Canadian HR Reporter

CANADIAN HR REPORTER May 18, 2015 14 NEWS NiagaraInstitute.com conferenceboard.ca Tools for Leadership Success Niagara Institute Leadership Training • Publications • Webinars principle that you can't be sub- ject to unreasonable search and seizure, was there reasonable ex- pectation of privacy in the offi ce? I think there's defi nitely people who would argue there would be a rea- sonable expectation of privacy in your offi ce, but that sort of thing can be modifi ed by things like em- ployment policies which say, 'In event of an investigation, we may do x, y and z; for example, engage in surveillance,'" she said. Citing R. v. Cole, in which a teacher had child porn on his computer and the Crown con- ceded the school board was sub- ject to the charter, Wasser said the charter would probably come more into play if the TDSB tried to let the principal go and wanted to admit evidence into the hearing of his misconduct. en there's common law and, in Ontario, the tort of intrusion upon seclusion cited in Jones v. Tsige in 2012. " at's a pretty high standard… and one of the elements of it is that there's no lawful authority for this for the intrusion," she said, add- ing the tort talks about inten- tionally intruding "physically or otherwise" upon the seclusion of another and invasion of privacy that's "highly off ensive to a rea- sonable person." is recent situation falls right into the tort of intrusion upon seclusion, said Natalie MacDon- ald, founding partner at Rudner MacDonald in Toronto, adding there are three prongs to the test: the conduct must be intentional, the defendant must have invaded the plaintiff 's private affairs or concerns without any lawful jus- tifi cation, and a reasonable person would regard the invasion as high- ly off ensive and causing distress, humiliation and anguish. " e issue here is that, as I un- derstood it, the principal had no idea whatsoever that he was be- ing videotaped and that he had a reasonable expectation of privacy, particularly in the principal's of- fi ce. And, in addition to his own privacy, he had other individuals inside his offi ce who also had an expectation of privacy." is kind of surveillance could be warranted in a case where em- ployee theft is suspected and the only way to prove it is to capture the person on videotape, she said. " e reason that's acceptable is because there's a legitimate, lawful reason for it." Writing a book is not like steal- ing money from a company — they're two diff erent off ences, said MacDonald. "You only really resort to a video camera as a last ditch eff ort and... the only time I can think of it applying would be in theft, cases of theft or cases, I suppose, where maybe there's bullying and harassment." This principal would have a right to sue for damages for the tort of intrusion upon seclusion and potentially damages for men- tal distress, she said. Whether it's a public school or private organization, an employer has to be very careful about using covert video surveillance, said Roland Hung, an associate at Mc- Carthy Tétrault in Calgary, citing sources such as the privacy com- missions of Canada and Alberta which generally oppose the use of covert video surveillance unless it passes a three- or four-part test. For example, Canada's privacy commissioner says an employer must consider whether the mea- sure is necessary for the specifi c need, said Hung: Is it likely to be eff ective in meeting that need? Is the loss of privacy proportional to the benefi t gained? Is there a less privacy-intrusive way for achiev- ing the same end? "The privacy legislation in Canada both federally and pro- vincially generally deals with the concept of reasonableness and whether the collection, use and disclosure is 'reasonable.' And reasonable means necessary un- der the circumstances, so I would suggest that no, it wasn't," he said. One other issue is the possi- bility of a constructive dismissal claim, said Wasser, citing the 2008 case of Colwell v. Cornerstone Properties, where the employer installed a video camera above an employee's desk without her knowledge. When she found out, she quit and claimed constructive dismissal — and the court agreed. "It considered briefl y whether there was another invasion of pri- vacy type of tort but it didn't end up deciding and this was before Jones v. Tsige," she said. "So now, I would suspect, if someone was to make a constructive dismissal claim on the basis of these facts, they would add on at least a claim for intrusion upon seclusion." ere were additional aggra- vating factors in Colwell, such as a poor explanation from the employer in trying to explain it was investigating for theft from the offi ce but the court said this dishonest, disingenuous explana- tion destroyed the trust between the parties, said Wasser. "It's slightly distinguishable but the facts are similar enough that you would expect, if the principal was to try a constructive dismissal claim, that (the Colwell) case would be looked at and considered as be- ing a precedent for the theory that covert video surveillance could be a constructive dismissal." Factors to consider The lack of a voice recording might work in the school board's favour, but it's also about looking at whether the camera was on continuously for days or weeks and where the camera was point- ed, said Wasser. "Typically, video recording is viewed as fairly invasive, it tends to fall on the high end of invasive- ness so (it's about asking): What evidence did the school board have that there was misconduct? Were there other ways they could have investigated without resort- ing to this?" It's also important to know who was accessing the records, she said, such as whether it was confi ned to only the people who had a need to know. Having something about sur- veillance in a policy can help but there still have to be reasonable suspicions, with surveillance car- ried out in reasonable manner. "You don't need consent to in- vestigate employee misconduct but to put people on notice that they shouldn't 100 per cent have an expectation of privacy," said Wasser. "Whether that saves you, maybe not, depending on how you've done it but at least it would be a factor in the employer's fa- vour if they do have that." The question is whether the employer could have achieved the same end using less privacy-in- trusive means, such as computer software or keystroke monitoring. " e standard might be lower for keystroke because it's less in- vasive, in some ways, than a video surveillance. In other ways, it might actually be more invasive because you may potentially be getting people's passwords," said Hung. And even if an employer does put out warnings and cautions, that would probably make for a pretty poor work environment, he said. "If we put all this privacy stuff aside, from an employment per- spective, if the end goal is to dis- cipline this principal for writing a novel or book on school time, what you really should be doing is a proper investigation, at the end of the day, and documenting that, and perhaps interviewing him and asking him some of the questions more directly." All this is not to say employers should never do video surveil- lance, said Hung — it's about mak- ing sure you give proper notifi ca- tion, setting out the purposes for why you're using it and ensuring there's no other reasonable means to achieve the same purposes. SURVEILLANCE < pg. 1 Is it 'reasonable'? Are you looking to reach occupational health and safety professionals across the country? Get your listing in the Health and Safety section of HR Vendors Guide online and in print. Visit www.hrreporter.com/hr-vendors-guide to enter your firm's information. Visit www.hrreporter.com/hr-vendors-guide HR VENDORS GUIDE HR VENDORS GUIDE Attention OHS vendors and suppliers Daniel Therrien, Canada's privacy commissioner. The commission, along with its provincial counterparts, generally opposes the use of covert video surveillance unless it passes a three- or four-part test, according to Roland Hung, an associate at McCarthy Tétrault in Calgary. Credit: Chris Wattie (Reuters)

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