Digests

Eastmond v. Canadian Pacific Railway

T-309-03

2004 FC 852, Lemieux J.

11/6/04

81 pp.

CPR installed 6 digital video recording surveillance cameras at its Scarborough, Ontario rail classification and maintenance yard, site of diesel, car repair shops--Applicant was CP employee, union member and diesel shop's human rights representative--Filed complaint with Office of Privacy Commissioner under Personal Information and Electronic Documents Act (PIPEDA) that CPR's recent installation of cameras focussed on door entrances, exits unacceptable as done without union consultation, unjustified by any security problem, invasion of privacy, could be used to monitor workers' conduct, bad for morale--Demanded cameras be dismantled forthwith--Union had already filed grievance under Art. 28 of collective agreement, alleging human rights violation--CP later posted bulletin advising cameras installed, would soon begin taping, purposes to protect against theft, vandalism, unauthorized personnel, related incidents, with viewing to be restricted to certain managers, CP Police-- No intention to use cameras for productivity issues-- Purposely positioned away from work areas, focussed on general areas to which employees, non-employees have access --Entrance areas had signs warning facility protected by video and electronic surveillance--Privacy Commissioner determined complaint well-founded, recommended removal of cameras--Privacy Commissioner explained that under PIPEDA, s. 5(3) necessary to ask whether circumstances such as to merit video surveillance solution--Applied four-part test: (1) whether measure necessary to meet specific need; (2) whether likely to be effective; (3) whether loss of privacy proportional to benefit; (4) whether less privacy-invasive way of achieving end--Concluded CP had not demonstrated specific problem; not proved cameras definite deterrent; their mere presence gave rise to perception workers' comings, goings being watched perhaps with negative psychological effects; CP failed to evaluate alternatives such as better lighting to address employee security issue--Applicant then initiated instant proceeding under PIPEDA, s. 14(1): after Commissioner's report, complainant may apply to Court for hearing re: any matter complained of, referred to in report-- Under s. 17, application to be determined without delay, in summary way unless Court considers this inappropriate-- Applicant sought various reliefs, including order confirming Privacy Commissioner's report--PIPEDA evidences unique legislative structure, having schedule incorporating Canadian Standards Association (CSA)'s Model Code for Protection of Personal Information, while Act itself qualifies, modifies model code's principles--Relevant statutory provisions set forth--Evidence reviewed at length--CPR official who decided to install cameras swore in affidavit purpose to serve as deterrent against theft, harassment, vandalism, unauthorized entry, create safer workplace, minimize railway's exposure to liability for damages suffered by third parties--Action instigated not by specific event but by change to overall infrastructure of mechanical facility--Another reason for decision: tension between unionized CPR employees, contract supervisors who oversee repair, maintenance of locomotives-- Rejected hiring security guards as impossible to obtain budgetary approval--Cheaper to install cameras, post warning signs--Crimes committed against CPR include: theft, vandalism, drug trafficking, sabotage, arson, computer crime --As many as 30-40 incidents per week--No CPR police permanently stationed at Toronto Yard--Particular concerns: equipment theft, sexual harassment of female employees-- Other concern: impact of 9/11, concern regarding terrorists as CPR carries military equipment, hazardous materials cross-border--CPR's Police Chief swore affidavit since 9/11 railway under increased pressure, scrutiny as to level of security provided customers, workers, various government levels in Canada, U.S.A.--Toronto Yard difficult to patrol, cannot be fully secured by conventional methods without incurring unreasonable expense--Video surveillance deters crime by increasing criminal's perceived risk of getting caught --Under cross-examination, one CPR deponent acknowledged cameras might capture employee working in area camera aimed at--Under cross-examination, applicant's deponent admitted some workers had been disciplined (but not terminated) for drug, alcohol possession--Also agreed that nothing in collective agreement required CPR to inform him (as Diesel Shop Chairman) of plans to install cameras--CPR challenged Court's jurisdiction because Privacy Commissioner lacked jurisdiction to entertain complaint, as workplace dispute within collective agreement--Argued matter should be dealt with pursuant to labour arbitration model: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929--Applicant, Commissioner disagreed, pointing to Act, s. 13(2) (Commissioner need not prepare report if of view complainant should first exhaust grievance procedure)--Another issue: amount of deference owned Privacy Commissioner's findings--Applicant suggested review standard is reasonableness simpliciter-- Turning to merits, first sub-issue was whether CPR's purpose for installing cameras justified in that, under PIPEDA, personal information may not be collected unless reasonable person would consider reasons for surveillance legitimate in circumstances--Whether evidence sufficient for CPR to discharge burden--CPR argued did not need applicant's consent to install cameras--Relied on CSA model code, clause 4.3: exception where requirement for knowledge, consent inappropriate--Applicant, Privacy Commissioner submitted words "except where inappropriate" in clause 4.3 to be read with s. 7 which says only 4 exceptions to rule knowledge, consent necessary and none of these here applicable--Jurisdictional challenge rejected for number of reasons--Two statutory conditions precedent were here met-- Arbitration model espoused by S.C.C. in Weber case inapplicable herein--Faced here with two statutory regimes: one under PIPEDA, other mandated by Canada Labour Code, situation before Ontario C.A. in Ford Motor Company of Canada v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465--Necessary to consider essential character of dispute and where legislature intended it be resolved-- Human rights legislation occupies uniquely protected sphere in legal orbit--Enjoys quasi-constitutional status, overridden only by express, unequivocal legislative language-- Legislature did not intend labour arbitrators have exclusive jurisdiction over human rights issues: per Abella J.A. in Ford Motor case--Commissioner urged proposition PIPEDA, Canada Labour Code concurrent, neither ousted the other--In reliance on Ford Motor, trilogy of Saskatchewan C.A. judgments, Court agreed intention of Parliament not to exclude unionized workers from PIPEDA's scope--Essence of dispute before Court did not arise from collective agreement--PIPEDA is a fundamental law of Canada-- Decision of Pinard J, which went the other way, in L'Ecuyer v. Aéroports de Montréal (2003), 233 F.T.R. 234 (F.C.T.D.) distinguishable on point of essential nature of dispute--Also Pinard J. lacked benefit of full argument on point--Englander v. Telus Communications Inc. (2003), 235 F.T.R. 1 (F.C.T.D.), involving CRTC's mandate covering fee-setting for unlisted numbers, also distinguishable--More on point: Canadian Broadcasting Corp. v. Paul, [1999] 2 F.C. 3 (T.D.), in which issue whether arbitrator had exclusive jurisdiction over complaint under Canadian Human Rights Act (CHRA), impugned conduct being prohibited by collective agreement containing arbitration clause--F.C.T.D. Judge held Weber inapplicable as S.C.C. there not addressing concurrent jurisdiction situation--Judge noted that CHRA, s. 41 was subsequent enactment to Canada Labour Code, s. 57 and rule is that earlier provision is repealed by implication in so far as confers exclusive jurisdiction upon arbitrator--To determine essential characteristic of dispute, have to examine dispute's nature in factual context, ambit of collective agreement-- Essential characteristic of dispute herein was complaint CPR violating PIPEDA by collecting personal information via surveillance cameras without applicant's consent-- Applicant's complaint specifically engaged PIPEDA--As conceded for CPR at hearing, collective agreement, Art. 43 does not cover workplace collection of personal information-- Dispute did not arise from collective agreement--If respondent of view another review procedure is available, issue must be raised with Commissioner at earliest opportunity and may not raise objection after Commissioner issues report--PIPEDA, s. 14 proceeding not review of Commis-sioner's report, recommendation but fresh application seeking s. 16 remedy, and complainant must discharge burden of demonstrating PIPEDA violation--Judge must exercise discretion de novo--Some deference to be accorded Commissioner in area of expertise, including factors taken into account in balancing applicant's privacy interests with those of CPR in safeguarding employees, property--But no deference for findings of fact since evidence before Court differed from that gathered by Commissioner--Introduction of additional evidence makes situation herein analogous to Trade-Marks Act appeals: see Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 (C.A.)--No doubt Parliament mandated balance of interests (PIPEDA, s. 3 purpose clause)--Question why personal information needed to be collected had to be analysed in contextual manner-- Appropriate purposes for collection may differ from those for use, disclosure of collected information--Necessity for flexibility, variability in accordance with circumstances--As to surveillance cameras, arbitrators have drawn bright line between surreptitious collection, that by cameras at known locations--Have condemned use of cameras to record productivity--Point made by Arbitrator Munroe in Pope & Talbot Ltd. v. Pulp, Paper and Woodworkers of Canada Local No. 8, [2003] B.C.C.A.A.A. No. 362 (QL) "just as an employee's privacy interests require protection against the overzealous exercise of management rights, so also must an arbitrator acknowledge the employer's legitimate business and property interests. What is required, then, is a contextual and reasonable balancing of interests"--In Unisource Canada Inc. and C.E.P., Loc. 433 (Re) (2003), 121 L.A.C. (4th) 437 (B.C.), Arbitrator Kelleher (as he then was) said there was no blanket prohibition against videotaping--Test was whether surveillance reasonable exercise of management rights in circumstances of case--In case at bar, Court concluded reasonable person would consider CPR's purposes for collecting by recording images appropriate in circumstances --Collection was not surreptitious--Warning signs posted-- Information collection not continuous--Not limited to CPR employees, but included contractors, visitors, suppliers, trespassers--Not used for work productivity measurement-- Recorded images kept under lock and key, accessed only by responsible managers, CPR's police force, destroyed within appropriate time frame if no incidents requiring investigation recorded--Legitimate need for cameras established--Privacy loss minimal--Since cameras were in public locations, low privacy expectation--Such view in accordance with S.C.C. judgments in Charter, s. 8 cases--Privacy loss was proportional to benefit gained--CPR did look at, weigh alternatives in Toronto Yard context--Alternatives not cost effective or would be disruptive of operations--Respondent's argument regarding meaning of words "except where inappropriate" in Sch., 4.3 rejected as not in harmony with scheme of Act--CPR on facts herein, entitled to collect personal information without applicant's knowledge, consent under PIPEDA, s. 7(1)(b) exemption--Important that videotaped images not viewed absent triggering event--Court accepted CPR's argument information collection takes place only if recording viewed in incident investigation-- Application dismissed--Personal Information and Electronic Documents Act, S.C. 2000, c. 5, ss. 5, 7(1), 13, 14, 16, 17(1)--Canada Labour Code, R.S.C., 1985, c. L-2, s. 57 (as am. by S.C. 1998, c. 26, s. 59(b))--Privacy Act, R.S.C., 1985, c. P-21--Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 41(1) (as am. by S.C. 1995, c. 44, s. 49)--Trade-marks Act, R.S.C., 1985, c. T-13--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 8.