When an employer terminates a unionized employee on the strength of video surveillance evidence, it can bet that the union will challenge the admissibility of that evidence on a whole series of grounds. The Union will argue, for example, that the employer was not reasonable in instituting the surveillance or that a balance had to be struck between the employers right and that of the employee or that the employee has some underlying right of privacy.
A huge body of case law has developed dealing with this issue. There has been little consensus, but considerable debate.
The front runner, for some time, was the so called "balancing of interest" approach coming out of British Columbia. The practical effect of having the evidence excluded is that the employer's case craters.
But there seems to be a growing body of case law (at least here in Ontario) led by Arbitrator Bendel where a more pragmatic approach has been adopted. It always struck me as troubling that arbitrators will exclude evidence that is clearly relevant to the issue. I understand the contrary arguments, please don't send me email, but take a step back - there's video of an employee caught in the act of stealing from the employer, this is the only evidence of the theft, the evidence gets excluded and, as quick as that, the employee is back at work.
So now we have two recent decisions of Arbitrator Bendel that clarify the issues greatly. The first case of Greater Toronto Airports Authority (January 3, 2007, Bendel) arose under the Canada Labour Code. Arbitrator Bendel conducted a thorough and detailed review of the caselaw, including an interesting line on the audi alterem partem rule as applied in labour arbitrations. The rule "requires tribunals to give each party a full opportunity to present its case." The leading case is Université du Québec à Trois-Rivières v. Larocque [1993] 1 S.C.R. 471.
Arbitrator Bendel held that the evidence was admissible and stated that:
It is obviously open to the parties to bar the use of surveillance evidence at arbitrations through the inclusion of an appropriate clause in their collective agreement, and arbitrators would respect such a clause. But, in the absence of such a clause, it is simply not open to an arbitrator to reject such evidence, whatever view the arbitrator takes on the propriety or the acceptability in our society of the use of such investigative techniques.
Section 16 (c) cannot be interpreted as authorizing me to exclude the evidence. To deny the employer the right to present its only evidence in support of its decision to discharge the grievor would be an obvious example of procedural unfairness. I am confident that I would be violating the principle audi alteram partem by rejecting that evidence.
The next case is General Electric Canada (January 7, 2007, Bendel). This was a case decided under the Ontario Labour Relations Act, 1995. After, once again, conducting a thorough review of the various theories, Arbitrator Bendel stated that:
As regards the admissibility of the videotape evidence, I issued an award dealing with this exact question on January 3, 2007, in an arbitration between the Greater Toronto Airports Authority and the Public Service Alliance of Canada. I heard nothing at the hearing of the present case to cause me to change the views I expressed there on this issue. Although the earlier award was made under the Canada Labour Code,R.S., 1985, c. L-2and examines the issue against the backdrop of section 16 (c) of the said Code, there is little or no difference in this regard, in my view, between the Code and section 48 of the Labour Relations Act, 1995.
The Arbitrator went on to consider and then dismiss the Union's argument that the evidence should be excluded on the basis of the the Personal Information and Protection of Electronic Documents Act.
I spoke a few years ago at the Law Society of Upper Canada Six Minute Labour Lawyer conference on video surveillance at arbitration. At that conference I noted that Arbitrator Bendel, back in 1996 with the case of Kimberly-Clarke Inc. (1996) 66 L.A.C. (4th) 266, (Bendel) started the errosion on the "balancing of interest" school of thought as pertains to video surveillance evidence in Ontario. The were a number of cases that followed.
Arbitrator Bendel, in the Kimberley-Clarke case, held that the fundamental question, in Ontario, springs from section 48(1)(f) of the Labour Relations Act, 1995. Specifically, the arbitrator should ask:
“.... Was it intended by the Legislature, in enacting this provision, that arbitrators might exclude evidence that is relevant and court admissible, thereby denying a party the opportunity of presenting its best case, in the interest of safeguarding the credibility of the arbitration process?”
Arbitrator Bendel went on to hold that video surveillance evidence would be admitted provided it met the test of being, for example, reliable and relevant.
The more functional and practical approach, as highlighted in these more recent cases, is a breath of fresh air and, I hope, will gain some traction.
