Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER March 10, 2014 March 10, 2014 NEWS NEWS 3 Canada's largest network of specialized job sites 1-888-562-9464 – info @ jobs.ca – www.jobs.ca TM that, despite the fact that most of us would acknowledge we have a lowered expectation in the work- place when we're going about and conducting our business." A 2012 decision in Ontario is somewhat related, where one BMO employee looked into the personal bank records of another employee at least 174 times over a four-year period. e court rec- ognized the right of the woman to sue for damages for the an- guish and suff ering caused by the intrusion. "We're still struggling with how to respond to that decision," said Côté. "As we have with employers and employees, we're trying to assess as between co-workers when is something authorized and when is it not. And it's much more dif- fi cult to draw those lines," she said. "But you're looking at really egregious forms of behaviour be- fore you can say that one individ- ual is really impinging on some- one's privacy expectations, espe- cially in a workplace where those expectations may be lowered." ere's a distinction between overt surveillance, such as secu- rity cameras, and covert surveil- lance, as between co-workers — unless it's totally blatant, said Côté. "Usually what we're talking about in these cases is covert forms of surveillance where some- one isn't letting someone else know that they're taping them and it doesn't allow that person an op- portunity to conduct themselves as they would if they knew that they were being surveilled — but that doesn't make all the evidence go away, for instance, in an inves- tigation. So these are all factors to be considered." More and more clients are coming in with recordings of con- versations with colleagues, said David Whitten, founding partner at Whitten & Lublin in Toronto. "It has proliferated in the last couple of years," he said. "Filming in the workplace by an employee — that is going to be something we are going to see again, with smart phones." While some case law suggests an audio recording by one ex- ecutive or manager of another executive or manager could be considered a breach of fi duciary duties, that's fairly unique, said Whitten. "If you have a justifi able, good faith reason for recording some- body else in the workplace, then I don't see an issue with that — and so far the courts haven't either." And while employers have to jump through a number of legal hoops when it comes to installing cameras in the workplace, that's in contrast to an individual employ- ee who has a rational basis for do- ing it, as with the City of Calgary clerk, said Whitten. " e same analysis would ap- ply as with a recording. As long as she's not fi lming other people other than her and this person, the fact that she set it up and she was consenting because she set it up, I don't see that as being a legal is- sue," he said. " e fact that the privacy may have been impacted becomes secondary to the fact that this person was caught engaging in inappropriate behaviour, unlaw- ful behaviour as a result of this camera install." Privacy has been evolving and it's starting to get some teeth, said Whitten. "What we're seeing in jurispru- dence now is that courts and ar- bitrators are becoming more and more willing to award damages for breaches of privacy." In cases involving surrepti- tious audio taping of people or employer cameras, arbitrators look at balancing interests in de- termining whether the evidence is admissible, said Kristin Gibson, a partner in the labour and employ- ment group at Aikins, MacAulay & orvaldson in Winnipeg. "I would expect that an arbitra- tor here would use that same type of test," she said. "My gut reaction to it is that there's a huge diff erence between somebody to whom something has happened setting up some- thing to try to record the next in- cident… and somebody who just happens to have a videocam on their computer, trolling around in the hopes of fi nding somebody doing something wrong." While an employer might have difficulty with random footage taken by one employee of an- other, in this situation there was clear probable cause for the clerk to have taken this step, said Gib- son, who is also vice-chair of the Manitoba Labour Board. And in Manitoba, if the breach of privacy is to protect yourself or your property rights, it's an excep- tion, she said. "Where a person is trying to protect themselves legitimately, I think that the other person would have a really hard time making out any protectable privacy right." Employer policies So, given the proliferation of smartphones, tablets and other devices in the workplace, is there a need for employer policies around surreptitious recordings? It's not a bad idea because most employers already have electronic usage policies of some sort, said Gibson. "It would be fairly easy to insert something in there about using phones, using cameras, that sort of thing. It's a good thing for em- ployers to turn their minds to," she said. However, while employers could certainly say this kind of be- haviour is not allowed, it begs the question of what to do if people violate the policy, she said. But some employers will pre- fer to respond to this kind of is- sue only when it surfaces, such as someone wanting to tape a meet- ing, said Côté. " at's pretty rare and I haven't seen too many employers consid- ering developing a policy because there's so much uncertainty sur- rounding when you can tell one employee not to record another employee," she said. "I wouldn't recommend it un- less there's some very particular concern because then the policy can be specific to that type of instance." However, the issues of sexual harassment and breach of privacy can be handled with policies, said Côté. "If surveillance touches on that, then maybe we can look to some of these traditional categories to decide what to do." Privacy concerns secondary to unlawful actions Privacy concerns secondary to unlawful actions SURVEILLANCE < pg. 1 "If you have a justifi able, good-faith reason for recording somebody else in the workplace, then I don't see an issue with that — and so far the courts haven't either."

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