The camera was hidden in a clock, discovered by a janitor. It had been in the school principal’s office for months because he was suspected of writing a book during work hours, according to media reports — which is why the Toronto District School Board found itself in the hot seat recently, facing allegations of “invasion of privacy.”
The situation raises, yet again, questions around covert surveillance in the workplace and the legalities involved.
To be fair, there’s no straightforward answer, according to Lyndsay Wasser, a lawyer at McMillan in Toronto, adding there’s a complicated framework involved, especially in Ontario.
For one thing, there’s public sector legislation that would apply to a school board, and it has a pretty broad exemption for employment records. The act does not apply to “records collected, maintained, prepared or used by or on behalf of an institution in relation to meetings, consultations, discussions or communications about employment-related matters in which the institution has interest,” she said.
“So the students and the parents who might have been in the office, if they were caught on tape, might have a MFIPPA (Municipal Freedom of Information and Protection of Privacy Act) complaint but whether the principal does or not is a different story because of this broad exception.”
Then there’s the Canadian Charter of Rights and Freedoms, and there’s definitely case law that says it can apply, said Wasser.
“So was this a breach of the principle that you can’t be subject to unreasonable search and seizure, was there reasonable expectation of privacy in the office? I think there’s definitely people who would argue there would be a reasonable expectation of privacy in your office, but that sort of thing can be modified by things like employment policies which say, ‘In event of an investigation, we may do x, y and z; for example, engage in surveillance,’” she said.
Citing R. v. Cole, in which a teacher had child porn on his computer and the Crown conceded the school board was subject to the charter, Wasser said the charter would probably come more into play if the TDSB tried to let the principal go and wanted to admit evidence into the hearing of his misconduct.
Then there’s common law and, in Ontario, the tort of intrusion upon seclusion cited in Jones v. Tsige in 2012.
“That’s a pretty high standard… and one of the elements of it is that there’s no lawful authority for this for the intrusion,” she said, adding the tort talks about intentionally intruding “physically or otherwise” upon the seclusion of another and invasion of privacy that’s “highly offensive to a reasonable person.”
This recent situation falls right into the tort of intrusion upon seclusion, said Natalie MacDonald, founding partner at Rudner MacDonald in Toronto, adding there are three prongs to the test: the conduct must be intentional, the defendant must have invaded the plaintiff’s private affairs or concerns without any lawful justification, and a reasonable person would regard the invasion as highly offensive and causing distress, humiliation and anguish.
“The issue here is that, as I understood it, the principal had no idea whatsoever that he was being videotaped and that he had a reasonable expectation of privacy, particularly in the principal’s office. And, in addition to his own privacy, he had other individuals inside his office who also had an expectation of privacy.”
This kind of surveillance could be warranted in a case where employee theft is suspected and the only way to prove it is to capture the person on videotape, she said.
“The reason that’s acceptable is because there’s a legitimate, lawful reason for it.”
Writing a book is not like stealing money from a company — they’re two different offences, said MacDonald.
“You only really resort to a video camera as a last ditch effort and... the only time I can think of it applying would be in theft, cases of theft or cases, I suppose, where maybe there’s bullying and harassment.”
This principal would have a right to sue for damages for the tort of intrusion upon seclusion and potentially damages for mental distress, she said.
Whether it’s a public school or private organization, an employer has to be very careful about using covert video surveillance, said Roland Hung, an associate at McCarthy Tétrault in Calgary, citing sources such as the privacy commissions of Canada and Alberta which generally oppose the use of covert video surveillance unless it passes a three- or four-part test.
For example, Canada’s privacy commissioner says an employer must consider whether the measure is necessary for the specific need, said Hung: Is it likely to be effective in meeting that need? Is the loss of privacy proportional to the benefit gained? Is there a less privacy-intrusive way for achieving the same end?
“The privacy legislation in Canada both federally and provincially generally deals with the concept of reasonableness and whether the collection, use and disclosure is ‘reasonable.’ And reasonable means necessary under the circumstances, so I would suggest that no, it wasn’t,” he said.
One other issue is the possibility of a constructive dismissal claim, said Wasser, citing the 2008 case of Colwell v. Cornerstone Properties, where the employer installed a video camera above an employee’s desk without her knowledge. When she found out, she quit and claimed constructive dismissal — and the court agreed.
“It considered briefly whether there was another invasion of privacy type of tort but it didn’t end up deciding and this was before Jones v. Tsige,” she said. “So now, I would suspect, if someone was to make a constructive dismissal claim on the basis of these facts, they would add on at least a claim for intrusion upon seclusion.”
There were additional aggravating factors in Colwell, such as a poor explanation from the employer in trying to explain it was investigating for theft from the office but the court said this dishonest, disingenuous explanation destroyed the trust between the parties, said Wasser.
“It’s slightly distinguishable but the facts are similar enough that you would expect, if the principal was to try a constructive dismissal claim, that (the Colwell) case would be looked at and considered as being a precedent for the theory that covert video surveillance could be a constructive dismissal.”
Factors to consider
The lack of a voice recording might work in the school board’s favour, but it’s also about looking at whether the camera was on continuously for days or weeks and where the camera was pointed, said Wasser.
“Typically, video recording is viewed as fairly invasive, it tends to fall on the high end of invasiveness so (it’s about asking): What evidence did the school board have that there was misconduct? Were there other ways they could have investigated without resorting to this?”
It’s also important to know who was accessing the records, she said, such as whether it was confined to only the people who had a need to know.
Having something about surveillance in a policy can help but there still have to be reasonable suspicions, with surveillance carried out in reasonable manner.
“You don’t need consent to investigate employee misconduct but to put people on notice that they shouldn’t 100 per cent have an expectation of privacy,” said Wasser. “Whether that saves you, maybe not, depending on how you’ve done it but at least it would be a factor in the employer’s favour if they do have that.”
The question is whether the employer could have achieved the same end using less privacy-intrusive means, such as computer software or keystroke monitoring.
“The standard might be lower for keystroke because it’s less invasive, in some ways, than a video surveillance. In other ways, it might actually be more invasive because you may potentially be getting people’s passwords,” said Hung.
And even if an employer does put out warnings and cautions, that would probably make for a pretty poor work environment, he said.
“If we put all this privacy stuff aside, from an employment perspective, if the end goal is to discipline this principal for writing a novel or book on school time, what you really should be doing is a proper investigation, at the end of the day, and documenting that, and perhaps interviewing him and asking him some of the questions more directly.”
All this is not to say employers should never do video surveillance, said Hung — it’s about making sure you give proper notification, setting out the purposes for why you’re using it and ensuring there’s no other reasonable means to achieve the same purposes.
© Copyright Canadian HR Reporter, HAB Press. All rights reserved.