Novel Action Brought in Federal Court of Canada for Relief Against Video Surveillance — Privacy Commissioner Investigates Similar Facts

An employee of CP Rail, who is also a union local representative, has commenced an action in the Federal Court of Canada to attempt to stop his employer from using video surveillance cameras at its maintenance shop located in Toronto, Ontario (Eastmond v Canadian Pacific Railway and Privacy Commissioner of Canada). The applicant, Erwin Eastmond, added Canada's Privacy Commissioner as a respondent in the action. The action seeks the removal of the cameras, the destruction of the recorded material and the cessation of further installations without the consent of the union which represents the employees, the National Automotive, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada). Also, the applicant sought an order to carry out the recommendations of the Privacy Commissioner regarding video surveillance by CP Rail (see the outline below of these findings). According to counsel for CP Rail, the cameras used by the company at the Toronto maintenance yard record on a 96-hour rotation and then tape over the previous material. The company views the tapes only if there is an incident that needs confirmation or follow-up. Before the Federal Court, the company argued that the sole forum in which surveillance claims could be heard was within a grievance arbitration under its collective agreement with CAW-Canada. Following a hearing in Toronto on April 19, 2004, Justice François Lemieux reserved judgment. Independently of the Federal Court proceeding, two CP Rail employees had filed a complaint with the Privacy Commissioner of Canada to the effect that video cameras ordinarily used for operational purposes to record train movements were used to monitor two employees who were leaving company premises during regular working hours, something for which they were later disciplined. These cameras did not record; rather, they permitted "live" observation of railway property and had a zoom capacity which was used to determine that the employees were going off-site. The employer argued that the filing of a grievance under the relevant collective agreement ousted the jurisdiction of the Privacy Commissioner to investigate the complaint. However, the Privacy Commissioner disagreed. On February 19, 2004, the Privacy Commissioner made a finding that the complaints were well-founded and that the use of the video camera contravened s 5(3) of the Personal Information Protection and Electronic Documents Act. This latter provision permits the collection, use or disclosure of personal information "only for purposes that a reasonable person would consider are appropriate in the circumstances". The Commissioner ruled, first, that the use of the video camera constituted a collection of the employee's personal information without their consent, noting that the definition of personal information was not restricted to information that is recorded. Second, the Commissioner felt that the decision to use the video camera to determine that the employees were leaving the yard during work hours was inappropriate under the circumstances, determining that a reasonable person would not consider it appropriate to use the cameras to manage a workplace performance issue. The Commissioner indicated that the company had failed to present any evidence to illustrate that the unauthorized absences were a persistent problem or that less obtrusive methods had been employed to manage the problem of unauthorized absences; nor did it indicate that there was a possible breach in the relationship of trust with the employees to justify the collection of the employees' personal information without their consent. According to the Commissioner, the video camera was highly intrusive, and where there was a less intrusive method for achieving the same result, it should be the first avenue of recourse. To view two decisions of the federal Office of the Privacy Commissioner relating to the claims noted above, see: http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040219_02_e.asp; and http://www.privcom.gc.ca/cf-dc/2003/cf-dc_030123_e.asp. For a newspaper report on the Federal Court action, see: http://makeashorterlink.com/?F28621238. Summary by: Colin Adams