Expert: David Conboy - 9/16/2011

Question
Hi,

I would like to pursue a career as an arbitrator and I am currently reading various cases and trying to come up with a solution. However, I have come across a case that has baffled me. Therefore, I would like to know what you would do as an expert arbitrator (i.e. whether you would be on the employer's side or the union's side). It's a very long case but I'm just going to give you the main points.

Key issues of the case:

The grievor was discharged during a lawful strike of employees against the employer. The employer contends that he was discharged because he intentionally damaged and interfered with two Toronto Star vehicles as well as with the vehicle of a supplier. The discharge was subsequently reduced to a suspension of thirty calendar days without pay. The guild contends that the suspension was unfair, unreasonable and a violation of the collective agreement between the parties.

The employer wishes to place in evidence a videotape which it contends records two of the incidents which led to the grievor being disciplined. At the hearing, counsel for the employer indicated that he intended to introduce the videotape through the person who had taken it. Employer counsel did not dispute the guild’s contention that the incidents allegedly depicted on the videotape took place in connection with picketing activity by striking employees.

The guild objects to the introduction of the videotape on three main grounds. These are that: (1) it is a form of unreliable hearsay; (2) the surveillance associated with the making of the videotape was an invasion of employees’ privacy; and (3) the surveillance of employees involved an unfair labour practice. The guild further contends that a videotape can only be used to clarify viva voce evidence given by a witness and, accordingly, the videotape is unnecessary to the employer’s case.

I have not viewed the videotape. My understanding of the guild’s position is that I can and should rule against receiving the videotape without having viewed it.

Counsel for the guild contended that a videotape is a form of hearsay. He further submitted that it is inherently unreliable. In this regard, he referred to the situation of a football game where the question of whether a particular player was out of bounds depends on the angle at which one viewed the play. He noted that unlike a witness he cannot cross-examine a videotape to clarify matters.

Guild counsel also noted that the reliability of a videotape can be affected by technical defects, tampering, editing and running it faster or slower than the action it depicts. He submitted that because of the inherent unreliability of a videotape, even if it is not hearsay I should refuse to accept it into evidence.

The courts have applied the criteria for determining the admissibility of still photographs to videotapes. The essential criteria for admissibility are: (1) accuracy in representing the facts; (2) fairness and absence of any intention to mislead; and (3) verification by a person capable of doing so: see R. v. Creemer and Cormier, [1968] 1 C. C. C. 14, [1965-69] 4 N. S. R. 546, 1 C. R. N. S. 146 (N. S. C. A.).

The contention that the hearsay rule applies to videotape material was expressly rejected in Simpson Timber Co. (Saskatchewan) v. Bonville, [1986] 5 W. W. R. 180 (Sask. Q. B.), where the court held as follows at p. 188:

   At the heart of admissibility of these videotape films is whether I am satisfied that there is some evidence upon which I might reasonably be certain that they are an accurate reproduction of what they purport to reproduce and they are of a content and quality that they will not mislead or prejudice but rather assist in providing relevant evidence. Any controversy as to accuracy goes to weight and not admissibility. This evidence, with respect, has nothing to do with the hearsay rule as suggested by counsel for the respondents. Is the tape authentic? If so, it is admissible.

The admissibility of videotape material which does not accurately represent the facts was considered by two Ontario County Court judges when considering criminal charges laid against professional hockey players. In R. v. Maloney (No. 2) (1976), 29 C. C. C. (2d) 431, videotape film depicting certain events at their actual speed and in the proper sequence was accepted into evidence. Slow-motion film and film containing excerpts which were out of sequence, however, were not accepted. In R. v. Williams (1977), 35 C. C. C. (2d) 103, a videotape was accepted into evidence when shown at normal speed. Parts of the same tape when shown in slow motion, however, were held not to be admissible in evidence.

I believe the approach taken by the courts to be appropriate in these proceedings. Thus the videotape sought to be introduced by the employer will be admissible if it accurately represents the facts, it is fair and was prepared without any intention to mislead and its authenticity has been verified by a witness capable of doing so. In deciding whether or not these criteria have been met, logically I will be required to view the videotape.

The general rule respecting still photographs is that they can only be introduced in evidence for the purpose of clarifying oral testimony. It was on this basis that the courts initially admitted films and videotapes into evidence. In Army & Navy Department Store (Western) Ltd. v. Retail Wholesale & Department Store Union, Local No. 535, [1950] 2 D. L. R. 850, 97 C. C. C. 258, [1950] 2 W. W. R. 999 (B. C. S. C.), Mr. Justice Farris accepted a moving picture for the purpose of clarifying certain oral evidence. He then indicated that in the future moving pictures might themselves be relied on as evidence. In this regard he commented as follows at p. 853:

   With the scientific development of moving pictures, there might arise, in the future, an action when the pictures themselves, properly proved, would be the very best evidence of what occurred.

The above excerpt from the Army & Navy case was referred to in Greenough v. Woodstream Corp., [1991] O. J. No. 77, 24 A. C. W. S. (3d) 1253 (Ont. Ct. (Gen. Div.)). In that case Fleury J. of the Ontario Court of Justice accepted in evidence a videotape film taken by a hidden camera. On the basis of the videotape alone he found that an employee had engaged in theft from his employers.

In light of the current state of the jurisprudence, I do not believe it appropriate at this stage of the proceedings to reach any conclusion as to whether the videotape sought to be introduced by the employer can only be used to clarify the evidence given by a witness, or whether it might be relied on as a “silent witness.”

Counsel for the guild contended that as a matter of general principle electronic surveillance is an invasion of privacy and on this basis the videotape should not be admitted into evidence. In support of this position counsel relied primarily on Puretex Knitting Co. v. Canadian Textile & Chemical Union (1979), 23 L. A. C. (2d) 14 (Ellis). This was an interest arbitration award which addressed the question of whether the company should be required to remove closed-circuit surveillance cameras from the work place. The cameras, which were not hidden and had no videotaping capability, had been installed for the purpose of deterring theft.

In his award arbitrator Ellis reviewed much of the relevant American and Canadian case-law. He started with the American case of Electronic Instrument Co. Inc. v. Int’l Union of Electrical, Radio & Machine Workers, Loc. 431 (1965), 44 L. A. 563 (Delany), which has come to be known as the EICO case. In the EICO case arbitrator Delany concluded that the installation of closed-circuit television cameras, which constantly monitored employees as they worked, was in violation of a collective agreement provision which required that working conditions beneficial to employees be maintained. In doing so he commented as follow at p. 564 [at p. 25 of Puretex]:

   “The device at hand is not only personally repugnant to the employees, but it has such an inhibiting effect as to prevent the employees from performing their work with confidence and ease. Every employee has occasion to pause in the course of his work to take a ‘breather,’ to scratch his head, to yawn, or otherwise be himself without affecting his work. An employee, with reason, would hesitate at all times to so behave, if his every action is being recorded on TV.

   “To have workers constantly televised is, to me, reminiscent of the era depicted by Charlie Chaplin in ‘Modern Times,’ and constitutes in my mind an affront to the dignity of man.”

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Arbitrator Ellis also referred to a number of cases where television surveillance was held not to violate the relevant collective agreement. One of these was U. A. W., Loc. 707 v. Ford Motor Co. of Canada Ltd. (1971), 23 L. A. C. 96 (Weatherill), where the use of closed-circuit television at the gates to the company’s plant in Oakville was held not to violate the collective agreement. In his award Mr. Weatherill indicted his general approval of the EICO decision but also noted that in the case before him the use of television cameras could not be regarded as offensive, embarrassing or improper for reasons of that sort.

Arbitrator Ellis referred to one other Canadian case, namely Liberty Smelting Works (1962) Ltd. v. U. A. W., Loc. 1470 (1972), 3 S. A. G. 1035 (Dulude). While indicating his general agreement with the EICO decision, arbitrator Dulude held that because of a serious theft problem the company could, subject to certain conditions, use closed-circuit television cameras in its production areas.

In the Puretex case arbitrator Ellis concluded that the propriety of using surveillance cameras at work depended on a balancing of competing considerations. In this regard he reasoned as follows at p. 30:

   It is clearly a matter of balancing competing considerations after recognizing that the use of cameras that observe employees at work is intrinsically seriously objectionable in human terms, with the degree of objection depending on the way the cameras are deployed and the purpose for which they are used and ranging from unacceptable in the case of constant surveillance of conduct and work performance to probably non-objectionable in the case of short-term individual applications for training purposes.

In applying these principles to the case before him, arbitrator Ellis concluded that the use of cameras in the company’s production areas was not justified and, accordingly, he directed that they be removed. He did, however, allow cameras to remain in the company’s loading dock and storage areas where they were used for security purposes.

A more recent case which addressed the privacy issue was Doman Forest Products Ltd. v. I. W. A., Loc. 1-357 (1990), 13 L. A. C. (4th) 275 (Vickers). That case arose out of the discharge of an employee who had taken time off from work claiming to be ill. At arbitration the company sought to lead oral and videotape evidence concerning the employee’s activities while he was under surveillance by a private investigator. The union objected to the admission of this evidence on the grounds that the surveillance had been a breach of the employee’s right to privacy.

Arbitrator Vickers accepted that the employee had a right to privacy but also held that this right had to be weighed against the company’s right to investigate what it might consider to be an abuse of sick leave. He concluded that he could not determine whether the employee’s right to privacy had been abused until he had heard all of the evidence, including what had been observed visually or electronically. Part of his reasoning was as follows, at pp. 231-2:

   In my opinion, it is a balancing of interests that is required. The employee’s right to privacy weighed against the company’s right to investigate what it might consider to be an abuse of sick leave. Questions to be answered include:

   (1)   Was it reasonable, in all of the circumstances, to request a surveillance?

   (2)   Was the surveillance conducted in a reasonable manner?

   (3)   Were other alternatives open to the company to obtain the evidence it sought?

   I have concluded that I cannot determine whether the grievor’s right to privacy has been abused until I have heard all of the evidence, including what was done and what was observed, whether visually or electronically. It would be dangerous at this stage of the proceedings to rule evidence inadmissible where I have not had a full opportunity to consider all of the circumstances. Only then can I truly balance the interests. If upon hearing the evidence, I am satisfied that there has been an invasion of privacy in circumstances which were unreasonable, I would then not hesitate to rule the evidence inadmissible.

   Accordingly, my decision at this point in the proceedings is that the evidence is to be called subject to the objections of the union, which I will rule upon in my final award.

In a subsequent unreported award dated November 6, 1990 [summarized 21 C. L. A. S. 479], arbitrator Vickers ruled that the evidence gathered by the private investigator was inadmissible. In his view there had not been sufficient evidence to warrant surveillance of the employee and the employer’s suspicions concerning the employee’s conduct could have been demystified by questioning the employee.

The approach adopted in Doman Forest Products was followed in Steels Industrial Products v. Teamsters Union, Loc. 213 (1991), 24 L. A. C. (4th) 259 (Blasina). That case dealt with an employee who, while off on workers’ compensation, was videotaped by a private investigator at a construction site. The arbitrator addressed the issue of the admissibility of the videotape as follows at pp. 276-7:

   I agree that the question of whether or not to admit video surveillance is one of balancing interests. I would not think that the right to privacy and the employer’s right to investigate are necessarily equally weighted, particularly in the area of surreptitious surveillance. An arbitrator must make a qualitative assessment, and he would have to be satisfied that in the circumstances the employer’s interest reasonably outweighs the employee’s right to privacy—and, indeed, a free society’s interest that all individuals can live in privacy without undue or unnecessary monitoring by a third party. The analysis of the problem, in my view, can be encompassed in the first two questions posed by arbitrator Vickers, namely:

   (1)   Was it reasonable, in all of the circumstances, to request a surveillance?

   (2)   Was the surveillance conducted in a reasonable manner?

Partly on the basis of the employee’s past history, arbitrator Blasina determined that a foundation existed for reasonably suspecting the employee of fraudulent leave from work, that in the circumstances it was reasonable for the company to retain an agent to engage in surreptitious video surveillance of the employee and, accordingly, the videotape could properly be admitted into evidence.

The above cases indicate that an employer generally does not have the right to intrude on an employee’s privacy by videotaping his or her conduct. An employee’s right to privacy, however, is not absolute and in certain circumstances the employer’s interests may outweigh an employee’s right to privacy. In order for an employer to establish that this is the case, it must demonstrate that it was reasonable for it to resort to surveillance and also that the surveillance was conducted in a reasonable manner. In the instant case I will only be able to determine whether or not these conditions have been met after I have heard evidence relating to why and how the videotape was made.

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The unfair labour practice issue

The guild contends that the videotape should not be admitted into evidence because the surveillance of union activity, including picketing, is an unlawful interference with employee rights. In this regard it contends that the use of video cameras to film the picketers would have had a chilling effect on them and tended to dissuade them from exercising their right to picket. In support of its position the guild relies on the decision of the Ontario Labour Relations Board in K-Mart Canada Ltd. (Peterborough) v. S. E. I. U., Loc. 183 (1981), 81 C. L. L. C. ¶16,084, [1981] O. L. R. B. Rep. Jan. 60, including the following excerpt from p. 14,732:

   In this case the Board must first consider the impact of the open and continuous surveillance of two employees who were the spearhead of the union organizing campaign. Spying on employees is not new to the catalogue of unfair labour practices resorted to by employers who are extreme in their determination to stop their employees from exercising their collective bargaining rights. This Board has previously found instances of covert surveillance to be unlawful interference with the rights of employees under the Act; (see, for example, Radio Shack, [1979] OLRB Rep. Mar. 248 [80 CLLC ¶16,003). In its very first reported decision the National Labour Relations Board was confronted with the tactic of surveillance as a method of discouraging union activity. From that time to the present, with the endorsement of the Courts, the NLRB has consistently found surveillance or the attempt to create the impression of surveillance of union activity to be unlawful interference with the rights of union association expressly protected by law (see Pennsylvania Greyhound Lines Inc. 1 NLRB 1 (1935) at p. 22; A. & R. Transport Inc. v. N. L. R. B. 101 LRRN 2856 (C. A. 7, 1979) and the Delchamps and Redwing cases, supra).

The surveillance referred to in the K-Mart case involved management trainees constantly following two employees who were the in-plant leaders of a union organizing campaign. In its decision the board indicated as follows at p. 14,732: that in other circumstances surveillance can legitimately be used in the work place.

   Surveillance can have a legitimate application in the work place. An employer may, for example, have to use one form or another of surveillance to protect its property against theft and vandalism or to monitor machinery and processes to ensure the safety of employees. In Ontario, however, an employer may not use surveillance to intimidate employees from exercising their rights under The Labour Relations Act.

The above excerpts indicate that in some circumstances the surveillance of employees will amount to an unlawful labour practice under the Labour Relations Act, R. S. O. 1990, c. L.2, while in other circumstances it will not. I cannot determine whether the videotaping activity in this case violated the Act until I have heard evidence as to why videotaping was resorted to and the circumstances under which the videotape was made.

If you could tell me about your own insight, I would appreciate it. Thank you.

Answer
Dear Fahad,

I have placed my responses below your in sections.  You will find my responses inside brackets [ ].

Key issues of the case:

The grievor was discharged during a lawful strike of employees against the employer. The employer contends that he was discharged because he intentionally damaged and interfered with two Toronto Star vehicles as well as with the vehicle of a supplier. The discharge was subsequently reduced to a suspension of thirty calendar days without pay. The guild contends that the suspension was unfair, unreasonable and a violation of the collective agreement between the parties.  

[I’d need to review the collective agreement to make a determination if the employer’s actions were or were not in violation of said agreement.  I’d also need to perform a review of documents between the union and the employer to see what constitutes a lawful strike to see if this strike did or did not conform to any and all terms that allows for a lawful strike.]

The employer wishes to place in evidence a videotape which it contends records two of the incidents which led to the grievor being disciplined. At the hearing, counsel for the employer indicated that he intended to introduce the videotape through the person who had taken it. Employer counsel did not dispute the guild’s contention that the incidents allegedly depicted on the videotape took place in connection with picketing activity by striking employees.

[Allow me to repeat this as a question.  The guild contended that the incidents allegedly depicted on the videotape took place in connection with picketing activity by striking employees?  First of all, “allegedly” is a term that shall not be used when actual video evidence is available.  When video evidence is available, “allegedly” cannot be used since there is actual proof of the happening.  Now, whether or not the grievor is clearly depicted in that video, could be disputed but, the events themselves are no longer open to dispute – there is visual evidence of them happening.  Secondly, you’ve stated that the guild actually admitted to the event(s) happening.  Is that what you meant to say?  I ask because the employer now has video evidence of the events as well as the guild admitting that the events did happen but – they happened in connection with picketing activity.  Is damaging employer property allowed when it’s done in connection with picketing activity?  I’d have to review the terms of the contract between the employer and the guild to see if damaging property in connection with picketing is an allowable activity.]

The guild objects to the introduction of the videotape on three main grounds. These are that: (1) it is a form of unreliable hearsay; (2) the surveillance associated with the making of the videotape was an invasion of employees’ privacy; and (3) the surveillance of employees involved an unfair labour practice. The guild further contends that a videotape can only be used to clarify viva voce evidence given by a witness and, accordingly, the videotape is unnecessary to the employer’s case.

[Hearsay is exactly that – I heard something and I repeated it.  What I repeat may not be exactly what it was that was said to me but will more than likely be my personal interpretation of what was said to me.  Video evidence is not hearsay.  Video evidence is a recording of an actual event.  If I go to a baseball game and videotape someone hitting a home run and then show that videotape to a group of people, can someone viewing the videotape tell me, and everyone else, that the homerun was never hit?  Sure, they can say anything they like but, the fact of the matter is, the guy hit a home run and I have evidence of it.]

[Who took the video?  You stated earlier that the counsel for the employer wanted to introduce the video as evidence from the person who took the video.  Who took the video?  The employer, an employee or a third party?  My next question is… is it an invasion of an employee’s privacy if I, as the employer, routinely conduct surveillance of my property and equipment as a safeguard against theft, vandalism and damage?  Again, who took the video?  The person who took the video has not been identified.  As far as video taping employees being an unfair labor practice – again, I’d have to review the terms of the contractual agreement between the guild and the employer, however, this video may have been taken while equipment and or property was being damaged and not necessarily taken as a video of employee surveillance but rather as routine and normal video captured to protect the employer’s investment in property and equipment.  Or, perhaps the video was taken by a bystander who just happened to witness and record the event or maybe the video was taken by some other employee who just wanted to “capture the moment”, or, maybe the video was taken by the employer while the incident occurred.  Unfortunately, a person was seen in those videos, damaging the equipment/property of the employer.  Where do employee’s rights end and an employer’s rights begin?  That’s a tricky question.  Who took the video?]

I have not viewed the videotape. My understanding of the guild’s position is that I can and should rule against receiving the videotape without having viewed it.

[The guild is correct.  They want you to rule against the videotape without seeing it – for a number of reasons.  However, you have to ask yourself this question, if the videotape proved the guild’s point, wouldn’t they want you to view it?  Of course they would.  The main reason they don’t want you to view the tape is because it most likely implicates one of their members in a vandalistic act.]

Counsel for the guild contended that a videotape is a form of hearsay. He further submitted that it is inherently unreliable. In this regard, he referred to the situation of a football game where the question of whether a particular player was out of bounds depends on the angle at which one viewed the play. He noted that unlike a witness he cannot cross-examine a videotape to clarify matters.

[I’m so glad you brought this up.  I wrote my story above, about the guy in a baseball game hitting a homerun, before I read this part of your statement.  The fact of the matter is – that many plays are recalled to the booth for examination of the video and the video oftentimes overrules the call of the field judge for that very reason, the video does not lie.  A tape measure does not lie.  Not to intimate that a field judge would lie but, the field judge has to make a call in a matter of milliseconds and he may not be in the best possible position from which to make an accurate call.  That’s precisely why they go to video if the call is challenged.  A video is the actual event as it happened.  There is the possibility that the video was not taken at a close enough distance or the proper angle to accurately define the event but, if the grievor is clearly seen damaging property/equipment of the employer, he/she can deny it all he/she wants to deny it but the video tape is the actual evidence.  Cameras and tape measures don’t lie. My father took movies of us when we were kids and they have since been transferred to DVD.  Should I doubt that those videos are actually of me doing whatever it was I did in those videos as a child?  Should I?  Is that not really me doing whatever it was I was doing?  It’s a real bummer that my father spent all that time and energy capturing us as kids on film only to find out that that’s not what really happened.  Too bad my dad has passed away, otherwise, I could tell him that that’s not really me in those movies and what I was doing in those movies never really happened.]

Guild counsel also noted that the reliability of a videotape can be affected by technical defects, tampering, editing and running it faster or slower than the action it depicts. He submitted that because of the inherent unreliability of a videotape, even if it is not hearsay I should refuse to accept it into evidence.

[If the video is affected by technical defects then the guild member should have no worries.  If it is unclear as to what happened and/or who allegedly did the damage, then, they have a case.  However, if the video is clear enough to ascertain the identity of the perpetrator, well then, I’d say there could be a case.  I’d need to see the video.]

The courts have applied the criteria for determining the admissibility of still photographs to videotapes. The essential criteria for admissibility are: (1) accuracy in representing the facts; (2) fairness and absence of any intention to mislead; and (3) verification by a person capable of doing so: see R. v. Creemer and Cormier, [1968] 1 C. C. C. 14, [1965-69] 4 N. S. R. 546, 1 C. R. N. S. 146 (N. S. C. A.).

The contention that the hearsay rule applies to videotape material was expressly rejected in Simpson Timber Co. (Saskatchewan) v. Bonville, [1986] 5 W. W. R. 180 (Sask. Q. B.), where the court held as follows at p. 188:

  At the heart of admissibility of these videotape films is whether I am satisfied that there is some evidence upon which I might reasonably be certain that they are an accurate reproduction of what they purport to reproduce and they are of a content and quality that they will not mislead or prejudice but rather assist in providing relevant evidence. Any controversy as to accuracy goes to weight and not admissibility. This evidence, with respect, has nothing to do with the hearsay rule as suggested by counsel for the respondents. Is the tape authentic? If so, it is admissible.

The admissibility of videotape material which does not accurately represent the facts was considered by two Ontario County Court judges when considering criminal charges laid against professional hockey players. In R. v. Maloney (No. 2) (1976), 29 C. C. C. (2d) 431, videotape film depicting certain events at their actual speed and in the proper sequence was accepted into evidence. Slow-motion film and film containing excerpts which were out of sequence, however, were not accepted. In R. v. Williams (1977), 35 C. C. C. (2d) 103, a videotape was accepted into evidence when shown at normal speed. Parts of the same tape when shown in slow motion, however, were held not to be admissible in evidence.

I believe the approach taken by the courts to be appropriate in these proceedings. Thus the videotape sought to be introduced by the employer will be admissible if it accurately represents the facts, it is fair and was prepared without any intention to mislead and its authenticity has been verified by a witness capable of doing so. In deciding whether or not these criteria have been met, logically I will be required to view the videotape.


The general rule respecting still photographs is that they can only be introduced in evidence for the purpose of clarifying oral testimony. It was on this basis that the courts initially admitted films and videotapes into evidence. In Army & Navy Department Store (Western) Ltd. v. Retail Wholesale & Department Store Union, Local No. 535, [1950] 2 D. L. R. 850, 97 C. C. C. 258, [1950] 2 W. W. R. 999 (B. C. S. C.), Mr. Justice Farris accepted a moving picture for the purpose of clarifying certain oral evidence. He then indicated that in the future moving pictures might themselves be relied on as evidence. In this regard he commented as follows at p. 853:

[Make a note of what you’ve said here.  They (the court) accepted a video/pictures introduced for the purpose of clarifying oral testimony.  Remember what I said above about hearsay.  Video and pictures do not lie.  If you can prove your point with pictures and/or video, then do so.  If the pictures or video damage your case, then you’ll do everything under the sun to suppress them.  That’s exactly why the guild wanted you to make your case without seeing the video.]

  With the scientific development of moving pictures, there might arise, in the future, an action when the pictures themselves, properly proved, would be the very best evidence of what occurred.

The above excerpt from the Army & Navy case was referred to in Greenough v. Woodstream Corp., [1991] O. J. No. 77, 24 A. C. W. S. (3d) 1253 (Ont. Ct. (Gen. Div.)). In that case Fleury J. of the Ontario Court of Justice accepted in evidence a videotape film taken by a hidden camera. On the basis of the videotape alone he found that an employee had engaged in theft from his employers.

In light of the current state of the jurisprudence, I do not believe it appropriate at this stage of the proceedings to reach any conclusion as to whether the videotape sought to be introduced by the employer can only be used to clarify the evidence given by a witness, or whether it might be relied on as a “silent witness.”

Counsel for the guild contended that as a matter of general principle electronic surveillance is an invasion of privacy and on this basis the videotape should not be admitted into evidence. In support of this position counsel relied primarily on Puretex Knitting Co. v. Canadian Textile & Chemical Union (1979), 23 L. A. C. (2d) 14 (Ellis). This was an interest arbitration award which addressed the question of whether the company should be required to remove closed-circuit surveillance cameras from the work place. The cameras, which were not hidden and had no videotaping capability, had been installed for the purpose of deterring theft.

In his award arbitrator Ellis reviewed much of the relevant American and Canadian case-law. He started with the American case of Electronic Instrument Co. Inc. v. Int’l Union of Electrical, Radio & Machine Workers, Loc. 431 (1965), 44 L. A. 563 (Delany), which has come to be known as the EICO case. In the EICO case arbitrator Delany concluded that the installation of closed-circuit television cameras, which constantly monitored employees as they worked, was in violation of a collective agreement provision which required that working conditions beneficial to employees be maintained. In doing so he commented as follow at p. 564 [at p. 25 of Puretex]:

  “The device at hand is not only personally repugnant to the employees, but it has such an inhibiting effect as to prevent the employees from performing their work with confidence and ease. Every employee has occasion to pause in the course of his work to take a ‘breather,’ to scratch his head, to yawn, or otherwise be himself without affecting his work. An employee, with reason, would hesitate at all times to so behave, if his every action is being recorded on TV.

[That’s a great argument - but not true at all.  Any and all workers who are confident that they are doing what is expected of them would have no qualms about being videotaped in this fashion.  It is only those employees who are not doing their job, or not doing their job as required, that will have a  problem with this. Ask yourself this question… “If I’m on the job, doing what I’m supposed to do and I get the job done in the timeframe and in the quality that the employer expects, then who cares if I’m scratching my head or leaving for a coffee break?  Seriously, who cares?  The employer wants the job done.  If you can do 8 hours worth of work in 3 hours, the employer doesn’t care, they got 8 hours worth of work and that’s what they paid you for.  Now, the employer could easily argue the point that if you can do 8 hours worth of work in 3 hours, “I want more production”.  And, that request might be justified depending on the work environment and the surrounding circumstances.]

  “To have workers constantly televised is, to me, reminiscent of the era depicted by Charlie Chaplin in ‘Modern Times,’ and constitutes in my mind an affront to the dignity of man.”

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Arbitrator Ellis also referred to a number of cases where television surveillance was held not to violate the relevant collective agreement. One of these was U. A. W., Loc. 707 v. Ford Motor Co. of Canada Ltd. (1971), 23 L. A. C. 96 (Weatherill), where the use of closed-circuit television at the gates to the company’s plant in Oakville was held not to violate the collective agreement. In his award Mr. Weatherill indicted his general approval of the EICO decision but also noted that in the case before him the use of television cameras could not be regarded as offensive, embarrassing or improper for reasons of that sort.

Arbitrator Ellis referred to one other Canadian case, namely Liberty Smelting Works (1962) Ltd. v. U. A. W., Loc. 1470 (1972), 3 S. A. G. 1035 (Dulude). While indicating his general agreement with the EICO decision, arbitrator Dulude held that because of a serious theft problem the company could, subject to certain conditions, use closed-circuit television cameras in its production areas.

In the Puretex case arbitrator Ellis concluded that the propriety of using surveillance cameras at work depended on a balancing of competing considerations. In this regard he reasoned as follows at p. 30:

  It is clearly a matter of balancing competing considerations after recognizing that the use of cameras that observe employees at work is intrinsically seriously objectionable in human terms, with the degree of objection depending on the way the cameras are deployed and the purpose for which they are used and ranging from unacceptable in the case of constant surveillance of conduct and work performance to probably non-objectionable in the case of short-term individual applications for training purposes.

In applying these principles to the case before him, arbitrator Ellis concluded that the use of cameras in the company’s production areas was not justified and, accordingly, he directed that they be removed. He did, however, allow cameras to remain in the company’s loading dock and storage areas where they were used for security purposes.

A more recent case which addressed the privacy issue was Doman Forest Products Ltd. v. I. W. A., Loc. 1-357 (1990), 13 L. A. C. (4th) 275 (Vickers). That case arose out of the discharge of an employee who had taken time off from work claiming to be ill. At arbitration the company sought to lead oral and videotape evidence concerning the employee’s activities while he was under surveillance by a private investigator. The union objected to the admission of this evidence on the grounds that the surveillance had been a breach of the employee’s right to privacy.

Arbitrator Vickers accepted that the employee had a right to privacy but also held that this right had to be weighed against the company’s right to investigate what it might consider to be an abuse of sick leave. He concluded that he could not determine whether the employee’s right to privacy had been abused until he had heard all of the evidence, including what had been observed visually or electronically. Part of his reasoning was as follows, at pp. 231-2:

  In my opinion, it is a balancing of interests that is required. The employee’s right to privacy weighed against the company’s right to investigate what it might consider to be an abuse of sick leave. Questions to be answered include:

  (1)   Was it reasonable, in all of the circumstances, to request a surveillance?

  (2)   Was the surveillance conducted in a reasonable manner?

  (3)   Were other alternatives open to the company to obtain the evidence it sought?

  I have concluded that I cannot determine whether the grievor’s right to privacy has been abused until I have heard all of the evidence, including what was done and what was observed, whether visually or electronically. It would be dangerous at this stage of the proceedings to rule evidence inadmissible where I have not had a full opportunity to consider all of the circumstances. Only then can I truly balance the interests. If upon hearing the evidence, I am satisfied that there has been an invasion of privacy in circumstances which were unreasonable, I would then not hesitate to rule the evidence inadmissible.

  Accordingly, my decision at this point in the proceedings is that the evidence is to be called subject to the objections of the union, which I will rule upon in my final award.

In a subsequent unreported award dated November 6, 1990 [summarized 21 C. L. A. S. 479], arbitrator Vickers ruled that the evidence gathered by the private investigator was inadmissible. In his view there had not been sufficient evidence to warrant surveillance of the employee and the employer’s suspicions concerning the employee’s conduct could have been demystified by questioning the employee.


The approach adopted in Doman Forest Products was followed in Steels Industrial Products v. Teamsters Union, Loc. 213 (1991), 24 L. A. C. (4th) 259 (Blasina). That case dealt with an employee who, while off on workers’ compensation, was videotaped by a private investigator at a construction site. The arbitrator addressed the issue of the admissibility of the videotape as follows at pp. 276-7:

  I agree that the question of whether or not to admit video surveillance is one of balancing interests. I would not think that the right to privacy and the employer’s right to investigate are necessarily equally weighted, particularly in the area of surreptitious surveillance. An arbitrator must make a qualitative assessment, and he would have to be satisfied that in the circumstances the employer’s interest reasonably outweighs the employee’s right to privacy—and, indeed, a free society’s interest that all individuals can live in privacy without undue or unnecessary monitoring by a third party. The analysis of the problem, in my view, can be encompassed in the first two questions posed by arbitrator Vickers, namely:

  (1)   Was it reasonable, in all of the circumstances, to request a surveillance?

Who took the video?

  (2)   Was the surveillance conducted in a reasonable manner?


Partly on the basis of the employee’s past history, arbitrator Blasina determined that a foundation existed for reasonably suspecting the employee of fraudulent leave from work, that in the circumstances it was reasonable for the company to retain an agent to engage in surreptitious video surveillance of the employee and, accordingly, the videotape could properly be admitted into evidence.


The above cases indicate that an employer generally does not have the right to intrude on an employee’s privacy by videotaping his or her conduct. An employee’s right to privacy, however, is not absolute and in certain circumstances the employer’s interests may outweigh an employee’s right to privacy. In order for an employer to establish that this is the case, it must demonstrate that it was reasonable for it to resort to surveillance and also that the surveillance was conducted in a reasonable manner. In the instant case I will only be able to determine whether or not these conditions have been met after I have heard evidence relating to why and how the videotape was made.

[Here’s the bottom line… someone destroyed company property and they were caught on videotape doing it.  Last I checked, vandalism is a crime.  End of story.  It doesn’t matter how you were caught, you were caught.  It really boils down to the video tape.  Can we make out the identity of the perpetrator and can we prove through the video that they damaged the company’s property?  If so, was the video shot within the parameters of the contractual agreement of the parties?]

[Without seeing the video and reviewing the contracts, I cannot comment.  However, based on what you’ve put forth, I’d have to say that the guild is trying to cover something up.]



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The unfair labour practice issue

The guild contends that the videotape should not be admitted into evidence because the surveillance of union activity, including picketing, is an unlawful interference with employee rights. In this regard it contends that the use of video cameras to film the picketers would have had a chilling effect on them and tended to dissuade them from exercising their right to picket. In support of its position the guild relies on the decision of the Ontario Labour Relations Board in K-Mart Canada Ltd. (Peterborough) v. S. E. I. U., Loc. 183 (1981), 81 C. L. L. C. 16,084, [1981] O. L. R. B. Rep. Jan. 60, including the following excerpt from p. 14,732:

  In this case the Board must first consider the impact of the open and continuous surveillance of two employees who were the spearhead of the union organizing campaign. Spying on employees is not new to the catalogue of unfair labour practices resorted to by employers who are extreme in their determination to stop their employees from exercising their collective bargaining rights. This Board has previously found instances of covert surveillance to be unlawful interference with the rights of employees under the Act; (see, for example, Radio Shack, [1979] OLRB Rep. Mar. 248 [80 CLLC 16,003). In its very first reported decision the National Labour Relations Board was confronted with the tactic of surveillance as a method of discouraging union activity. From that time to the present, with the endorsement of the Courts, the NLRB has consistently found surveillance or the attempt to create the impression of surveillance of union activity to be unlawful interference with the rights of union association expressly protected by law (see Pennsylvania Greyhound Lines Inc. 1 NLRB 1 (1935) at p. 22; A. & R. Transport Inc. v. N. L. R. B. 101 LRRN 2856 (C. A. 7, 1979) and the Delchamps and Redwing cases, supra).

The surveillance referred to in the K-Mart case involved management trainees constantly following two employees who were the in-plant leaders of a union organizing campaign. In its decision the board indicated as follows at p. 14,732: that in other circumstances surveillance can legitimately be used in the work place.

  Surveillance can have a legitimate application in the work place. An employer may, for example, have to use one form or another of surveillance to protect its property against theft and vandalism or to monitor machinery and processes to ensure the safety of employees. In Ontario, however, an employer may not use surveillance to intimidate employees from exercising their rights under The Labour Relations Act.

The above excerpts indicate that in some circumstances the surveillance of employees will amount to an unlawful labour practice under the Labour Relations Act, R. S. O. 1990, c. L.2, while in other circumstances it will not. I cannot determine whether the videotaping activity in this case violated the Act until I have heard evidence as to why videotaping was resorted to and the circumstances under which the videotape was made.

If you could tell me about your own insight, I would appreciate it. Thank you.

[As you’ve stated, “Surveillance can have a legitimate application in the work place. An employer may, for example, have to use one form or another of surveillance to protect its property against theft and vandalism or to monitor machinery and processes to ensure the safety of employees. In Ontario, however, an employer may not use surveillance to intimidate employees from exercising their rights under The Labour Relations Act.”  In this instance it appears that the employer was utilizing surveillance to protect its property from damage and not as a means to intimidate an employee.  Without viewing the videotape and being able to review the contractual agreements between the employee and employer, it would be difficult to render a just verdict in this case.  Upon review of those items, I would offer a determination.]

I hope you get to view the necessary evidence and make a fair judgement.

David