Application to Enforce Privacy Commissioner's Finding on Video Surveillance Dismissed by Federal Court of Canada

In a proceeding (Eastmond v Canadian Pacific Railway and Privacy Commissioner of Canada) outlined in some detail in an earlier issue of E-TIPS™ (Vol 2 No 24 May 12, 2004), on June 11, 2004, Justice François Lemieux of the Federal Court (Trial Division) held that, contrary to an earlier ruling by the Privacy Commissioner, the action by Canadian Pacific Railway (CP Rail) in using video surveillance cameras to monitor a rail yard in Toronto did not violate the Personal Information and Electronic Documents Act (PIPEDA), and the Court declined to order any relief against the conduct complained of. The proceeding was brought under section 14 of PIPEDA by the applicant, Erwin Eastmond, following a finding in his favour and against his employer, CP Rail, by the Privacy Commissioner and relating to this same practice of video surveillance which was instituted, according to CP Rail, in order to discourage theft and vandalism at the rail yard. In the course of his reasons for judgement, Justice Lemieux made a number of significant findings. First, he ruled that even though the conduct complained of had become the subject of a grievance under a collective agreement, once the mandatory language of PIPEDA was engaged by the making of a section 14 application, the Federal Court's jurisdiction was not ousted by any use of a parallel grievance procedure under a collective agreement (the Court characterized PIPEDA as a "fundamental law of Canada" and found the dispute in question not to arise from the collective agreement). Second, on such an application, the proceedings before the Federal Court judge are in the nature of a de novo proceeding on fresh evidence. Third, the Court approved in principle the four-part test outlined by the Privacy Commissioner to determine whether the information at issue was collected for "appropriate purposes" within the meaning of section 5(3) of PIPEDA. Fourth, CP Rail had established that it had a legitimate need to use surveillance cameras to discourage theft and vandalism in the surrounding area. Fifth, CP Rail was able to take the benefit of the exemption in section 7(1)(b) of PIPEDA (permitting the collection of information without notice to and consent of those under surveillance) because to require such notice and consent might compromise the availability or accuracy of the information (from supposed thieves and vandals), and the collection of the information was reasonable as relating to an investigation of activity that was unlawful (the same threatened theft and vandalism). For the reason for judgment in the Eastmond case (2004 FC 852), see: http://makeashorterlink.com/?C55445F98. Summary by: Amy-Lynne Williams If you have questions regarding any aspect of the application of Canada's privacy legislation, contact Michael Erdle (merdle@dww.com) or Amy-Lynne Williams (awilliams@dww.com).