Area of Law: Private Investigation
Answer # 981
Cameras and audio tapes in the workplaceRegion: Ontario Answer # 981
The use of surveillance cameras in the workplace in Canada is quite common. Often, surveillance cameras are installed to deter theft, vandalism, assault and sexual harassment. Hidden cameras are also used to secretly record suspected criminal or improper activity. Video surveillance is common in retail stores, financial institutions, manufacturing plants, casinos and wherever cash or inventory is found. In many cases, employers are now using hidden and even openly disclosed surveillance cameras to routinely record job activities. Does the employer have that right? Generally speaking, Canadian courts have not looked favourably on employers who install surveillance cameras to spy on employees without good reason.
Surveillance in the non-unionized workplace
In the non-unionized workplace, employees enjoy a general right to privacy unless they give it up in their employment contract or otherwise waive the right expressly. However, in civil court, employers have used surveillance tapes in wrongful dismissal cases to prove they had “just cause” to dismiss an employee. For example, a worker pushing or threatening a manager.
Surveillance may infringe upon an employee’s right to privacy if cameras are installed only to monitor the general conduct, behaviour or efficiency of a specific employee or group of employees. If, however, the camera is installed as an investigative aid for a specific time to monitor an area for suspected criminal activity, the surveillance is likely justified. The key question is often whether there is a reasonable expectation of privacy.
If, for example, an employee is in plain view of the public, then the expectation of privacy is not reasonable. Employees and the general public who use the front lobbies of businesses, customer service areas, waiting rooms or parcel pick-up areas would also have little expectation of privacy. In washrooms, change areas and locker rooms, however, it is reasonable for anyone (employee or customer) to expect privacy. Simply put, an employer would likely not be allowed to target particular workers without cause, but may be able to target general areas in the non-unionized workplace with surveillance.
In criminal matters, Canada’s Charter of Rights and Freedoms has been used to protect workers’ privacy in non-unionized settings. A worker “caught on tape” committing a crime could argue at the criminal trial that there was a reasonable expectation of privacy in the circumstances (for example, in a workplace washroom) and that the right to privacy had been infringed so as to “bring the administration of justice into disrepute.”
The worker could then ask the judge to exclude from evidence the videotape that showed the employee, for example, committing theft or vandalism. If the court held the worker’s privacy rights had been infringed and excluded the videotape, the accused worker might be acquitted.
Surveillance in the unionized workplace
Unionized employees should look to their collective agreement to see if it prohibits management’s use of video surveillance to observe workers. In a unionized workplace, video surveillance has been used successfully to monitor employees’ performance and investigate workers suspected of criminal activity. When unions grieve for workers disciplined by the employer, management will often tender videotapes as evidence. The tapes are used to prove discipline was justified because the employee broke a workplace rule or regulation, engaged in behaviour that violated the collective agreement or committed a criminal act.
In a union dispute, a labour arbitrator, not the courts, will lay down the rules governing use of surveillance. Labour arbitrators usually consider the following questions when deciding whether they should view management’s surveillance videotape of a unionized worker:
- Was it reasonable, in all of the circumstances, for management to request video surveillance of the worker?
- Was the surveillance conducted in a reasonable manner?
- Were other alternatives open to management to obtain the evidence it sought?
If the first two questions are answered “yes” and the third is answered “no,” then the surveillance videotape will probably be viewed.
Does an employer have to give notice, such as using signs, that there is video surveillance?
Employers who want video surveillance in a general area should post notices and signs in conspicuous places that are easily readable, even from a distance. Wherever they are placed, the signs and notices should clearly convey the message that the area is being monitored. The purpose of the signage is to remove any reasonable expectation of privacy. Signs and notices should be written in both of Canada’s official languages, English and French. In retail stores, banks or businesses in areas where other languages are spoken, multilingual signs should be posted. For greater impact, the signs and notices can even be hung beneath a camera attached to a video monitor displaying a live action picture.
Is audio surveillance allowed in the workplace?
Many surveillance cameras are capable of recording not only pictures, but also sound. Recording private communications without the consent of those speaking or without legal authority, such as a warrant issued to police by a judge, is a criminal offence. A key aspect of this area of law is the expectation of privacy of those involved in the conversation. If there is a reasonable expectation of privacy, then permission or legal authority must be sought to record or listen in on conversations using electronic devices.
In Canada, surveillance cameras can only be used to record video, not audio communications.
More information on privacy laws in the workplace can be found from both the Office of the Information and Privacy Commissioner of Ontario, and the Office of the Privacy Commissioner of Canada.
For advice and assistance in using surveillance in a workplace and other investigation services, contact our preferred Investigators, Smith Investigation Agency .
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