I'm a little behind on my blog reading, but I did want to thank Dan Michaluk for bringing a helpful case called McKesson Canada Corp. (Birch Grievance) to my attention through his post. Arbitrator Hood notes in the McKesson case:
"Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray , [1971] S.C.R. 272)."
This is similar to a comment made by the Arbitrator in a case that I argued:
"Put simply, I agree with arbitrator Bendel that the test for the admissibility of videotape surveillance is relevance. I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was; obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager's office and while in the office finds a document that is relevant to a question before an arbitrator. Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible."
The Mckesson case is another in a line of cases that have struggled with the underlying bases advanced by union's in support of their claims that video surveillance evidence ought not be admitted at arbitration even where that evidence is relevant to the issues in dispute.
