which camera surveillance is deemed appropriate and the conditions under which explicit consent of the employees is not required.   On one level, this case is about balancing the right of an employer to protect its interests and the right of privacy for the employee. On another level, this case is about balancing privacy issues with the employer's overarching requirement to provide a safe work environment for all employees. Justice Lemieux's decision also turns our attention to how non-union and, more specifically, union workplaces may proactively implement a policy for camera surveillance.   The case involves a complaint made on 17 Jan 2002 by Erwin Eastmond, an employee of Canadian Pacific Railway and a representative of the Canadian Auto Worker's human rights committee. Eastmond made a complaint to the Privacy Commissioner claiming the installation of cameras contravened PIPEDA because it was done in secrecy and without consultation with the union; there was no security problem to justify the monitoring of employees; this monitoring could be used to oversee the work performance of employees; and the negative effect on workers' morale and working climate is dangerous.   The Privacy Commissioner commenced an investigation and applied a four-part test:   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 proportional to the benefit gained? 4. Is there a less privacy-invasive way of achieving the same end?   The Court agreed the four-part test established by the Privacy Commission was appropriate for assessing the legitimate presence of the surveillance cameras. In testimony given by employer witnesses, a long list of reasons was given to help satisfy the test. Among the reasons given by the employer was the concern for the safety of female employees who had in the past complained about sexual harassment and assaults in the maintenance yard of Canadian Pacific. Of the 900 workers employed at the Toronto maintenance yard, only 15 were female. Other concerns included "crimes such as theft, vandalism, weapons use, drug and illegal alien trafficking, equipment sabotage, computer crime, fraud, arson and trespassing".   The parties agreed that "for this Court to find CP breached its PIPEDA obligations, two sub-issues need to be dealt with:  first, were CP's purposes appropriate; and second, did CP require the applicant's consent to collect his personal information?" The answer to these two questions has important implications for how we are to interpret the balancing act between privacy rights and the right to protect property and ensure the safety of employees.   The Court ruled against the Privacy Commissioner's recommendation to remove the cameras for the following reasons: The collection of personal information through the recordings is not covert; there are signs warning of the existence of cameras; The monitoring is not continuous and only records images that come within the view of the fixed, non-zooming lenses of the camera; The cameras record the activities of all individuals, not just CP employees; The cameras do not record the work performance of employees except in extraordinary cases; The recordings are only viewed once an incident has been reported. There is no constant monitoring; There is an established need for surveillance to deter illegal activity; The employer sufficiently demonstrated that the cameras will "enhance the security of its employees and others and the security of its goods". On the question of whether employees are required to give their consent to the collection of personal information, the Court referred to the exemption in Section 7 of PIPEDA. Given the facts in this case, the employer did not have to gain the consent of employees where, "it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province."   Analysis   Did Justice Lemieux balance the privacy rights of employees and the employer's right to collect personal information for the purpose of deterring illegal activity?   Although the Court must have the appearance of using neutral instruments to make determinations about balancing competing interests, there is always an appeal to some generally acceptable value to help adjudicators make decisions. In most cases, the value appealed to is utility, or cost-benefit analysis. The application of utility requires the adjudicator to apply greater weight to some factors and less weight to other factors. In the case before us, the facts appear to show that there was a significant need to deter future illegal activity because it had occurred in the past. The seriousness of this illicit activity requires extraordinary precautions when other less invasive precautions are not available.   This being said, CP could have taken a more consultative approach to implementing its surveillance plan by inviting employee representatives to the table. Deliberative labour-management practices can be arduous and time consuming, but the pay-off in terms of implementation and long-term buy-in is priceless. Disagreements may still remain after the consultation, but rigorous dialogue is always far better than radical dissension that will eventually lead to reduced morale, productivity and job satisfaction.   What to do   What lessons can be gleaned from the decision of Justice Lemieux to better equip workplaces that have electronic surveillance? Employees and employers should be aware that this decision has established jurisdictional parameters for hearing recommendations from the Privacy Commissioner. Paragraph 13 of PIPEDA provides the Commissioner with the discretion to "investigate a complaint or defer it if he considered it appropriate a complainant should exhaust a grievance [procedure]." This means that in the absence of collective agreement language that does not refer to the privacy rights of employees, employees may refer the recommendation of the Privacy Commissioner to the Courts.   However, in the case where a collective agreement does include privacy right language, PIPEDA has greater legislative authority and may still be referred to the Courts at the discretion of the Commissioner. Therefore, labour relations jurisprudence is still in need of a decision by the Commissioner or the Courts speaking to the issue of whether a labour arbitrator will have precedence to hear a privacy right complaint where such language is in the collective agreement.   The Court has directed respondents to PIPEDA applications to raise at the earliest opportunity the existence of an alternative dispute resolution mechanism available to the parties, such as a grievance procedure. The Court did not go so far as to say the Commissioner would be bound to defer to this other mechanism, but the inference is that alternatives should be contemplated before proceeding to the courts.   One lesson to be learned in the era of privacy rights legislation is that parties, union and non-union, should be negotiating local-level conciliation procedures. This should result in win-win resolutions instead of litigious and adversarial confrontations in the courts.