Employers conducting workplace investigations often seek to obtain all available evidence before determining whether misconduct occurred. Sometimes that evidence sits outside the workplace—in surveillance footage held by restaurants, retailers, or other third parties. Whether an employer can obtain and rely on that footage, and whether it must disclose the footage before interviewing an employee, were key issues in a policy grievance before Arbitrator Trachuk in Ontario Public Service Employees Union, Local 256 v Hamilton (City) [Hamilton].

Background

The Ontario Public Service Employees Union (“Union”), Local 256, which represents paramedics employed by the City of Hamilton (“Employer”), filed a policy grievance challenging the employer’s practice of obtaining third-party surveillance footage during misconduct investigations.

The parties agreed to a partial Statement of Facts regarding the employer’s practices, including that where the employer believed third-party surveillance footage would assist with an investigation, it could request a copy of the footage without seeking the Union’s or employees’ consent or notifying them that it had obtained it. The Employer could also interview employees before disclosing the existence of the footage and rely on any perceived inconsistencies between the footage and the employees’ accounts when deciding whether discipline was warranted. The issue was whether those practices were permitted under the collective agreement and applicable legislation.

The Union alleged that these practices violated:

• Article 2.02 of the collective agreement, which requires management rights to be exercised reasonably, fairly, and in good faith;
• Section 8 of the Canadian Charter of Rights and Freedoms [Charter], which protects individuals against unreasonable searches and seizures by government actors;
• The federal Personal Information Protection and Electronic Documents Act [PIPEDA]; and
• The Ontario Municipal Freedom of Information and Protection of Privacy Act [MFIPPA].

The Union argued that PIPEDA could restrict the third parties from disclosing surveillance footage without employees’ knowledge or consent. Although PIPEDA did not apply directly to the Employer, the Union argued that the Employer acted unreasonably by requesting information it knew third parties might not be legally entitled to disclose. It also argued that the Employer’s collection and use of the footage breached MFIPPA.

The Employer disagreed. It argued that third-party surveillance was a legitimate investigative tool; employees generally have limited privacy expectations in surveillance recorded in public; and neither PIPEDA nor MFIPPA prohibited its practices. It also argued that it could interview employees before disclosing surveillance, provided it did not lie or mislead them.

The Union alternatively sought an order requiring the Employer to meet certain conditions before requesting surveillance and to disclose its existence before interviewing an employee or, at minimum, answer honestly if asked about it.

The Decision

No Blanket Prohibition on Obtaining Third-Party Surveillance

The arbitrator declined to prohibit the practice outright.

On PIPEDA, she held that a third party could potentially breach the legislation by disclosing surveillance footage, but that question could only be answered by examining the particular disclosure and the third party’s conduct. Because no specific disclosure was before her and the third parties were not parties to the arbitration, she declined to decide whether PIPEDA had been breached or whether the Employer had induced a breach.

MFIPPA likewise did not bar the Employer from collecting the footage. The legislation expressly excludes records collected or used in relation to labour relations proceedings and employment-related matters. Obtaining third-party surveillance for a workplace investigation therefore did not, by itself, contravene MFIPPA.

Whether Third-Party Surveillance Violates Employees’ Privacy Rights Depends on the Particular Facts

The arbitrator also rejected the Union’s argument that obtaining third-party surveillance necessarily violated employees’ section 8 Charter rights or their privacy rights under the collective agreement.

Relying on the Supreme Court of Canada’s decision in York Region District School Board v Elementary Teachers’ Federation of Ontario, the arbitrator emphasized that privacy must be assessed based on the “totality of the circumstances.”

Relevant factors include how the footage was obtained, where and in what circumstances the employee was recorded, what the footage showed, applicable workplace privacy policies, and an employer’s reasons for obtaining it.

The grievance challenged the Employer’s practice generally rather than a particular instance of surveillance. Without a specific case to assess, the arbitrator found insufficient evidence to conclude that section 8 Charter rights had been infringed.

The same reasoning applied to the collective agreement. Whether the Employer acted reasonably requires a case-by-case balance between its legitimate investigative interests and the employee’s privacy interests.

No General Duty to Disclose Surveillance During the Investigative Interview Process

The Union also argued that employers should have to disclose surveillance before interviewing an employee or, at minimum, answer honestly if asked whether surveillance existed.

The arbitrator rejected both proposals. The collective agreement required employees to be told the purpose of a disciplinary meeting—not every piece of evidence the employer had gathered.

Employers must act reasonably, fairly, and in good faith, but those obligations do not generally require them to disclose surveillance before questioning an employee. Employers cannot lie or mislead employees, but they may generally obtain the employee’s account before revealing the evidence they have collected.

The arbitrator also declined to prescribe a particular investigative process without evidence that the employer’s approach was unreasonable in a specific case.

Key Takeaways

Hamilton provides helpful guidance for unionized employers investigating alleged misconduct. In particular, it offers insight into how arbitrators may balance employers’ legitimate investigative interests against employees’ privacy rights when considering the use of third-party surveillance, as well as the extent to which they may be prepared to prescribe procedures employers must follow during workplace investigations.

The practical takeaways for unionized employers are as follows:

• Employers May Request and Rely on Third-Party Surveillance Where Appropriate: The arbitrator declined to impose a blanket prohibition on employers requesting or relying on surveillance footage obtained from third parties. Third-party surveillance may be a legitimate investigative tool, provided its use is reasonable and respects employees’ privacy rights.
• Privacy Rights Must Be Assessed in Context: Whether obtaining or relying on third-party surveillance is appropriate depends on the particular circumstances, including how the footage was obtained, what it depicts, the employee’s reasonable expectation of privacy, and the employer’s reasons for obtaining and relying on the footage. Employers should carefully assess these considerations before requesting or relying on third-party surveillance.
• Employers Generally Retain Control Over Their Investigation Process: The arbitrator declined to require employers to disclose surveillance footage before interviewing employees or otherwise prescribe how investigations must be conducted. Employers generally retain discretion over how they conduct investigations, provided they act reasonably, fairly, and in good faith.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.