Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights
(CEER) Newsletter – November, 2014
B.C. Employers Need a “Reasonable Basis” to Conduct
Employee Surveillance: Unifor, Local 433 v. Crown Packaging
Ltd. (Giesbrecht Grievance), 2014 B.C.C.A.A.A. No. 43 (Dorsey)
By Danielle E. Scorda
Facts
Unifor, Local 433 v. Crown Packaging Ltd. (Giesbrecht Grievance), [2014]
B.C.C.A.A.A. No. 43 (Dorsey) is a recent arbitral decision considering the
admissibility of surveillance evidence in British Columbia.
The case involved a 34-year employee with no history of time theft, benefits fraud or
other similar behaviour. The grievor requested holiday time from October 9 to 11,
2013, and the employer denied his request. The grievor then reported back pain on
October 4th and called in sick on October 9th; he advised he had a doctor’s note and
his return to work date was unknown.
The employer strongly suspected the grievor wanted the holiday time for a road trip,
as he had previously requested the days off. The employer hired a private
investigator to conduct surveillance of the grievor both at his home and in public.
The grievor provided the doctor’s note to his employer on October 11th.
The employer subsequently dismissed the grievor for fraudulently claiming sick leave
for three days and obtaining weekly indemnity benefits, and being dishonest about
the reasons for his absence during the employer’s investigation.
The employer sought to introduce the surveillance evidence at the arbitration
hearing. The union argued the evidence should be excluded, as it breached the
grievor’s privacy rights.
{00292098;1}
800 Park
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Street || Vancouver,
Vancouver, BC
BC V6C
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3P3
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604.806.0922 || www.ropergreyell.com
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-- 11 --
Law
In his award, Arbitrator James Dorsey took the opportunity to thoroughly review the
law of admissibility of surveillance evidence in the arbitral jurisprudence, noting the
different approaches in B.C. and Ontario.
In Ontario, arbitrators are divided as to whether the test for admissibility is relevance
or reasonableness. In particular, some arbitrators in Ontario assert that a discretion
exists to exclude such evidence if the employer acted unreasonably in ordering the
surveillance, while others deny that any discretion exists and will admit any evidence
that is relevant to the issues in dispute, without consideration of the circumstances in
which it was obtained.
In British Columbia, however, arbitrators approach the admissibility of surveillance
evidence by assessing reasonableness. The reasonableness assessment involves
asking and answering two questions:
1. In all of the circumstances, was it reasonable to request the surveillance?
2. Was the surveillance conducted in a reasonable manner?
In every case, the question of whether to admit surveillance evidence requires a
balancing of the employee’s right to privacy and the employer’s right to investigate.
Reasonableness will include a consideration of whether there were alternative and
less intrusive means to investigate the suspicion and obtain the relevant information.
Analysis and Decision
Arbitrator Dorsey applied the reasonableness test – as he believed to be
appropriate. He determined that the surveillance evidence was collected without the
grievor’s consent and without a reasonable basis for its collection at the time.
First, there was no evidence that the employer had a basis in its employment
relationship with the grievor to suspect he would be dishonest. Second, it was
unreasonable given that the employer made no less privacy-intrusive effort to obtain
further information about the grievor’s sick leave claim before it commenced the
surveillance. Arbitrator Dorsey said that the employer could have asked the
employee to fax, e-mail or bring in the doctor’s note. Notwithstanding that it made
no effort to obtain the information and it had no evidence he was a problem
employee, the employer chose to initiate the surveillance immediately. This was an
unauthorized violation of the grievor’s right to privacy.
The surveillance evidence was not admissible.
{00292098;1}
800 Park
Park Place,
Place, 666
666 Burrard
Burrard Street
Street || Vancouver,
Vancouver, BC
BC V6C
V6C 3P3
3P3
800
info@ropergreyell.com || 604.806.0922
604.806.0922 || www.ropergreyell.com
www.ropergreyell.com
info@ropergreyell.com
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Take-Away Points
Employers often query whether they can conduct surveillance of employees
suspected of abusing sick leave, and ask about the admissibility of the surveillance
evidence in a future arbitration hearing.
This decision confirms that B.C. arbitrators continue to assess the admissibility of
surveillance evidence applying a reasonableness approach. Even if the surveillance
evidence is extremely reliable and relevant to the issues, it may still be excluded
from evidence if the arbitrator concludes there was no reasonable basis for its
collection or the surveillance was conducted unreasonably.
The reasonableness analysis will turn as always on the facts of each situation. For
instance, this case would likely have had a very different outcome if the grievor was
a problem employee with a history of dishonesty and had been questioned about his
absence by the employer before it initiated the surveillance.
Overall, an employer ought to make a thorough qualitative assessment before
engaging in any surveillance. Otherwise, it risks the evidence being deemed
inadmissible in a future arbitration hearing.
Danielle E. Scorda is a lawyer at the Vancouver-based employment and
labour law firm of Roper Greyell LLP. She practises in all areas of
employment and labour law, including workplace safety, human rights and
privacy. For more information about Danielle and Roper Greyell, please
visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are
urged to seek specific advice on matters of concern and not to rely solely on what is
contained herein. The article is for general information purposes only and does not
constitute legal advice.
{00292098;1}
800 Park
Park Place,
Place, 666
666 Burrard
Burrard Street
Street || Vancouver,
Vancouver, BC
BC V6C
V6C 3P3
3P3
800
info@ropergreyell.com || 604.806.0922
604.806.0922 || www.ropergreyell.com
www.ropergreyell.com
info@ropergreyell.com
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