An Ontario arbitrator in Corporation of the City of Niagara Falls v Amalgamated Transit Union, Local 1582, 2015 CanLII 67502 (ON LA) recently considered a production request by an employer for an employee’s cellular phone records in the context of a discipline case.
In this case, a bus operator was suspended for three days the without pay for having obstructed the security camera on his bus, having handled cash, and having used a hand-held device while at the wheel of his bus.
The employer requested production of the grievor’s cell phone records for all the days he worked between September 1, 2014, and January 16, 2015.
The collective agreement contained the following clause:
22.02 All video cameras installed on property or equipment is [sic] for security purposes only.
The parties considered R v Fearon,  3 SCR 621 where the Supreme Court of Canada considered the circumstances under which police officers could conduct a warrantless search of someones cell phone or other digital device in the context of an arrest.
The arbitrator held as follows:
I informed counsel that I would order production of the grievor’s cell phone records, but only for the dates on which the employer had evidence that the grievor was using his cell phone at the wheel of his vehicle, while leaving until closing arguments the question whether Article 22.02 precluded access to those records. I added that, notwithstanding the principle in R. v. Wray, 1970 CanLII 2 (SCC),  S.C.R. 272, and Ferenczy v. MCI Medical Clinics (2004), 2004 CanLII 12555 (ON SC), 70 O.R. (3d) 277 (S.C.), that a document is admissible, provided it is relevant, regardless how it had been obtained, I would not allow the employer to rely on any documents obtained through the production order if, ultimately, I ruled that the grievor’s privacy rights or his rights under Article 22.02 of the collective agreement would thereby be infringed.
Arbitrator Bendel has ruled on admissibility of surveillance evidence in a number of cases and sided on the relevance, rather than reasonableness approach (see: General Electric Canada v. Communications, Energy and Paperworkers of Canada, Local 544, 2007 CanLII 408 (ON LA) and Greater Toronto Airports Authority v. Public Service Alliance of Canada, 2007 CanLII 53977 (ON LA)). As Arbitrator Bendel more recently stated in Energex Tube v Unifor, Local 523, 2013 CanLII 67040 (ON LA), “I respectfully do not understand how it can be said that arbitrators have the discretion to exclude surveillance evidence.”
The debate on the appropriate case continues, but more Ontario arbitrators seem to be moving in the direction of relevance, rather than reasonableness and have applied the language of the Labour Relations Act, 1995, rather than a balancing approach that began in British Columbia and moved East. (see: International Brotherhood of Electrical Workers, Local 353 v Ainsworth Inc., 2015 CanLII 45146 (ON LRB), Ready Bake Foods Inc. v. U.F.C.W., Locals 175 & 633 (2009) 184 L.A.C. (4th) 375,
But I digress.
The issue of “regardless how it had been obtained” was raised in a number of cases.
In Ready Bake, for example, the arbitrator observed:
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.
But this line of reasoning is not without its detractors. For example, in Ontario Power Generation v Society of Energy Professionals, 2015 CanLII 26177 (ON LA), it was noted:
With respect, saying (as the arbitrator in Ready Bake Foods Inc. did) that unlawfully obtained evidence should nevertheless be admitted in a grievance arbitration proceeding because it may be subject to criminal sanctions or the wronged party may have a civil remedy in another forum is no answer to an objection to admissibility. What if an employer's agent broke into an employee's home (whether authorized to do so or not) and installed covert surveillance equipment? What if the employer's agent unlawfully accessed a union's or a medical health professional's records and discovered relevant evidence which was not otherwise compellable in a grievance arbitration proceeding? Would evidence obtained through clearly illegal means be admissible if it was relevant because the employee or the union might have a remedy elsewhere? Does that question really have to be asked?
The debate will continue.
But back to Corporation of the City of Niagara Falls v Amalgamated Transit Union, Local 1582. In this case, the arbitrator stated that if he were to find that either Article 22.02 or the grievor’s privacy rights would be infringed by the admission of the cell phone records, he would order them inadmissible. So, the arbitrator, while finding that the appropriate test for admissibility is relevance (not reasonableness), is (or seems) prepared to draw a line - where the parties to a collective agreement have, expressly, limited admissibility or use, or where a “right of privacy” is violated, that will trump admissibility.
The arbitrator in Ready Bake addressed the privacy issue in Ready Bake (recall this case was decided before many of the recent privacy cases, including by the Supreme Court of Canada):
I also am of the view that the right to privacy, however it may arise, is not germane to this issue. If the right exists, and I take no view at this time as to whether it does or does not, it can be pursued for its infringement. If an employee has such a right and this right has been infringed then, in the context of a collective agreement, it can be pursued as a grievance and a remedy for the infringement of the right can be fashioned by an arbitrator. Regardless, it would not impact the admissibility of the evidence (unless of course as pointed out by arbitrator Bendel the parties negotiated a prevision in the collective agreement which would cause the evidence to be excluded).
Again, it remains to be seen how all of this shakes out, and we will follow the next phase in the Corporation of the City of Niagara Falls v Amalgamated Transit Union, Local 1582 to see how, if at all, these various issues are addressed.
For now, the arbitrator ordered production of only those cell phone records only on those dates where the employer had evidence that the grievor was using his cell phone while at the wheel of his bus.