No-cameras-at-work ruling not binding but typical of privacy trend

Office of the Privacy Commissioner said Internet service provider's use of cameras to monitor employees violated PIPEDA

A Canadian Internet service provider had its wrist slapped by the federal Office of the Privacy Commissioner last month for installing video cameras in the workplace.

The company claimed the cameras were there to improve security and help manage productivity. Web cameras were installed by the company in 2003. The cameras were fixed, with no pan or zoom function. They were set to low resolution and did not record, though it was easy to recognize individuals captured on camera, who they were and what they were doing.

The assistant commissioner hearing the case rejected the employer’s claims, ruling the video cameras violated the Personal Information Protection and Electronic Documents Act (PIPEDA) and “recommended” the cameras be taken down.

“The underlying purpose for the cameras really appeared to be one of deterrence — deterrence of theft, harassment, malingering, criticism, or other behaviour an employer may not like,” states the decision summary.

“While it may prevent undesirable behaviour, it also forces the employee to call into question every potential action, every potential comment no matter how benign.”

The decision comes from what is ostensibly one of the most important voices on privacy in the country, particularly since PIPEDA came into effect at the start of the year for all private-sector organizations in provinces without similar legislation. (PIPEDA has covered federal and federally regulated enterprises since 2001.)

Just the same, employment lawyers say the ruling does not prove employers can’t put up cameras in the workplace, though it is in keeping with the general principles of increased privacy protection underlying new privacy legislation.

“This decision doesn’t say that video surveillance is never allowed. It says that the use of web cameras as described in this case was excessive,” said Marie-Hélène Constantin, from the Montreal office of Blake, Cassels & Graydon LLP. Employers have to balance their actions with employees’ right to privacy, she said.

As a general principle, employers have to use the least intrusive methods to meet objectives. In some cases, the use of cameras is acceptable, as illustrated by one Quebec ruling, said Constantin. The case dealt with the issue of privacy and the admissability of videotaped evidence. A company was having problems with vandalism in the washrooms. Somebody was intentionally blocking toilets with toilet paper. “They couldn’t find out who was doing it, so they put cameras in the stalls, but only focused on the toilet paper dispenser.”

The employer showed it had tried everything else, so the court said the cameras in the stalls, though seemingly extreme, were not abusive under the circumstances.

The privacy commissioner ruling is “a lesson for employers, but you can’t take it as black-letter law,” said Paul Jones, a Toronto-based lawyer specializing in privacy. No two cases are ever the same though the underlying principles typically are. A privacy ruling in one jurisdiction arising from an employee complaint will be instructive, but not conclusively so.

Such is the nature of the evolving patchwork of workplace privacy rules and regulations across the country — it is hard to call any ruling precedent-setting.

For one thing, in jurisdictions where PIPEDA is the applicable legislation, a strict interpretation of the act does not even extend the same privacy protections to employee information that are in place for the public at large, said Jones.

What’s more, the Office of the Privacy Commissioner does not have much power to enforce its decisions. Thus it could only make a “recommendation” that the cameras be taken down.

“The question many employers many be asking themselves about these decisions is, ‘Do you get scared or do you yawn?’” said Jones.

At the moment rulings from the privacy commissioner do not have much bite, he said. Technically the commissioner can take the matter to court, but Jones doesn’t expect to see that happen in the early days.

With privacy there are a lot of grey areas, he said. An employer may not be sure about what is acceptable, but neither will the employees. “When both parties are not sure about the strength of their case, that is a powerful incentive to settle, to reach a compromise,” he said.

A lot of employers are honestly trying to follow the spirit of the legislation and don’t deserve to face repercussions for honest mistakes, said Jones. “A soft approach is not such a bad idea in the beginning. Whether it should continue that way is another matter.”

And finally, British Columbia and Alberta now have their own privacy rules, officially okayed by Ottawa earlier this month. (Quebec has had its own laws for some time and is challenging the constitutionality of PIPEDA’s reach into provincial jurisdictions.) Their laws are substantially similar to PIPEDA but the application of those laws will still be subject to individual interpretations of the privacy commissioner in charge.

The B.C. legislation does not specifically address video surveillance, but it is considered to fall within the concept of “employee personal information,” said Gavin Marshall, a Vancouver-based lawyer specializing in employment law with Fasken Martineau. “The perception that workplace surveillance is going to be restricted or eliminated by provincial privacy legislation isn’t correct,” he said.

Employers are able to collect information so long as they have employee consent, either expressed or implied. What’s more, information can be gathered for a bona fide workplace investigation. If employers are using surveillance to correct a problem, that would likely be judged to be okay, he said.

Gwen Gray, of Edmonton-based Chivers Carpenter Lawyers, said this interpretation of the appropriateness of video surveillance is not in keeping with recent rulings on video surveillance in Alberta.

“I think the decision could have a great deal of precedential value,” she said. Although not binding, it sends an important message to arbitrators and judges, she said.

“Hopefully surveillance will become recognized as a breach of privacy and the PIPEDA decision would suggest that is the direction we are heading.”

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