Requirement to notify employees of surveillance
Question: Does an employer have to officially notify employees about security cameras in the office if they’re obvious and in common areas? What about if cameras are added to specific areas where there are only a few people?
Answer: Employers do not have a unilateral right to conduct surveillance, and the installation of security cameras is not a simple matter of informing employees of the change. The law of privacy continues to emerge, with varying schemes across the Canadian provinces. The overarching approach to privacy rights is one of proportionality. The employer has the onus of demonstrating that the business interest outweighs the employee’s privacy interest, as an arbitrator found in Canada Safeway Ltd. v. U.F.C.W., Local 401.
Federally regulated private sector employers, such as banks and airlines, are governed by the Personal Information Protection and Electronic Documents Act (PIPEDA). Alberta’s provincially regulated private sector employers, which make up the majority and include construction and real estate, are regulated by the Personal Information Protection Act (PIPA). Both statutes provide limits on the collection, use, and retention of personal information, including exemptions. Government institutions have separate legislative schemes.
Courts, privacy commissions, and arbitrators have considered similar analyses regarding employer surveillance. Specifically, the surveillance must be conducted reasonably, and for a reasonable business purpose. The privacy rights of the employee must be balanced with the business interests of the employer, provided that such interests are real and meaningful. Because most, if not all, businesses have concerns about security and safety in the workplace, an employer must provide objective evidence of specific circumstances justifying surveillance: Calgary Herald v. GCIU Local 34-M and Re: Woodstock (City) and Woodstock Professional Firefighters’ Association (Video Surveillance).
Therefore, the permissibility of surveillance installation is not resolved by informing employees of the cameras. The analysis will consider the business purpose, including the applicability of safety and security concerns, the probability that surveillance will assist with the concerns, and the number of and characteristics of the cameras.
Absent a situation where the employer is conducting a serious investigation, as contemplated in PIPA, it is difficult to justify covert surveillance as a reasonable business objective.
Even an investigation may not be sufficient grounds for intrusion on an employee’s privacy rights. For example, in Colwell v. Cornerstone Properties Inc., the installation of a covert security camera in the office of a trusted manager, followed by an implausible explanation, was not a reasonable act of employer surveillance. Specifically, the surveillance irreparably damaged the trust between employee and employer and was not the least intrusive method of accomplishing the employer’s desired investigative objective, which was cleaning staff. Not only had the employer improperly intruded on the privacy of a trusted employee, but the intrusion and associated conduct were so egregious that they resulted in the constructive dismissal of the employee. Not only had the employer infringed the privacy rights of its employees, it was also liable for wrongful dismissal damages.
It’s recommended that all private sector employers review the Privacy Commissioner of Alberta’s “Guidelines for Overt Video Surveillance in the Private Sector.”
Looking ahead, the trend in privacy law is toward protection of personal privacy. Therefore, employers should exercise caution in all matters involving personal information and particularly workplace video surveillance. In addition to the privacy issues, employers must be aware that video surveillance may erode the employment relationship due to distrust.
For more information see:
• Canada Safeway Ltd. v. U.F.C.W., Local 401,  A.G.A.A. No 109 (Alta. Arb.).
• Calgary Herald v. GCIU Local 34-M,  A.G.A.A. No. 23 (Alta Arb.).
• Woodstock (City) and Woodstock Professional Firefighters’ Assn. (Video Surveillance), 122 C.L.A.S. 307 (Ont. Arb.).
• Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (Ont. S.C.J.).
Tim Mitchell practises management-side labour and employment law with McLennan Ross LLP in Calgary. He can be reached at (403) 303-1791 or [email protected]