GSB# 2019-2154

UNION# 2019-0999-0023

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 23 and 26, April 20, 2021

DECISION

1Correctional facilities have hundreds of surveillance cameras to ensure the safety and security of staff, inmates and the facilities themselves. The issue before me is the limits on the use of those surveillance cameras, and information obtained from them, to monitor the performance of the employees of those correctional facilities.

2This is a Union grievance. There are a number of other individual or group grievances outstanding with respect to the use of surveillance equipment in correctional facilities across the Province which have been consolidated with this grievance. By decision dated July 20, 2020, I directed the Union to choose a number of reference cases for determination. The other grievances were to be held in abeyance pending determination of the reference cases. I also directed that the evidence in chief for the reference cases would take the form of declarations which might be subject to cross-examination. This is the decision with respect to the reference cases advanced by the Union.

3The Union’s position is based upon the “common law” of privacy articulated by arbitrators and the specific language of the parties’ collective agreement. In particular, the Union relies upon Appendix COR10 which reads as follows:

Revised: January 24, 2013

Letter of Understanding

Surveillance in Correctional Workplaces

The parties agree to the following regarding use of surveillance and electronic equipment in the workplaces:

Purpose

The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry. Information obtained may be used for protection against criminal acts such as theft, depredation and damage to property.

Advisement

The Employer shall notify the Union of any increases in use of surveillance equipment. In instances that the Employer is relying upon any type of electronic audio or video recordings for discipline or investigative purposes, the Employer shall notify the Union prior to holding a meeting with the employee for the purpose of investigation, that the Employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will provide a copy of such recording to the Union, as soon as reasonably practical, upon request.

The use of electronic monitoring/surveillance equipment is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance.

Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution.

4The Union’s position is that Appendix COR10 fetters the Employer’s use of surveillance equipment in several ways. First, the Purpose Clause identifies the specific purpose of the equipment: “for safety and security of staff, inmates and property”. In order to achieve that purpose, Appendix COR10 then fetters the Employer’s rights with respect to the information it obtains to use “for protection against criminal acts such as theft, depredation and damage to property.” The second last paragraph of Appendix COR10 further restricts the Employer’s use of surveillance equipment by precluding its use for supervising or managing or evaluation of employee performance. The Union asserts the Employer’s use of surveillance equipment, or information obtained, has breached these restrictions, as illustrated by the specific reference cases it has advanced.

5The Employer’s position is that while Appendix COR10 identifies purposes for surveillance equipment, it does not say that surveillance equipment is to be used exclusively for those purposes. Nor does it say that information obtained can only be used “for protection against criminal acts such as theft, depredation and damage to property”. With respect to supervising or managing employees, Appendix COR10 only provides that surveillance equipment is not be used as a replacement for supervising or managing employees: this does not preclude it from being used for those purposes. The Employer asserts the examples advanced by the Union do not breach Appendix COR10 or any other provision of the collective agreement.

6The parties cited a number of authorities in support of their positions, all of which I review below. The parties also provided detailed submissions with respect to their differing interpretations of Appendix COR10. The parties disagreed with respect to whether the Union had established a breach of the collective agreement in each of the reference cases which it advanced.

7This dispute must be determined on the basis of the specific language of the collective agreement between the parties. That language must be interpreted within the legal context in which it was negotiated. Accordingly, I will commence by reviewing the general principles which emerge from the cited authorities with respect to the use of surveillance cameras in a workplace. I will then move on to consider the specific language to which the parties agreed in Appendix COR10. I will then apply the resulting principles to the reference cases advanced by the Union and determine in relation to each whether or not the Union has established a breach of the collective agreement.

8I note that neither party referred to any applicable employment related legislation. Accordingly, my analysis contains no discussion of any such legislation.

9As a final preliminary point, I note that one of the reference cases advanced by the Union related to a grievance which had been settled by the parties. Since the purpose of this decision is to provide guidance with respect to the many other outstanding grievances, the parties agreed that the Union might rely on that case as a hypothetical example, but that I should anonymize its facts.

General Principles Applicable to Surveillance in the Workplace

10The Union argues several principles emerge from the case law. First, it is generally accepted that employees have a general right to privacy in the workplace. Second, that general right arises from the common law, legislation and contract. Third, that privacy right applies to acts of surveillance, whether overt or covert. The Union concedes that the surveillance at issue in this case is overt, and overt surveillance is generally considered less offensive than covert surveillance. Fourth, the right to privacy applies both within and external to the workplace. Fifth, the right to privacy is influenced, but not controlled, by the Charter. Sixth, the right to privacy is not absolute. Rather, it is measured by what is reasonable in the specific circumstances of the case. Seventh, arbitrators generally balance the competing interests at play: an employee’s right to privacy versus the employer’s legitimate business interests. Eighth, there is a balancing which is done to determine what is reasonable in circumstances. Ninth, each case has to be decided on its unique facts and applicable contract. Tenth, surveillance may be utilized to target theft, safety and security. The Union made reference to a number of cases, all of which I discuss below.

11The Employer focused its argument on the proper interpretation of Appendix COR10 and the facts of the specific representative cases before me. Nonetheless, the Employer also made reference to several cases, all of which I discuss below.

12The cases provided by the parties are not, as observed by the Union, precisely on point. For the most part, they address the purposes which permit an employer to use surveillance cameras and the admissibility of evidence obtained in fulfillment of those purposes. Different “tests” are typically said to apply depending on whether the surveillance was covert or overt. In the case before me, the surveillance is overt. There is no dispute that the surveillance cameras are required for safety and security purposes. Further, there is no dispute that evidence obtained from the cameras may be used for safety and security purposes related to specific incidents. The disputes relate to the use of the cameras for other purposes, such as monitoring performance of employees, and the use of evidence obtained during the investigation of specific incidents for purposes other than the one which prompted the investigation. The analytical frameworks of the cases provided are thus not directly applicable. In my view, however, there are certain principles which may be extracted from those decisions which assist in a restatement of the appropriate analytical framework. Further, that restated analytical framework is helpful to the issues at hand.

The Case Law

13The Union refers to St. Mary’s Hospital and H.E.U., (1997) 1997 CanLII 25040 (BC LA), 64 LAC (4th) 382 (Larson). The award is from British Columbia (“BC”). Arbitrator Larson undertook a survey of the privacy cases to date. Within the context of that review he made a comment relied upon by the Union before me. At p. 391, Arbitrator Larson referred to the decision of Arbitrator Burkett in Thibodeau-Finch Express, (1988), 1988 CanLII 9166 (CA LA), 32 LAC (3d) 271, as the “leading case on the installation of electronic surveillance” and stated in that case: “The arbitration board expressed a general view that a full-time closed circuit television system, used to observe the work performance and conduct of employees, must be seen as seriously offensive.”

14Arbitrator Larson suggested several principles emerged from his review of the jurisprudence (p. 396 et. seq.). He distinguished cases involving bodily intrusions upon the person from cases involving searches of a person’s belongings or surveillance of the person. (I note that in doing so, Arbitrator Larson foreshadowed the distinction made by the Ontario Court of Appeal in Jones v. Tsige between personal privacy and territorial privacy, discussed further below.) In Arbitrator Larson’s view, cases involving bodily intrusion engaged the law of trespass and assault. Absent consent, such intrusion is prohibited (p. 397). There is no balancing of the interests of the employer and the employee. By contrast cases involving search of personal effects engage the right to privacy. Arbitrator Larson stated (at p. 397): “while the right to privacy is considered to be fundamental, the authorities are consistent that the right is not absolute and that it may give way to the interests of the employer, in proper circumstances, where it is determined to be necessary to secure its property and staff.” Arbitrator Larson considered surveillance cases to be analogous to cases involving searches of personal effects, stating (at p. 398): “The surveillance cases involve a true measure of the right to privacy but it is important to understand that the right is measured on a variable scale depending upon a number of factors.”

15Arbitrator Larson then considered three circumstances: “benign” surveillance for the purposes of training; overt surveillance, “conducted in order to provide security to both the employee and the employer”; and covert surveillance. It is Arbitrator Larson’s comments on the second circumstance which are particularly germane to the issues before me (p. 398):

Next are cases involving surveillance conducted in order to provide security to both the employees and the employer. Security surveillance would typically involve open electronic monitoring, The cameras are not hidden and will often be installed with the implicit consent of the union. Where they are installed with the full knowledge of the union, which does not then grieve the installation, the union would likely be taken to have acquiesced in any infringement of privacy which is inherent in the installation.

On this analysis, one of the issues becomes whether the Union’s consent can be implied. If so, then the Union “would likely be taken to have acquiesced in any infringement of privacy which is inherent in the installation” (my emphasis). In my view this analysis is problematic. Consent to surveillance for one purpose does not constitute consent to surveillance for other purposes.

16At p. 399, Arbitrator Larson set out certain “tests” which in his view were to be applied in balancing employees’ right to privacy with the employer’s interests in cases of covert surveillance.

After having determined the type, purpose, place and frequency of hidden surveillance, the balancing of interests involves the application of specific tests. The onus is on the employer to justify the encroachment upon the employees’ right to privacy by demonstrating that there is a substantial problem and that there is a strong probability that surveillance will assist in solving the problem. The employer must demonstrate not only that there is cause to initiate surveillance but that it is not in contravention of any terms of the collective agreement: Re Thibodeau-Finch Express Inc.; it must show that it has exhausted all available alternatives and that there is nothing else that can be reasonably done in a less intrusive way; Re Algoma Steel Corp.; and finally, it must ensure that the surveillance is conducted in a systematic and non-discriminatory manner: Re Steels Industrial Products.

17It is of course axiomatic that an employer’s use of surveillance cannot violate any specific term in a collective agreement. The issue is whether an employer’s use of surveillance is otherwise subject to arbitral review and if so on what basis. Arbitrator Larson’s tests arise from a survey of a large number of surveillance cases. The jurisdictional basis for the review conducted by the arbitrators in those cases is not always apparent from Arbitrator Larson’s reasons. Further, it may well vary, since some of the cases arose in provinces with applicable privacy legislation (of which BC is one) and some did not. In the case before me, for reasons stated below, I find I have jurisdiction to review the Employer’s use of surveillance on a reasonableness basis, involving the balancing of employer and employee interests. For the purposes of conducting that balancing exercise, unlike Arbitrator Larson, I do not find it useful to afford pre-eminence to a particular factor without considering the specific circumstances of a case. The availability of alternatives, for example, is a factor which will likely weigh heavily against an employer’s use of surveillance, but it is part of the balancing exercise, not the end of it.

18The Union relies upon Ebco Metal Finishing Ltd. and I.A.B.S.R. I., Shopmen’s Loc. 712, (2004) 2004 CanLII 94727 (BC LA), 134 LAC (4th) 372 (Blasina). This is another covert surveillance case from BC. At issue was the admissibility of evidence obtained as a result of covert surveillance. Arbitrator Blasina reviewed a great deal of case law and adopted a balancing of interests test. Arbitrator Blasina held that where a balancing of interests resulted in the conclusion that the employer’s actions were not reasonable, the appropriate remedy was to exclude otherwise relevant evidence, notwithstanding the fact that the evidence in question might be determinative in a discharge case: see pp. 401- 403. I agree that an arbitrator has jurisdiction to exclude such evidence in an appropriate case.

19In the course of his review of the caselaw, Arbitrator Blasina quoted at length from a number of cases. The Union relies on a number of the quoted statements.

20At p. 383, Arbitrator Blasina quotes from Arbitrator Munroe’s decision in Pope & Talbot Ltd. and P.P.W.C., Loc. 8, [2003] B.C.A.A.A. No. 362 (QL), 123 L.A.C. (4th) 114:

One begins with a clear appreciation that as between the employer and employee, the latter’s reasonable expectations of privacy are not set aside simply by the entering into the employment relationship; and further, that while the Canadian Charter of Rights and Freedoms is not per se applicable to private sector disputes like this one, the values embedded in the Charter do appropriately influence the development of our common law and arbitral jurisprudence ….

I agree. Many cases could be cited for similar propositions. In my view, express consideration of the extent and nature of the privacy interests of the employee is consistent with the development of the law under the Charter and thus permits the expression of Charter values in this area of arbitral jurisprudence. Having said that, other than referring to Jones v. Tsige, discussed further below, the parties did not address any relevant law under the Charter. Accordingly, I do not address that issue further.

21At p. 384, Arbitrator Blasina continues to quote from Arbitrator Munroe, who in turn is quoting from Arbitrator Kelleher’s decision in Unisource Canada Inc. v. CEP, Loc. 433, (2003) 2003 CanLII 89592 (BC LA), 121 LAC (4th) 437:

In my view surreptitious surveillance can only be justified where: (i) there is a substantial problem; (ii) there is a strong possibility that surveillance will be effective; and (iii) there is no reasonable alternative to surreptitious surveillance.

The threshold is lower with respect to surveillance that is not surreptitious, i.e., announced to the employees affected. There is no blanket prohibition. Rather, the test is whether the surveillance is a reasonable exercise of management rights in all of the circumstances of the case.

The Union relies on this passage for the proposition that in order to be permissible, overt surveillance must constitute a reasonable exercise of management rights.

22This passage raises several issues. The first is the source of an arbitrator’s jurisdiction to review the exercise of management rights on a standard of objective reasonableness. This jurisdictional question is complex, and not one on which the parties joined issue before me. It suffices to say that the Employer did not challenge the Union’s assertion that its actions in this case were subject to review on a reasonableness standard. I find that they are subject to review on that basis, but for the limited reasons stated below under my review of Lenworth Metal. It is not necessary for me to consider whether there is broader jurisdiction to review the Employer’s decision to make use of overt surveillance, and I decline to do so.

23The second issue raised by this passage, and indeed by many other arbitral awards, is the suggestion that different analytical frameworks are applicable to cases of covert and overt surveillance. I agree that in general an employer will have to make out a stronger case for covert surveillance. I disagree, however, with suggestions that different analytical frameworks apply. Rather, in my view the analytical framework is the same: an employee’s reasonable expectation of privacy is to be balanced against the legitimate interests of the employer. The distinction between covert and overt surveillance arises from express consideration of the nature of an employee’s expectation of privacy. In general, if an individual is aware they are, or may be, subject to surveillance, the reasonable expectation of privacy is lower. By contrast, if an individual has no reason to believe they are or will be subject to surveillance, the reasonable expectation of privacy is higher. The reasonableness of an individual’s belief requires consideration of the circumstances. Employees in a workplace with overt surveillance know they are subject to that surveillance. (The propriety of the employer engaging in that surveillance is a separate issue.) Employees, however, are not generally aware of covert surveillance. Further, it is reasonable for employees to expect that they will not be subject to surveillance in private spaces such as washrooms or their own homes.

24The Union cites pp. 386-7 of Ebco Metal for the proposition that, at least in relation to covert surveillance, an employer must show that “such a course is the only one open to it and the only way in which the truth can be ascertained”. In my view, analysis of the interaction of reasonable expectation of privacy and legitimate employer interests is not served by the proliferation of this, and other, rules. In part this is because it spawns a bewildering array of exceptions and distinctions. More fundamentally, however, it is because it diverts the arbitral inquiry from what should lie at its heart: the balancing of an employee’s reasonable expectation of privacy and an employer’s legitimate interests through consideration of what those respective interests are in a particular context.

25The Union relies on statements at p. 391 and p. 393 of Ebco Metal for the proposition that an employer cannot engage in covert surveillance “at its pleasure, just to see what turned up.” I agree that where an employer’s use of surveillance is subject to review on a reasonableness basis, the balancing of employer and employee interests necessarily implies that an employer cannot engage in covert surveillance “at its pleasure, just to see what turns up”. I would add that I do not understand the Employer in this case to be asserting anything to the contrary.

26The Union relies on a statement at p. 392 of Ebco Metals for the proposition that “video surveillance is not itself a management right, but rather a tool for the supervision of employees or the physical environment”. I agree, but think this adds little to the analysis where an employer’s use of surveillance is subject to review on a reasonableness basis. The issue remains whether an employer’s use of video surveillance for the purpose of supervision of employees or the physical environment is reasonable in the circumstances.

27Both the Union and the Employer rely upon R.W.D.S.U. v. McKesson Canada Corp., 2010 CarswellSask 787, [2010] S.L.A.A. No. 26, 104 C.L.A.S. 85, 201 L.A.C. (4th) 60 (Hood). This is an overt surveillance case from Saskatchewan. At para. 41, the arbitrator made a statement upon which both the Union and the Employer before me rely. Arbitrator Hood stated:

41 I am also satisfied there is an agreement between the Union and the Employer that the video surveillance will be used for the security and protection of the Employer's property and its employees. The evidence does not indicate there was any breach of this agreement. The Union, at best, speculates that the cameras are used by supervisors to monitor employee performance with a view to discipline, but there is no direct evidence that such has occurred. The fact that supervisors may from time to time see employee activity on the cameras does not, in and of itself, mean the agreement is breached. It is inevitable that the cameras (especially those in the shipping/receiving area that are doing their job to guard against intrusion and inventory disappearance at the overhead doors) will pick up employee activity in the area, .…

28The Union relies upon the statement for the proposition that the parties can reach an agreement limiting an employer’s right to make use of surveillance. This is not in dispute. What is in dispute is the degree to which Appendix COR10 limits the Employer’s right to engage in surveillance or make use of the information which it produces, and whether any such limits have been contravened on the facts before me. I return to those issues below.

29The Employer relies on the statement for the proposition that incidental viewing of video surveillance does not constitute using the video for any particular purpose. I agree with this proposition. Whether the fact that an employee’s privacy interests are unreasonably impinged upon by such incidental viewing is, however, a separate issue to which I return below.

30The Union relies upon Lenworth Metal Products Ltd. v. USWA, Local 3950, (1999), 1999 CanLII 35826 (ON LA), 80 LAC (4th) 426 (Armstrong), an Ontario decision. In that case, the union filed a policy grievance with respect to the employer’s installation of overt surveillance cameras at various locations within the workplace as well as certain external locations. The award is addressed to a preliminary objection by the employer. The employer argued that as no provision of the collective agreement was engaged, the arbitrator lacked jurisdiction to deal with the grievance. I note that because the case arose in Ontario, the BC privacy legislation was obviously not applicable and there was no suggestion of any analogous Ontario legislation. Arbitrator Armstrong engaged in an extensive review of jurisprudence. He concluded there were three possible avenues for challenging the installation of surveillance equipment under the collective agreement before him. First, the introduction of surveillance equipment is tantamount to introducing a workplace rule: that all employees must work under video surveillance. The management rights clause of the specific collective agreement before him permitted the employer to make “reasonable rules”. Accordingly, the introduction of surveillance cameras was subject to challenge on the basis that it was not a reasonable rule. Second, there is a general requirement that rules which might have disciplinary consequences must be reasonable so that they are not at odds with the just cause provisions of a collective agreement. Accordingly, the reasonableness of the rule might be challenged on that basis as well. Third, Arbitrator Armstrong was of the view that the exercise of management rights was subject to challenge on the basis that it was not done for legitimate business interests. Arbitrator Armstrong opined that the introduction of security cameras for the purpose of increasing security would meet this standard.

31I agree with Arbitrator Armstrong’s conclusion that the installation and use of surveillance equipment is tantamount to introducing a workplace rule, as employees who refuse to work on the basis that they are under surveillance may be subject to discipline. Further, as was the case before Arbitrator Armstrong, the management rights clause of the collective agreement before me provides that management may make “reasonable rules”. Put differently, the management rights clause qualifies the Employer’s right to make rules with a reasonableness requirement. In addition, because of the potential for disciplinary consequences, the rule must be reasonable in order not to run afoul of the just cause provision of the collective agreement. Accordingly, in my view, the Employer’s installation and use of the surveillance cameras at its correctional facilities is subject to review on the basis of reasonableness. That is sufficient for the purposes of the case before me. I do not, therefore, find it necessary to address Arbitrator Armstrong’s third, more general proposition: that the exercise of management rights is subject to challenge on the basis that it was not done for legitimate business interests.

32The Union relies upon Prestressed Systems Inc. and Labourers’ International Union of North America, Local 625, (2005), 2005 CanLII 94167 (ON LA), 137 LAC 4th 193 (Lynk), another Ontario decision. At issue was the admissibility into evidence of a surveillance video shot covertly in a public space outside of the workplace. Arbitrator Lynk considered 15 years of jurisprudence. He found that even in the absence of a statutory or collective agreement right, unionized employees have a “general legal entitlement to privacy respecting the employment relationship” (at pp. 203-4):

The general right of an employee to some degree of privacy had been recognized by arbitrators with sufficient regularity and volume in recent years to be now considered as forming part of the “common law” of the unionized Ontario workplace. This entitlement is not absolute, for it always must be weighed against the employer’s legitimate interests. ….

Employers are able to intrude upon these interests in two accepted ways. One way would be through a contractual agreement between the union and an employer that expressly limits an employee’s entitlement to personal privacy. Thus, the general right to privacy can be contractually derogated by the parties, even beyond what might be considered to be reasonable and appropriate in an industrial relations context, but always subject to human rights obligations arising from statute. A second way would be where, even in the absence of a specific collective agreement derogation, the employer can demonstrate persuasive business and industrial reasons to justify an intrusion.

33Arbitrator Lynk noted that some arbitrators have disagreed with this approach and taken the view that there is no general right by an employee to privacy, as no source for such a right of privacy otherwise exists at common law or statute in Ontario. Arbitrator Lynk rejected this criticism on the basis that the “common law” of unionized workplaces provides the source of the right. I would note that to this it can now be added that a common law right of privacy has since been recognized by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 OR (3d) 241. There is, however, a separate question as to whether or not a dispute about the breach of such privacy rights is in and of itself a “matter” over which an arbitrator has jurisdiction (see, for example, Ontario Public Service Employees Union (Andersen) v. Ontario (Ministry of Correctional Services), 2002 CanLII 45816 (ON GSB) (Brown)). Given that I have found that I have jurisdiction over the matter before me for the reasons stated under Lenworth Metal, I need not, and do not, address that question further.

34Commencing at p. 207 of his reasons, Arbitrator Lynk noted a debate between arbitrators with respect to the admissibility of surveillance video. Some, he stated, have applied a “relevancy test”: if the evidence is relevant, it is admissible. Some have applied a stricter standard of admissibility, requiring an employer to meet a “reasonableness test”. I would note this formulation of the debate is potentially misleading, as the “reasonableness test” is not a substitute for a relevancy test, rather it is an additional requirement for the admission of otherwise relevant evidence which engages the privacy interests of an employee. The formulation of the reasonableness test offered by Arbitrator Lynk was as follows (at pp. 210-11):

1. A ‘reasonableness’ test will examine: (i) whether the employer had a reasonable basis to engage in covert surveillance; and (ii) whether the surveillance was conducted in a reasonable manner.

2. Part of the inquiry will consider whether the employer had other reasonable alternatives to employ before engaging in the covert surveillance. The employer will not have to demonstrate that all other possibilities were exhausted before turning to the surveillance, but, as a factor in considering the reasonableness of the surveillance, it would have to explain why some readily available and less intrusive methods could not have accomplished the same goal.

3. Reasonableness will be measured on an objective standard.

4. What is reasonable will depend on the context. This would normally include considering such factors as: the basis of the employer’s suspicion of the employee; the nature of the potential harm to the employer’s enterprise; the degree of impairment to the trust factor; the alternatives available to obtain the required information; and the degree of intrusion caused by the particular surveillance method.

[Emphasis in original.]

35The fourth part of Arbitrator Lynk’s test includes factors primarily addressed to delineating the employer’s legitimate interests, in particular: “the basis of the employer’s suspicion of the employee” and “the nature of the potential harm to the employer’s enterprise”. Those factors are similar to those identified in other awards which have focused on the nature of the employer’s interests. However, unlike those awards, Arbitrator Lynk also sets out factors addressed to describing the nature and extent of the employee’s privacy interest, in particular: “the degree of intrusion caused by the particular surveillance method”; and “the degree of impairment to the trust factor”, at least to the extent that “trust factor” includes the employee’s trust of the employer. In my view, express consideration of the nature and the extent of the employee’s privacy interests is part of the appropriate analytical framework.

36Notably in Prestressed Systems, Arbitrator Lynk excluded otherwise relevant evidence on the basis that the impingement of privacy interests was not justified on the basis of the reasonableness test: see p. 216.

37The Union relies upon Kadant Carmanah Design and IAMAW, District 250, 2015 CanLII 79278 (BC LA), 2015 CarswellBC 3521, [2015] BCCAA No. 111, [2016] BCWLD 335, 125 CLAS 145, 266 LAC (4th) 119 (Lanyon). I found this award useful as it is more recent and reviews arbitral jurisprudence from British Columbia, including St. Mary’s Hospital, as well as from Ontario, and because it considers and quotes at length from the Ontario Court of Appeal decision, Jones v. Tsige, which recognized the tort of intrusion upon seclusion.

38Arbitrator Lanyon noted that a balancing of interests approach emerges from the arbitral jurisprudence: the employee’s right to privacy is weighed against the employer’s legitimate interests on a reasonableness standard. Within the context of surveillance, he cited with approval (at para. 71) the following formulation of the test stated in Brown & Beatty:

Where the reasonableness approach is taken, arbitrators assess first whether the surveillance of an employee’s activity was reasonable, and secondly, whether the surveillance was conducted in a reasonable manner proportional to the employer’s legitimate interests.

39Commencing at para. 73 of his decision, Arbitrator Lanyon quoted from Jones v. Tsige in which the Court of Appeal stated (at para. 43 of the Court’s reasons): “the right to privacy has been accorded constitutional protection and should be considered as a Charter value in the development of the common law of defamation”; and (at para. 45): “While the Charter does not apply to common law disputes between private individuals, the Supreme Court has acted on several occasion to develop the common law in a manner that is consistent with Charter values”. Arbitrator Lanyon then made the following observation:

74. The Court outlines three distinct privacy interests, including that of informational privacy:

41Charter jurisprudence has recognized three distinct privacy interests: Dyment, at pp. 428-29 S.C.R.; R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 2004 SCC 67, at paras. 19-23. The first two interests, personal privacy and territorial privacy, are deeply rooted in the common law. Personal privacy, grounded in the right to bodily integrity, protects "the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal". Territorial privacy protects the home and other spaces where the individual enjoys a reasonable expectation of privacy. The third category, informational privacy, is the interest at stake in this appeal. In Tessling, Binnie J. described it, at para. 23:

Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activities we are entitled to shield from the curious eyes of the state (R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60). This includes commercial information locked in a safe kept in a restaurant owned by the accused (R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16). Informational privacy has been defined as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others": A. F. Westin, Privacy and Freedom (1970), at p. 7. Its protection is predicated on the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit.

(Report of a Task Force established jointly by Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13).

Arbitrator Lanyon does not, however, derive specific conclusions from his consideration of Jones v. Tsige. At para. 78 he simply states:

It may be fairly stated that the “contours” of the balance between an employee’s right to privacy and the Employer’s right to manage and protect its workplace is one that will initially be developed in the arbitral forum; although ultimately that balance will be determined by the Courts.

40In my view, the act of surveillance engages an employee’s territorial privacy interests. The information obtained as a result of an undue intrusion upon an employee’s territorial privacy interests may be excluded in order to provide a meaningful remedy to the breach of those interests. While the information obtained from that surveillance may also engage an employee’s informational privacy interests, that issue was not argued before me. I would note only that the nature of those interests is discussed in Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services), 2016 CanLII 17002 (ON GSB), [2016] O.G.S.B.A. No. 29, 2016 CarswellOnt 5035, 126 C.L.A.S. 251, 269 L.A.C. (4th) 33 (Anderson). Issues related to personal privacy are also not before me. I note only that at least some arbitrators have expressed the view that the right to personal privacy is absolute with the result that the balancing of interests framework summarized below does not apply: see for example, the discussion in St. Mary’s Hospital referenced above.

41Arbitrator Lanyon went on to consider the difference between overt and covert surveillance. At para. 92 he summarized his conclusions. He expressed the view that the “right to privacy remains the same in both circumstances; that is, an employee’s right to privacy is balanced with the employer’s right to manage and protect its workplace.” He continued:

However, I find that covert surveillance is a more egregious violation of privacy because it is capable of causing more distress, anguish and embarrassment. This is because privacy is an integral part of a person’s psychological integrity and personal identity. Accordingly, covert surveillance requires a higher standard of reasonableness because it is highly offensive to the reasonable person.

42I agree that the differential impact of overt and covert surveillance on the privacy interests of the individual is a critical factor, if not the critical factor, in understanding the different treatment of the two. I would, however, frame this conclusion slightly differently. In my view, part of the balancing exercise requires considering the nature and extent of the privacy interests of the individual which are engaged in addition to considering the nature and extent of the employer’s legitimate interests. It is not that there is a “higher standard of reasonableness” which applies to the employer’s legitimate interests when the invasion of privacy is more intrusive, rather it is that the employer will need to show more compelling interests than it would were the invasion of privacy less intrusive.

43At para. 109, Arbitrator Lanyon made a comment which has some application to the issue before me:

Further, there is the issue of potential discipline. The Employer stated expressly in its notice to employees that the cameras will not be used for the purpose of disciplining employees with respect to their “performance”. Mr. Macey testified that the cameras have been used and will be used for the purpose of investigating safety incidents. I find this consistent with the purpose of the installation of these cameras. I leave the introduction of video surveillance evidence from these cameras with respect to other issues of discipline to future arbitration boards.

[My emphasis.]

In making this statement, Arbitrator Lanyon recognized that it is at least arguable that the evidence (i.e., information) obtained from surveillance cameras legitimately installed for one purpose, may not be admissible if tendered for another purpose.

44The Union relies upon Cascade Aerospace, Inc. and CAW-Canada, Local 114, (2009) 186 LAC (4th) 26 (Blasina), another decision of Arbitrator Blasina, this time arising from federal labour jurisdiction. At issue was the employer’s decision to install a covert surveillance camera in the lunchroom of a security sensitive workplace. The privacy rights said to be engaged arose from the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). The employer decided to install the covert surveillance because of recurrent vandalism and theft from vending machines located in the lunchroom. Management did not actively monitor the video feed, but reviewed it only when there was another incident of vandalism or theft. As a result of information obtained from the camera, two employees were terminated. This was the first the union learned of the covert camera. A grievance filed on behalf of one of the discharged employees and a union policy grievance were referred together to arbitration. The individual grievance was settled. As part of the settlement, the employer agreed to remove the covert camera. The arbitration award relates to the policy grievance. The policy grievance alleged, inter alia, a breach of Article 8.01 of the collective agreement. Article 8.01 was a management rights clause which provided in part that it was the exclusive function of the employer to: “Make and enforce and alter from time to time reasonable rules and regulations to be observed by the employees”.

45Arbitrator Blasina applied a four part test which had been developed under PIPEDA (see p. 59):

1. Is the measure demonstrably necessary to meet a specific need?

2. Is it likely to be effective in meeting that need?

3. Is the loss of privacy proportionate to the benefit gained?

4. Is there a less-privacy invasive way of achieving the same result?

He stated that he also was “mindful of the arbitral authorities which hold that surreptitious video surveillance must be based on more compelling circumstances than would overt surveillance” and at p. 59 made a comment upon which the Union relies before me:

[V]ideo surveillance is not acceptable as an ordinary method for supervising employees at work. The need for surveillance must be reasonable and sensitive to the balance of interests of the employer and the person affected.

Returning to the four part test, Arbitrator Blasina stated:

Included in the first question, I would think, is not only whether the measure was demonstrably necessary, but also whether the specific need itself was reasonable.

Arbitrator Blasina concluded the second test was met on the facts before him.

46Arbitrator Blasina addressed the third and fourth tests together. He noted that “adjudicators have been keen to protect against incursion into a lunchroom” (p. 60). Later he noted that a lunchroom is “a location where one’s fellow employees eat, and where they have every right to expect not to be watched” (p. 61). Nonetheless, he concluded (at p. 61) that “given the necessity for surreptitious surveillance, and the likelihood of it being effective, it would not seem improper to locate a hidden camera in the lunchroom, provided measures were taken toward limiting the scope of surveillance to the problem area, and no more.” Arbitrator Blasina concluded the employer had not satisfied this proviso because “the installer provided for a wider angle of coverage than necessary for monitoring the vending machines”. This however, was a result of “carelessness, and no more” on the part of the employer.

47At p. 62, Arbitrator Blasina stated:

Returning to the third and fourth questions, … I would conclude that the loss of privacy was not proportionate to the benefit gained (third question), but only because the hidden camera captured an area of the lunchroom beyond the vending machines. I would also conclude that there was a simple and less privacy invasive way of achieving the same end (fourth question), i.e. by limiting the scope of the camera to the vending machines.

Arbitrator Blasina concluded that the employer “thereby exceeded the due application of its management rights and was therefore in breach of Article 8.01 of the collective agreement.” Arbitrator Blasina granted only a declaration. He declined to award damages. I note he also stated that “it should not now be presumed that I would have declared the video evidence inadmissible for the purposes of the discharge grievance had the Grievor’s case not been settled”. As noted, the covert camera had already been removed. The award is silent as to whether or not he would otherwise have ordered its removal or restricted its scope of view.

48I am in general agreement with much of the approach adopted by Arbitrator Blasina in Cascade. He articulated four factors to be considered in the balancing of interests. He recognized that the balancing of interests was to be done in relation to a “specific need”. He expressly discussed not only the employer’s interests, but the employees’ expectations of privacy. He recognized a high expectation of privacy existed in the circumstances before him. Notwithstanding, he contemplated the possibility that expectation of privacy might yield to the employer’s interests on a balancing of interests, and indeed concluded on the facts before him that it should yield, albeit subject to a proviso which was not met. I note that because the impugned surveillance camera had been removed, Arbitrator Blasina’s award does not address whether the failure of the employer to satisfy the proviso would have resulted in an order that the camera be removed or an order that its scope of view be restricted. In my view, either remedy might have been appropriate depending on further consideration of the circumstances of the case.

49The Union relies upon William Neilson Dairy and Teamsters, Local 647, (2009) 182 LAC (4th) 403 (Howe), an Ontario arbitration award. At issue was the decision to install additional overt surveillance cameras within the workplace facility. The images could be viewed on a computer screen in a secure computer room and on a terminal in the office of the production manager. The images were stored digitally for 30 to 37 days until overwritten, and could be preserved longer by downloading on to DVDs. The employer’s purpose for installing the cameras related to the security and protection of its property from intruders and misconduct by employees. The “bio-security” of the product was a particularly important concern. The employer had accessed the recordings in response to specific incidents, and the information recorded thereon resulted in the imposition of discipline on at least one occasion.

50Arbitrator Howe applied Arbitrator Armstong’s reasoning in Lenworth Metal and found that because the surveillance cameras gave rise to the potential for disciplinary consequences he had jurisdiction to review that installation on a reasonableness standard. In doing so he adopted a balancing of interests approach: the problem which the employer was attempting to address was balanced against an employee’s interest in not being constantly surveilled and not having his or her image recorded. It is noteworthy that in this formulation Arbitrator Howe identifies two separate interests of the employee, one related to the fact of being subject to surveillance and the other related to the recording of his or her image as a result of that surveillance. This distinction is reflected in the remainder of Arbitrator Howe’s reasons.

51Arbitrator Howe concluded that the legitimate interests of the employer, including the deterrence effect of the cameras, justified the installation of the cameras. He then stated (at p. 410):

However, an order requiring some modifications to the existing system is warranted on the basis of the countervailing interest which the employees represented by the Union have in not being unduly surveilled and in not having their images recorded more frequently or longer than necessary.

52Arbitrator Howe then made a series of specific orders requiring the employer to change the field of view or reposition cameras so as to remove certain areas from surveillance and reduce the amount of time that employees would be captured with respect to other areas. Arbitrator Howe also stated (at p. 412):

As part of the aforementioned balancing exercise, it is also hereby ordered that images obtained from the internal camera system only be used as a tool to investigate bio-security threats or incidents, incidents of health and safety violations, and incidents of culpable conduct, with no real-time monitoring of employees for any other purposes, and no use of those images for the purposes of monitoring production, lateness, or attendance.

That is, the employer was restricted to using the images obtained from the cameras for the purposes which justified their installation in the first place.

53I turn now to the other cases referred to by the Employer.

54In R. v. March, 2006 ONCJ 62, 2006 CarswellOnt 1323, the accused was charged with illegal possession of cannabis. The cannabis was found in his backpack during a search at a correctional facility, at which he was then employed as a correctional officer (“CO”). The accused sought the exclusion of the evidence on the basis the search violated his rights under section 8 of the Charter. Section 8 of the Charter provides: “Everyone has the right to be secure against unreasonable search or seizure.”

55The court noted that the Supreme Court of Canada has held that section 8 protects reasonable expectations of privacy. It then stated:

63 The starting point in the section 8 analysis is the determination of the expectation of privacy that a Ministry employee can reasonably expect while on the premises of a correctional institution.

64 A correctional institution by its very nature is a place of heightened surveillance and scrutiny. It is highly regulated. Security issues are paramount. Access to the institution is strictly controlled for the safety and protection of inmates, visitors and staff.

68 The evidence adduced establishes that the problem of employee smuggling of contraband into institutions is fairly widespread and that the presence of contraband is a significant safety risk to inmates, correctional officers and visitors. Given the very nature of their workplace, correctional institution employees must expect that their activities within the institution will be subject to heightened scrutiny.

69 Employees of correctional institutions necessarily have a significantly reduced expectation of privacy within the correctional institution. A correctional officer's reasonable expectation of privacy in his or her personal property located on the premises of the institution is also considerably diminished.

56This decision highlights that in a criminal law context expectations of privacy must be objectively reasonable in the circumstances. In my view the same principle applies in an arbitral context. I also agree with the specific conclusion that the heightened surveillance and scrutiny inherent in correctional institutions means, on an objective basis, that employees’ reasonable expectations of privacy must be considerably diminished.

57The Employer cites Wire Rope Industries Ltd. v. U.S.W.A., Local 3910, 1982 CanLII 5086 (BC LA), 1982 CarswellBC 2620 (Chertkow) for the proposition that clear language is required to limit management rights. At issue there was whether a provision in the collective agreement which guaranteed an employee eight hours pay at their regular job, provided that there were sufficient hours of work “available in the employee’s regular job”, restricted the management right to determine whether there was work available. Arbitrator Chertkow found the provision was not sufficiently clear to restrict that management right. I would agree. In the case before me, as stated above under my review of Lenworth Metal, the introduction of surveillance cameras is tantamount to the introduction of a rule. The management rights clause qualifies the Employer’s right to make rules with a reasonableness requirement. Further, it is a rule with potential disciplinary consequences and therefore must be reasonable in order not to run afoul of the just cause provision of the collective agreement. In my view, this is sufficient clarity to qualify management rights with respect to the introduction of surveillance cameras. This right is further constrained by Appendix COR10, as I will discuss further below.

58The Employer cites Fraser Surrey Docks Ltd. v. I.L.W.U., Local 514, 2007 CarswellNat 2031 (Taylor), a decision of BC Arbitrator Taylor on a case within federal labour jurisdiction. At issue was the admission of evidence from overt surveillance cameras. The employer had an extensive overt video surveillance system of the workplace (a dock area) which was justified by security concerns and the particular regulatory regime under which it operated: see para. 169. The employer had concerns about employees bringing garbage from home and depositing that garbage in the employer’s bins and also concerns about theft of gasoline from gas pumps located in the dock area. A particular employee became a focus of those concerns and was ultimately fired for those reasons. His truck had been observed entering the dock area with bags of garbage through a camera trained on the entrance. Cameras were then used to track his movements. The employer sought to introduce the images captured into evidence. The employer had also repurposed one security camera to be permanently trained on the gas pumps. While not specifically targeted at any employee, the camera had captured images of the employee in question which the employer sought to introduce as evidence in support of its allegation that the employee had stolen gasoline from those pumps.

59Arbitrator Taylor appears to have concluded that there was an “arbitral test” in relation to privacy which was essentially similar to that developed under PIPEDA, and described by Arbitrator Taylor as a “context sensitive balancing of interests”: see para. 168. Arbitrator Taylor noted that the issue before him was not whether the employer was entitled to have its video surveillance system. Rather the issue was whether the employer was justified in using its video surveillance system in the manner that it did: see para. 170. He continued:

171 Where video surveillance is justified, it may record different types of misconduct than the risk that justified the video surveillance in the first place: see e.g. PIPEDA Case Summary No. 264 (February 19, 2004); X v. Y, supra. An employer is not required to overlook video evidence of employee misconduct merely because it is captured on a security video. In the case at hand, however, the instances of alleged employee misconduct were not just captured incidentally. In each instance, there was a decision made to alter the course of a camera in order to capture employee misconduct, thereby collecting more (or at least different) information than would otherwise have been collected. .…

172 [T]he decisions to alter the course of the cameras to collect new information relating to employee misconduct do, in my view, give rise to a requirement to justify each such instance of surveillance. The Employer's submissions recognize that requirement. Nonetheless, that assessment must be informed by the relevant context. In particular, employees were aware the site was under video surveillance. The entrances were under regular video surveillance for security purposes, and the gas pumps were in an open area of the site (under periodic video surveillance). In neither location would employees have a reasonable expectation of privacy and, in particular, a reasonable expectation of being free from video surveillance.

173 The inquiry into available alternatives is also one that is informed by the particular context. In other words, the fact that the Employer already had a video surveillance system which covered both locations - and which was known to employees -is a relevant consideration. As well, under arbitral jurisprudence, an employer is not required to exhaust available alternatives without regard to their reasonableness: see e.g. X v. Y, para.42. That is also the case under PIPEDA, as the statutory requirement is, itself, a test of reasonableness.

[Emphasis added.]

In my view, Arbitrator Taylor’s express consideration of whether the expectation of privacy was reasonable within the specific circumstances is analytically helpful. I also agree with Arbitrator Taylor’s observation that “an employer is not required to exhaust available alternatives without regard to their reasonableness”.

60I note the Employer relies upon Arbitrator Taylor’s statements at paras. 175-177 for the proposition that “security and employee misconduct are not necessarily watertight compartments”. In my view, what is of more significance is Arbitrator Taylor’s reasoning in making that observation. His observation was based on specific circumstances before him. Given, among other things, the employer’s use of cameras for security purposes, Arbitrator Taylor concluded that the employee could not have had a reasonable expectation of privacy with respect to the misconduct in which he engaged. Arbitrator Taylor stated:

175 I begin with the March 25 video, in which the Grievor's truck was "followed" by camera after it was observed entering the site with garbage bags in the back. This instance illustrates that security and employee misconduct are not necessarily watertight compartments. The entrances to the site are routinely monitored for security purposes. That is how the Grievor's truck was initially noticed. In addition, the Employer's security requirements include monitoring what is brought onto the site. The Grievor, driving onto a secure dock facility under 24-hour video surveillance with garbage bags in the back of his pickup truck, could not possibly have a reasonable expectation of privacy in doing so.

176 Indeed, the Grievor had already been spoken to more than once by the Employer about violating company policy by bringing garbage onto the dock. The notion that the Employer might be monitoring this activity could hardly be unexpected. The Union, in argument, endeavors to use to its advantage the fact that the Grievor had already been spoken to about this activity, arguing other alternatives to video surveillance were available, such as disciplining the Grievor or revoking his dock parking privilege. I accept Mr. Scott's explanation for taking a more discretionary, less extreme approach.

177 I conclude the March 25 video meets the arbitral and PIPEDA tests and is admissible.

[Emphasis added.]

In other words, the reason security and employee misconduct are not watertight compartments is because an employee who is aware that he or she is subject to surveillance for security reasons cannot reasonably expect that misconduct discovered in the course of that surveillance will be ignored.

61The Employer relies upon Canadian National Railway v. Teamsters Canada Rail Conference, 2010 CarswellNat 6025 (M. Picher). In this award, Arbitrator Picher cited para. 171 of the decision of Arbitrator Taylor in Fraser Surrey Docks and stated:

6. In the Arbitrator's view the facts reviewed above fall well within the principle enunciated by Arbitrator Taylor. The incidental observation of an unsafe practice is not inadmissible at arbitration merely because it was observed on a video screen which was in fact being used for another purpose. While the argument made by the Union would be compelling if it could be established that the trainmaster's sole purpose in observing the location of the grievor's work was to evaluate him for the purposes of possible discipline, that is clearly not what transpired in fact.

[Emphasis added.]

I agree with these comments. It does not follow that incidental observation of misconduct on a video being used for another purpose is always admissible. Rather, in my view, the admissibility of such evidence must be determined on a balancing of interests having regard to the circumstances of each case.

Summary and Conclusions as to Legal Context

62I would summarize my conclusions as to the legal context as follows.

63Individuals have three distinct privacy interests: personal privacy, territorial privacy and informational privacy (Jones v. Tsige). Personal privacy is “the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal”. Territorial privacy protects “the home and other spaces where the individual enjoys a reasonable expectation of privacy”. Informational privacy is the right to determine “when, how and to what extent” information about one’s self is communicated to others. While the privacy interests are analytically distinct, they may overlap in any given situation.

64Surveillance engages an individual’s territorial privacy interests. While the information obtained from that surveillance may also engage an individual’s informational privacy interests, that issue was not argued before me and, other than my brief comments above, I do not address it. Issues related to personal privacy are also not before me and again, other than my brief comments above, I do not address them.

65The first issue is that of arbitral jurisdiction to review the Employer’s decision to use surveillance cameras and the standard to be applied in conducting that review. The installation and use of surveillance equipment is tantamount to introducing a workplace rule, as employees who refuse to work on the basis that they are under surveillance may be subject to discipline (Lenworth Metal). The rule must, therefore, be reasonable in order not to run afoul of the just cause provision of the collective agreement. Further, the management rights clause of the collective agreement before me provides that management may make “reasonable rules”. Put differently, the management rights clause qualifies the Employer’s right to make rules with a reasonableness requirement (Lenworth Metal). Accordingly, the Employer’s installation and use of the surveillance cameras at its correctional facilities is subject to arbitral review on a standard of reasonableness. To be clear, I do not decide whether or not there are other sources of arbitral jurisdiction (including that which might arise from any employment related statute), nor do I decide the standard of review which would apply to any other source of arbitral jurisdiction.

66The second issue is the analytical framework to be applied in conducting the review of the Employer’s installation and use of the surveillance cameras at its correctional facilities. For reasons stated above, I reject the approach of separate tests for covert and overt surveillance. Rather, in my view the difference between covert and overt surveillance may be captured in a single test which gives more express consideration to the nature of employees’ privacy interests and the greater impact of covert surveillance on those interests.

67An individual’s privacy interests continue to exist within the employment relationship. Privacy interests, however, are a matter of reasonable expectations. Within an employment context, an individual’s privacy interests are balanced against and may be outweighed by the employer’s legitimate interests.

68Each of being under the gaze of surveillance cameras, being monitored through those surveillance cameras and the use of information arising from the surveillance cameras engages privacy interests. A separate balancing exercise may be warranted in relation to each in a given case. Both monitoring through watching live video feed and monitoring through review of recorded video engage privacy interests. Incidental viewing of an individual through live or recorded video feed does not constitute monitoring that individual.

69Factors to be considered in assessing an employer’s interests include:

1. the specific nature of the interest, including whether it engages legitimate business interests of the employer;

2. whether surveillance is done in good faith in furtherance of that interest; and

3. whether intrusion upon privacy is reasonably necessary to meet that interest.

70With respect to the nature of the employer’s interest, some interests have been given greater weight by arbitrators than others. Without in any way meaning to be exhaustive, investigation or prevention of culpable misconduct and safety and security have typically been assigned high weight; management and monitoring of performance have typically been assigned low weight.

71To ask whether the intrusion upon privacy is “necessary”, means that it must be more than merely helpful. To ask whether it is “reasonably” necessary includes consideration of the specific means used and the factors which went into the employer’s choice of those means and may also include consideration of the availability of less intrusive means. I align myself with those arbitrators who reject requirements that the employer have considered or tried all other less intrusive means first (e.g. Kelleher in Unisource; Taylor in Fraser Surrey Docks). Such requirements are inconsistent with the balancing exercise. They would mean, for example, that an employer would always be precluded from relying upon the results of surveillance if it failed to prove that there were no less intrusive means, even if the employer had a compelling reason for engaging in the surveillance, the employee had little reasonable expectation of privacy in the circumstances and the intrusion upon the employee’s privacy was minimal.

72An employee has a direct interest in the fact that they are subject to surveillance. Arbitral case law recognizes, if not always expressly, an expectation on the part of employees that they will not be subject to: covert surveillance (Kadant); continuous overt surveillance within production areas of the workplace (Thibodeau-Finch Express as cited in St. Mary’s Hospital); surveillance while in areas dedicated to personal as opposed to work related functions such as lunchrooms (Cascade) or washrooms within the workplace or their own private residence. This list is not intended to be exhaustive.

73Only expectations of privacy which are objectively reasonable in the circumstances are protected (Fraser Surrey Docks). In general, if an individual is aware they are, or may be, subject to surveillance, the reasonable expectation of privacy is lower. By contrast, if an individual has no reason to believe they are or will be subject to surveillance, the reasonable expectation of privacy is higher. The reasonableness of an individual’s belief requires consideration of the circumstances. Employees in a workplace with overt surveillance know they are subject to that surveillance. (The propriety of the employer engaging in that surveillance is a separate issue.). Employees, however, are not generally aware of covert surveillance. Further, it is reasonable for employees to expect that they will not be subject to surveillance in private spaces such as lunchrooms, washrooms or their own homes.

74The balancing exercise requires consideration of the factors relevant to both the employer’s interests and the employees’ interests. The employer must demonstrate that the interests it seeks to advance through surveillance are proportionate to the intrusion upon employee privacy interests which would result. The balancing exercise is, by its nature, specific: a particular employer interest is balanced against the employee privacy interest. Surveillance or uses of information arising from that surveillance which is justifiable for one purpose is not thereby justifiable for all purposes. Having said that, the fact employees know surveillance is taking place for one purpose is a factor to be considered in assessing the reasonableness of an employee’s expectation of privacy in relation to the use of information incidentally obtained as a result of that surveillance for another purpose.

75It follows that there is a distinction between the purposes which make surveillance permissible and the uses to which the information obtained may be put. Surveillance for a particular purpose contemplates use of the information obtained for that purpose. It does not, however, necessarily preclude the incidental use of that information for other purposes.

76Since compliance with the just cause provision is at issue, the onus of proof lies upon the Employer. Having said that, in the same way that an employer is entitled to require a union to first prove that the employer took disciplinary action against an employee before the employer must establish it had just cause for that discipline, so too may an employer require a union to first prove that employees’ privacy interests were engaged by surveillance before the employer is required to prove the reasonableness of that surveillance.

77Where, on a balancing of interests, an employee’s reasonable privacy interests prevail, an arbitrator may grant an appropriate remedy including:

(i) directions as to the placement, orientation or field of view of surveillance cameras;

(ii) orders with respect to the retention and use of information obtained as a result of surveillance; or

(iii) exclusion of otherwise relevant evidence from arbitration proceedings.

Interpretation of Appendix COR10

78Against this legal context, I turn to the proper interpretation of Appendix COR10.

79The Union notes that Appendix COR10, to which the parties agreed on January 24, 2013, was a revision of Appendix COR11, which was a Letter of Understanding dated March 12, 2009. Appendix COR11 read:

March 12, 2009

Surveillance in Correctional Institutions

Letter of Understanding

The parties agree that the Employer shall notify the Union of any increases in use of surveillance equipment. In instances where the Employer is relying upon any type of electronic audio or video recordings for discipline or investigative purposes, the Employer shall notify the Union prior to holding a meeting with the employee for the purpose of investigation, that the Employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will provide a copy of such recording to the Union, as soon as reasonably practical, upon request.

Any disputes regarding surveillance in a Correctional Institution shall be referred to MERC for discussion and resolution.

80For ease of reference, I set out Appendix COR10 again. In doing so, I italicize the principle differences between Appendix COR10 and Appendix COR11:

Revised: January 24, 2013

Letter of Understanding

Surveillance in Correctional Workplaces

The parties agree to the following regarding use of surveillance and electronic equipment in the workplaces:

Purpose

The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry. Information obtained may be used for protection against criminal acts such as theft, depredation and damage to property.

Advisement

The Employer shall notify the Union of any increases in use of surveillance equipment. In instances that the Employer is relying upon any type of electronic audio or video recordings for discipline or investigative purposes, the Employer shall notify the Union prior to holding a meeting with the employee for the purpose of investigation, that the Employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will provide a copy of such recording to the Union, as soon as reasonably practical, upon request.

The use of electronic monitoring/surveillance equipment is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance.

Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution.

81The Union notes that Appendix COR11 essentially provided that the Union would be given notice of certain things and production of certain things. The Union argues that by replacing Appendix COR11 with Appendix COR10, the parties were agreeing to an expanded scope of rights. The Union notes that while Appendix COR11 was headed “Surveillance in Correctional Institutions”, Appendix COR10 is headed “Surveillance in Correctional Workplaces”. The Union argues that this “sets the tone” for further changes in the text of Appendix COR10.

82In addition to the notice and production requirements which had been contained in Appendix COR11, the Union argues that Appendix COR10 fetters the Employer’s use of surveillance equipment in several ways. First, the Purpose Clause identifies the specific purpose of the equipment: “for safety and security of staff, inmates and property”. In order to achieve that purpose, Appendix COR10 then fetters the Employer’s rights with respect to the information it obtains to use “for protection against criminal acts such as theft, depredation and damage to property.” The Union does not object to this use of information by the Employer and indeed the Union’s view is that information obtained from surveillance should be used for that purpose. The second last paragraph of Appendix COR10, which the Union described in its opening as being added “just for clarity”, further restricts the Employer’s use of surveillance equipment. It provides in part that surveillance equipment is not to be used as a replacement for three things: supervision of members, the employees of the workplace; as a method of managing OR supervising the employees of the workplace; as a “means” to evaluate employee performance. “Means”, in law, refers to any course of action. The Union asserts the Employer’s use of surveillance equipment, or information obtained, has breached these restrictions, as illustrated by the specific reference cases it has advanced.

83The Employer’s response is that while Appendix COR10 identifies purposes for surveillance equipment, it does not say that surveillance equipment is to be used only for those purposes. Nor does it say that information obtained can only be used “for protection against criminal acts such as theft, depredation and damage to property”. Those are only examples of the uses to which information obtained may be used. The Employer is not required to turn a blind eye to other misconduct, and indeed is required to act if it is discovered. With respect to supervising or managing employees, Appendix COR10 only provides that surveillance equipment is not to be used as a “replacement” for supervising or managing employees. The Employer argues that means surveillance cannot be used “instead of” supervising or managing. The Employer argues that surveillance is not being used instead of supervision of management, but rather to “supplement” it. Surveillance is simply “one of the tools in the tool box” which the Employer uses for that purpose. The restriction on use of surveillance as a means of evaluating employee performance relates to “performance writ large”. It does not preclude “spot checks”. In this respect, the Employer notes, at least with respect to the reference cases, that no employee was subject to discipline as a result of any such spot checks. The Employer asserts the reference cases advanced by the Union do not constitute breaches of Appendix COR10 or any other provision of the collective agreement.

84In reply, the Union argues that there is no need for Appendix COR10 to state the “only” purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry, because Appendix COR10 states that is “the” purpose. With respect to the uses of surveillance, the Union argues that interpreting the prohibition on the use of surveillance as a “replacement” for supervising and managing employees as permitting the Employer to use surveillance as a “supplement” would render the restriction meaningless as the Employer could always say that it was simply “supplementing” its supervision and managerial functions. The Union rejects the proposition that the restriction on the use of surveillance “as a means to evaluate employee performance” applies only to “performance writ large”. There is no such limitation of the restriction in Appendix COR10.

85In my view, interpretation of Appendix COR10 must begin by recognizing the distinction discussed above in my review of the legal context between the purpose which permits surveillance to be undertaken and the information obtained as a result of that surveillance. Surveillance for a particular purpose contemplates use of the information obtained for that purpose. It does not, however, necessarily preclude the incidental use of that information for other purposes.

86Appendix COR10 expressly states the purpose for which surveillance may be used:

The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry.

87I reject the Employer’s argument that this statement does not constitute an agreement limiting the use of surveillance to that purpose for two reasons.

88First, the Employer has the right to engage in surveillance for safety and security of staff, inmates and property at its correctional facilities without the agreement of the Union. It is clear from the cases that employers in general may engage in surveillance for the purpose of legitimate safety and security concerns (see e.g. St. Mary’s Hospital). Further, the right of this Employer to engage in surveillance of its correctional facilities for safety and security reasons has been specifically and expressly recognized in the case law (see R. v. March), if it is not in fact obliged to do so by legislation (I was not directed to any applicable legislation). This is part of the context within which I must interpret the parties’ agreement to include the sentence stating the purpose of surveillance.

89Second, as argued by the Union, the sentence used by the parties refers to “the” purpose for which surveillance may be undertaken. There is no need to indicate that is the “only” purpose for which surveillance may be undertaken in order to restrict surveillance to that purpose, as argued by the Employer. English has two articles: “the” and “a/an”. “The” is definite and is used to refer to specific or particular nouns. “A/An” is indefinite and is used to modify non-specific or non-particular nouns. The parties have agreed that surveillance may be undertaken for the specific purpose described. They did not, in some manner, qualify that agreement to permit it to be undertaken for other purposes.

90I turn now to the uses to which the information obtained from the surveillance may be put by the Employer as described by Appendix COR10. The parties have expressly agreed in the paragraph referencing the purpose of surveillance that:

Information obtained may be used for protection against criminal acts such as theft, depredation and damage to property.

They have also expressly agreed later in Appendix COR10 that:

The use of electronic monitoring/surveillance equipment is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance.

In the next several paragraphs, I shall refer to these statements with respect to use as the first statement and the second statement respectively.

91The Union argues the first statement serves to fetter the Employer’s use of information obtained from surveillance to only “protection against criminal acts such as theft, depredation and damage to property”. I disagree for two reasons.

92First, that interpretation would render the second statement unnecessary: it is not necessary to state that surveillance “is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance” if the information obtained from surveillance may only only be used for “protection against criminal acts such as theft, depredation and damage to property”.

93Second, the first statement is permissive. It does not say the stated uses are “the” uses for which the information obtained may be used, nor does it say that the stated uses are the “only” uses for which the information obtained may be used. It simply says the information “may” be used for the stated uses.

94In my view, therefore, provided the surveillance was conducted for the purpose of “the safety and security of staff, inmates and property of the respective ministry”, the first statement does not preclude the Employer from making use of information obtained for other incidental purposes. The ability of the Employer to do so is subject to the restrictions to which the parties have expressly agreed, set out in the second statement. It is also otherwise subject to a balancing of interests, as discussed further below.

95What then is the scope of the restrictions imposed by the second statement? That statement has two parts, separated by a semi-colon. The first part states surveillance is “not to be used as a replacement for supervising or managing”. The second part states surveillance is “not to be used … as a means to evaluate employee performance”.

96The second part is restrictive. It prohibits the use of surveillance as “a means” to evaluate performance. This precludes the use of information obtained from surveillance for that purpose, full stop. The first part, by contrast, is more permissive. It only prohibits the use of surveillance as a “replacement” for supervising or managing.

97A particular challenge in a correctional setting is that employee conduct which might, in another setting, be seen as simply a matter of managing, supervising or evaluating employee performance, may also relate to the safety and security of the institution. Thus, for example, the use of a personal cellphone at work may affect productivity in many workplaces, including corrections. That is a performance issue. In a correctional workplace, however, use of a cellphone in a secure area may also pose safety and security issues for a number of reasons, including that the employee may be distracted from his or her duties while using the cellphone and that the cellphone, if misplaced or stolen, could become a highly desirable piece of contraband among inmates. For this reason, the Ministry of Solicitor General’s Institutional Services Policy and Procedures Manual (“ISPPM”) provides in part:

To ensure the security of the correctional institutions and the safety of all persons, Correctional Services prohibits the use of personal electronic devices within the secure areas of correctional institutions.

(The ISPPM goes on to outline exceptions to this general prohibition. Those exceptions are not relevant for present purposes.)

98The issue before me, however, is not whether the Employer may, for example, prohibit the use of cellphones within the secure areas of a correctional institution. The issue before me is the impact of Appendix COR10 on the Employer’s ability to use surveillance to enforce that prohibition. In addressing that issue, the first and second statements in Appendix COR10 with respect to use of information obtained from surveillance must be considered within the context of the purpose of surveillance specified by Appendix COR10. Thus, for example, surveillance of employees for the use of cellphones may have a dual purpose: the safety and security of the institution and monitoring the performance of work by the employees. The question will be what is the predominant purpose of the surveillance. If the predominant purpose was safety and security, then the surveillance may be permitted by Appendix COR10 and the information obtained used for monitoring performance, subject to the restrictions in Appendix COR10. If the predominant purpose was monitoring of performance, then the surveillance is precluded by Appendix COR10.

99In understanding where the line is drawn between the two, some guidance is provided by the first statement in Appendix COR10 as to use of information obtained from surveillance, which I note forms part of the paragraph under the heading “Purpose”. For ease of reference I set it out again:

Information obtained may be used for protection against criminal acts such as theft, depredation and damage to property.

So, for example, if the Employer had reasonable grounds to believe that a CO was using his or her cellphone within a secure area to engage in a criminal act “such as theft, depredation and damage to property”, the predominant purpose of surveillance of that CO for the use of a cellphone during the performance of duties in that secure area might be considered to be “the safety and security of staff, inmates and property” of the institution. On the other hand, if the Employer simply was seeking to determine if any CO was using his or her cellphone in a secure area, then the predominant purpose might be considered to be the monitoring of performance. I hasten to add that these examples, stripped as they are of all other facts, are meant to be illustrative only. The actual determination in a particular case would require consideration of all relevant facts.

100Finally, apart from the restrictions to which the parties have expressly agreed in the second statement of Appendix COR10, the Employer’s use of information obtained incidental to surveillance conducted for the purpose of “the safety and security of staff, inmates and property of the respective ministry” is subject to the balancing of interests test. As noted above, this balancing exercise is fact specific.

101Having said that, a common fact for employees in the correctional workplaces to which Appendix COR10 applies is that they are aware that surveillance is taking place for the purpose of safety and security. Further, employees in a correctional workplace know, or ought to know, that the surveillance feed or recordings are subject to review for certain purposes, including investigating certain incidents of assault and live security episodes. This weighs heavily in the assessment of the objective reasonableness of employees’ expectations of privacy in the reference cases before me.

102I turn now to the reference cases.

The Reference Cases

103I agree with the Employer that the reference cases can be usefully discussed in three groups (or, as the Employer would have it, “buckets”).

CSOI Investigations Into Incidents Resulting in Discipline Unrelated to Incident

104The first group are reference cases involving discipline imposed as a result of information discovered in the course of investigations conducted by the Correctional Services Oversight & Investigations unit (“CSOI”) of the Employer. That information was included in the report prepared by CSOI with respect to the results of its investigation. CSOI Investigations fall into two categories, Level 1 and Level 2, with Level 1 applying to more serious incidents. All of the reference cases provided in this group arose from Level 1 investigations.

105In the case of CO Shohannah Smith, a page was sent to COs on duty at the Ottawa-Carleton Detention Centre (“OCDC”) at approximately 1:00 AM on June 27, 2020, indicating that an inmate was in distress. CO Smith was on duty at the time and responded to the page. She was one of several COs who applied compression to the inmate, but unfortunately these efforts proved unsuccessful and the inmate died at approximately 1:30 AM. An investigation by “management”¹ surrounding the circumstances of the inmate’s death was conducted. During the course of the investigation, video surveillance tapes were reviewed. That review revealed CO Smith was on her personal cellphone at the time the initial page for assistance was received. CO Smith was directed by the Employer to write an occurrence report in relation to her use of her cellphone. She ultimately received a verbal warning in relation to her use of her cellphone. CO Smith’s uncontested evidence was that when she received the page, she immediately put her cellphone away and that her use of her cellphone was unrelated to the death of the inmate.

106In the case of CO Delanie Linton, the “nature of investigation” as stated in the CSOI report was to “investigate the circumstances leading up to and including the assault on” an inmate at Toronto South Detention Centre (“TSDC”) on May 2, 2019. CO Linton was not on duty at the time of the assault. Video footage for 24 hours prior to the actual assault was reviewed by CSOI in the course of the investigation. It appeared to show CO Linton using her cellphone and utilizing a computer to watch a movie, both of which were recorded in the CSOI report provided to TSDC. TSDC issued a notice of allegation meeting to CO Linton with respect to her use of a personal electronic device in a secure area of the institution without authorization. (The allegation meeting took place just before CO Linton completed her declaration and the discipline, if any, issued as a result was not before me.). CO Linton’s uncontested evidence was that her use of her cellphone was unrelated to the assault on the inmate.

107The last set of reference cases in this group all arose from a CSOI investigation of an incident involving the death of an inmate at an institution I shall refer to as “Y”. The "nature of the investigation” as stated in the CSOI report was to “investigate the circumstances surrounding the sudden death” of the inmate. In the course of the investigation, CSOI obtained and reviewed surveillance video for the two days prior to the death of the inmate. In the CSOI Report, the investigator noted (among other things) that the surveillance video appeared to show one or more COs: using a personal cellphone in a secure area of the institution; failing to stop an inmate from exercising with “repurposed” clothing and failing to confiscate that clothing as contraband; and failing to conduct security patrols of inmate occupied areas at least twice per hour over a period spanning just over an hour. With respect to the last two of these (inmate exercising with repurposed clothing and failure to conduct security patrols at least twice per hour), the CSOI Report also indicated the CSOI investigator reviewed the logs to see if the inmate activity or missed rounds were recorded or reported. The CSOI Report indicated that they were not. In cross-examination, the CSOI investigator agreed that his Report was “based on review of actions, performance, behaviour of staff in the performance of their duties”.

108There are some commonalities in the facts of reference cases provided by the Union in this group. There was a serious incident at a correctional institution, involving assault or death of an inmate in custody. CSOI was called in to investigate the circumstances surrounding the incident. There is no dispute as to the propriety of CSOI doing so. As part of the investigation, a CSOI investigator reviewed recorded surveillance video for the time period leading up to the incident. In the course of that review, the CSOI investigator observed apparent misconduct on the part of a CO. The misconduct was unrelated to the incident which gave rise to the investigation in the first place. CSOI identified and described the apparent misconduct in the report prepared in relation to the investigation. A copy of the report is given to the institution. An allegation meeting was held by the management of the institution with the CO in question during which the CO was asked to provide any explanation. Subsequently, the CO was disciplined by the institution in relation to that misconduct (although in the case of CO Linton, there was, for the reasons stated, no evidence of whether or not discipline was imposed). The Union alleges that this discipline is improper as the evidence relied upon was obtained in a manner which contravenes Appendix COR10.

109The uncontested evidence of Inspector Rainford was that CSOI reviews surveillance video for the period prior to an incident involving injury or death of an inmate to ascertain the demeanours and politics on the “range” and also the inmate and staff behaviour which led up to the incident. In my view, this falls within the permitted purpose of surveillance: “the safety and security of staff, inmates and property of the respective ministry.” I note the Union did not argue the contrary. Further in my view, the review of surveillance video is reasonably necessary in order to accomplish this purpose. The surveillance video constitutes an important historical record of the demeanour and politics on the range and of the inmate and staff behaviour which led up to the incident which cannot otherwise be replicated.

110The Union argues that the time period chosen by CSOI, 24 - 48 hours, is arbitrary, casts an overly broad net and is akin to conducting surveillance “just to see what shows up”, rather than being incident driven.

111I am not persuaded by this argument. Inspector Rainford’s evidence was that CSOI would typically request video for the 24 hour period prior to the incident, and depending on the evidence uncovered during the investigation might request surveillance video from an earlier time period. The typical period initially requested, 24 hours, appears well suited to the reason for which the video is being reviewed: to ascertain the demeanours and politics on the “range” and also the inmate and staff behaviour which led up to the incident. In the absence of any evidence to the contrary, I infer that is the reason that period is typically initially selected. The fact that the 24 hour period may be extended if evidence warrants it also militates against a conclusion of arbitrary behaviour on the part of CSOI.

112The Union notes that in cross-examination, Inspector Rainford stated that typically the institutions provide CSOI with the initial video without being asked, as part of the investigation package sent by the institution to CSOI. The Union argues that it is therefore the “employer” which typically decides how widely to “cast the net”. This, the Union argues, amounts to “random” surveillance or monitoring, which is impermissible.

113I am not persuaded by this argument. Both the institution and the CSOI are part of the Employer. The review of the surveillance video is not being done for a random purpose. It is being reviewed by the Employer to ascertain the causes of an assault on an inmate or death while in custody. The Union, in effect, suggests selection by an institution, as opposed to CSOI, of the video to be reviewed gives rise to an inference of bad faith. While the arm’s length relationship of CSOI from the institution may support an inference of good faith when the video is selected by CSOI, it does not follow that the opposite is true. The period of video which CSOI typically requests appears to be well established. An initial selection of video corresponding to that period by an institution without being asked is not unusual. In the absence of any evidence to suggest that the video was selected by a particular institution for an improper purpose, I am not prepared to infer that it was.

114The Union argues none of the misconduct in the reference cases above raises issues of safety or security. In any event, none of it constitutes criminal conduct. Further, the Union notes the alleged misconduct was completely unrelated to the purpose of the investigation and that, in the case of CO Linton, she was not even at work at the time of the incident giving rise to the CSOI investigation. Thus the use of the video as evidence to support discipline of a CO falls outside the scope of the purpose of surveillance videos described in Appendix COR10 or at least the uses of information obtained permitted by Appendix COR10. Therefore, it is impermissible.

115I am not persuaded by this argument. The misconduct in question was discovered incidental to a review of the surveillance video, which was conducted in good faith for the purpose permitted by Appendix COR10 and was reasonably necessary in order to accomplish that purpose. For the reasons stated above, provided the surveillance or the review of the video of the surveillance meets those criteria, or the information was discovered incidental to such surveillance or review, I reject the proposition that Appendix COR10 only permits the Employer to discipline for misconduct discovered as a result of surveillance which amounts to “criminal acts such as theft, depredation and damage to property”.

116The Union argues that in each of these cases, the surveillance cameras were used to observe the performance of duties by COs, that is to say as a tool to manage them. Indeed, the CSOI investigator agreed that his Report was “based on review of actions, performance, behaviour of staff in the performance of their duties”. In this respect, the Union argues there is no difference between watching the live feed from the surveillance cameras or watching the recorded video, which the Union analogizes to “on demand” television. To hold otherwise would be to permit the Employer to do indirectly (watching recorded video) that which it cannot do directly by watching the live feed of the surveillance cameras. Further, the Union argues that in each case the Employer had alternative ways of observing the performance of duties by COs without use of surveillance video: a managerial employee could have observed it by walking the floors of the institution. Thus, it argues, the Employer has not proven that use of surveillance was uniquely necessary.

117I would make a distinction between the fact of surveillance, which may be objectionable itself, and the use of information obtained from surveillance. The former does not need to be addressed further at this point. I agree with the Union that at least on these facts there is no distinction between the information obtained from watching the live feed of surveillance cameras and watching the recorded video. I place little significance on the fact the CSOI investigator agreed that his Report was based on a review of the performance by staff of their duties. Surveillance for the permitted purpose of safety and security will inevitably observe or record staff in the performance of their duties. The purpose of the review of the information captured by the surveillance was not to manage or supervise staff nor was it to act as a means to evaluate the performance by staff of their duties. It was to investigate an incident involving serious injury or death of an inmate in order to secure the safety and security of the staff, inmates and property at the institution. The discovery of the misconduct by staff was incidental to that review. The review, therefore, cannot be said to have been a replacement for management or supervision. The fact that the Employer might have discovered the misconduct by having a managerial employee walk the floor of the institution is irrelevant as that was not the purpose for which the review was undertaken. Nor was the information obtained with respect to the performance by staff of their duties used “as a means to evaluate employee performance”; rather it was used as evidence of culpable misconduct. Thus, the specific prohibition in Appendix COR10 against the use of surveillance as “a means” to evaluate performance is not engaged.

118In the result, I find that the information of misconduct relied upon by the Employer was obtained incidentally to review of surveillance information for the purpose permitted by Appendix COR10, which review was reasonably necessary and conducted in good faith for that purpose, and that the use of that information by the Employer is not precluded by Appendix COR10.

119As the parties did not directly address the balancing exercise in their arguments with respect to this group of cases, I will be brief on this issue. For the reasons stated, the Employer has established that its intrusion upon employees’ privacy interests was incidental to a review of surveillance video which was done in good faith, for the permitted purpose and was reasonably necessary. In terms of the employees’ privacy interests, the fact that widespread surveillance is known to take place within correctional institutions and that the resulting videos are known to be reviewed when there are serious incidents involving death or injury to an inmate weighs against any reasonable expectation of privacy when the videos are reviewed. Further, employees know or ought to know that they may be disciplined in relation to misconduct during the performance of their duties which becomes known to the Employer. This further reduces the reasonableness of any expectation of privacy in relation to such misconduct. Finally, there are no countervailing facts such as, for example, the activity having taken place in a space, such as a staff washroom, where there would be heightened reasonable expectation of privacy.

120For all of the foregoing reasons, I find no breach of the collective agreement with respect to the first group of reference cases.

Live Monitoring of Surveillance Video

121The Union presented two reference cases which may be grouped into this category. Having said that, in my view they present different issues.

The Code Blue Incident

122The first case arises from the South West Detention Centre (“SWDC”). The Union filed a declaration from CO Jason Stroud. At all relevant times, CO Stroud was the President of the Local representing members of the Union at SWDC. Among other things, CO Stroud stated that on February 14, 2020, at approximately 8:00 AM a “Code Blue” was called for all staff to report to a unit for assistance. Shortly thereafter the Code Blue was cancelled. At approximately 8:10 AM, CO Stroud and CO S. Newman were questioned by their Block Sergeant as to why they did not unlock their unit immediately following the stand down announcement. CO Stroud stated that he believes the only way in which the Block Sergeant could have been aware of this would have been if they had been monitoring the performance of duties by himself and Mr. Newman through the surveillance equipment. In cross-examination, CO Stroud testified that the questioning by the Block Sergeant took the form of a phone call. He stated that neither he nor CO Newman were disciplined as a result. He was not cross-examined as to his belief that the only way the Block Sergeant could have been aware that he and CO Newman did not unlock their unit immediately following the stand down announcement would have been if the Block Sergeant had been monitoring their performance of duties through the surveillance equipment. In re-examination he stated that he was unaware of any other way in which the Block Sergeant could have been aware.

123The Employer filed a declaration from Brian Janisse, the A/Deputy Superintendent of Male Operations at SWDC (whose home position is Deputy Superintendent of Services at SWDC). Dep. Supt. Janisse stated that SWDC contains 16 living units with a capacity of 315 offenders. While Dep. Supt. Janisse was more specific², it suffices for this part of the decision to note that there are hundreds of cameras at SWDC with monitors capable of showing a live view in a number of offices, including the Block Sergeants’ offices. Dep. Supt. Janisse stated that: “Normally the monitors are set up to display four views for four units (16 total).” Dep. Supt. Janisse continued:

Given the number of cameras within SWDC, it is not possible for the Sergeants or senior administration to live monitor each of the cameras. Instead, the monitors are available in the event that management needs to pull up a live view or an archived view from a particular feed. The monitors are an extra layer of security for the staff. For instance, if there is an emergency situation, the monitors allow management to see the situation and to provide direction and support. In our sub-controls, the officers see the same cameras and refer to them when opening and closing doors. They are also able to alert floor Officers to emerging situations in areas where they are not able to directly observe at all times.

In relation specifically to the February 14, 2020 Code Blue Incident, Dep. Supt. Janisse’s declaration contained only the following statement:

For the incident on February 14, 2022 at approximately 8:00 am, a Code Blue was called for all staff to report to a unit for assistance. In this situation, the Sergeant noticed that the unit was not unlocked even after the incident was completed. The Sergeant proceeded to make a phone call to get the Unit unlocked. No one was disciplined as a result.

This does not constitute direct evidence as to how CO Stroud’s Block Sergeant became aware the unit was not immediately unlocked on the day in question. Nor does the Employer assert that there was such evidence.

124Rather, in final argument, the Employer relied upon the declaration of Annetta Golder. As of February 16, 2021 (the date of her declaration) Ms. Golder was the Acting Deputy Regional Director, Compliance for the Northern Region of the Ministry’s Institutional Services. I note that SWDC does not fall within the Northern Region. Ms. Golder’s home position was Superintendent of the Algoma Treatment and Remand Centre (“ATRC”). She testified that to her knowledge the Security Sergeant at ATRC does not use the security cameras to “live monitor staff for compliance issues”. She also stated that “as a practice” she did not perform live monitoring of staff through the security cameras at ATRC. She stated that “in the past, I have gone into the control module [in which monitors are located] during a Code to see if there is anything to be aware of”. She also described a specific incident. She stated that she could tell from radio communications the incident was “more significant”. On that occasion she “entered the control to enquire on the nature of the incident. It was for the purpose of determin[ing] the nature of the crisis, where assistance may be required.”

125A/Dep. Reg. Dir. Golder’s evidence does not constitute direct evidence of the reason CO Stroud’s Block Sergeant viewed the surveillance feed at the time in question. Further, her evidence of one instance, during which she viewed the monitors during an incident at ATRC does not establish a practice of doing so at ATRC let alone at SWDC.

126The evidence establishes that a Block Sergeant at SWDC has access to the live feed from the surveillance cameras. In my view, CO Stroud’s evidence is capable of supporting the inference that the way the Block Sergeant became aware of his failure to unlock his unit immediately following the stand down announcement on February 14, 2020 was through that live feed. I rely not on CO Stroud’s belief, but on the fact that the Block Sergeant had the means to do so, called within minutes of the failure to unlock the unit and there is no other apparent way in which the Block Sergeant would be aware of that failure other than through the surveillance equipment.

127This inference was not rebutted by the Employer. Indeed, the Employer did not assert in final argument that the Block Sergeant did not become aware through the surveillance equipment. Rather, the Employer argues that it would have been completely fine for the Block Sergeant to have checked the monitors during the Code Blue incident at SWDC in order to determine if he could render assistance. Whatever the merits of this argument, there is no evidence that is why the Block Sergeant was watching the monitors on this occasion. The evidence of A/Dep. Reg. Dir. Golder as to why she checked the monitors on one occasion at an entirely different institution does not constitute evidence as to why the Block Sergeant was looking at the monitors at SWDC during the Code Blue incident.

128Nor does the evidence of Dep. Supt. Janisse that “it is not possible for the Sergeants or senior administration to live monitor each of the cameras” because of workload constitute evidence that the Block Sergeant at SWDC was not doing live monitoring of the specific camera during the time of the Code Blue incident. Further, the unexplained failure to call the Block Sergeant permits the inference that his evidence would not have assisted the Employer on this point.

129I conclude, therefore, that the Block Sergeant was subjecting CO Stroud to surveillance by monitoring the surveillance feed on February 14, 2020 at approximately 8:00 AM. Further, I conclude that the Employer has not demonstrated that the Block Sergeant was engaged in that surveillance for the permitted purpose of safety and security or incidentally to surveillance for that purpose. Accordingly, I find the Employer breached the collective agreement when the Block Sergeant engaged in surveillance of CO Stroud on February 14, 2020.

The Christmas Tree Incident

130The second reference case raising the issue of live monitoring relates to what Employer counsel referred to as the “Christmas Tree incident”. The Union filed a declaration from CO Stewart Barber of Maplehurst Correctional Complex (“Maplehurst” or “MHCC”). In response, the Employer filed a declaration from Earl Essery, a Sergeant who is one of the security managers at Maplehurst.

131On December 28, 2018, CO Barber was assigned to work the central control module. Up until 2016, the central control module was CO Barber’s regular post and had been for at least ten years. Subsequent to that time it was a post to which he was assigned at least once per week. In his declaration, CO Barber stated that in the past when he entered the security office, he had observed the central control module was being observed on the monitors displaying the security camera live feeds. He also stated that colleagues had advised him that they too had entered the security office and observed that the central control module was being observed. CO Barber stated:

On December 28, 2018, after working the control module for a short period of time I felt stressed at the thought of someone constantly watching and judging me. To relieve this stress I covered the camera.

Shortly after he covered the camera, he heard Sgt Essery, Security Manager, radio Staff Sgt Dearing to contact him. Sgt Dearing contacted him shortly thereafter. Sgt Dearing asked CO Barber if he had covered the camera. CO Barber admitted that he had. Sgt Dearing ordered him to uncover the camera and to report to her office with a union representative.

132In cross-examination, CO Barber agreed that the security office was a restricted area and stated that he had only been inside it approximately six times in his 17 years service at Maplehurst. The last time he had been in the security office prior to December 28, 2018 was approximately six to 12 months earlier. Further, he had only seen the central control module displayed on the monitors when he was in the security office that time and the time before that, the monitors not having been installed prior to that time. He conceded that he did not know whether someone was in fact “constantly watching and judging” him on December 28, 2018, but stated “the feeling was there”. He had been stressed about that in the past but not as stressed as on that day. He moved a small Christmas tree so that it blocked the camera. He agreed that he was not disciplined as a result of this incident. He denied having blocked the camera in the past himself, but stated that he had seen other staff do so, although not with the Christmas tree. He was asked how long the camera remained blocked on those instances and stated that he had seen it blocked for an entire shift.

133In his declaration, Sgt Essery referred to the ISPPM:

Section 3.0 of the ISSPM’s section on Technology states that the Correctional Services policy is to ensure that:

• Audio and video surveillance systems are designed to protect the safety and security of all individuals as well as government assets.

• Audio and video technology are tools to enhance safety and security and do not lessen the responsibility of employees to remain vigilant and carry out the full range of prescribed security functions while performing their duties.

• Audio and video recordings will only be accessed by the superintendent (or designate) in conjunction with an investigation or other authorized Ministry business. Recorded information may be disclosed to the Ontario Ombudsman to assist in an investigation, police services and to aid in law enforcement or other required by law.

134Sgt Essery described the duties of control module officers:

The daily duties of the Control Officer include responding to alarms and trouble signals; issuing keys to appropriate employees and maintaining the record of all keys issued and returned; operating the internal and external telephone equipment during evening and night hours or at other times as instructed; operating the PA system; and testing all communication, surveillance and alarm systems.

135He noted that there is a surveillance camera within each control module which provides a view of the interior of each control module. The control module cameras have always been part of the CCTV system installed at Maplehurst.

136Live feeds from the surveillance cameras at Maplehurst appear in the offices of various managerial employees, including the Security Office within which Sgt Essery works. Sgt Essery described the workload of the Security Office as very high. One of his primary duties is the downloading of recordings related to incidents which are subject to investigation. Hundreds of DVDs per year are created as a result. When the system is switched on for this purpose, it auto-populates with the live feeds from the cameras from which recordings were last being downloaded. Sgt Essery stated:

10. The Security Office does not do live monitoring of the cameras. We do not have the time nor the staff resources to do live monitoring of the cameras, of which there were approximately 900 in total at MHCC. ….

137The portions of Sgt Essery’s declaration specific to the December 28, 2018 incident read as follows:

Events of December 28, 2018

11. The issue with the camera being blocked has been an ongoing issue in Central Control even before the incident on December 28, 2018. At one point, staff who were assigned to Central Control had brought in a decorative tree approximately three feet in height. The tree was placed in front of the camera in Central Control such that the ornament at the top of the tree would block the view of the camera lens. Depending on the time of the year, the ornament may vary between Christmas, Halloween or Valentine’s Day decorations. Previous orders to move the tree have not stopped the attempts by Central Control staff to block the view of the camera lens, as they would resort to using balloons or suspending items from the ceiling. In other instances, Central Control staff will directly place paper or other materials to directly cover up the camera lens. To my knowledge, there has not been an issue with staff blocking the camera in the control modules other than in Central Control.

12. I do have a recollection of the incident on Friday, December 28, 2018 that was described in CO Barber’s declaration and occurrence report. Based on the time of the incident report by CO Barber, the incident would have occurred just after I came on shift at 0700 hrs. I do not have any specific recollection as to why the stream from Central Control was on my monitor that morning. Based on my practice, however, I expect that I was downloading from the Central Control stream the previous day, and the system auto-populated with the Central Control stream when it was turned on again that morning. I can definitively say that I was not doing a live monitoring of the video stream from Central Control on that morning. As I previously mentioned, there is neither the time nor the staff resources in the Security Office to perform live monitoring.

13. As a manager, when I come across an obstruction on a piece of equipment, it was my duty to address the issue. I do remember noticing on the morning of the 28th that the view from Central Control’s camera was obscured, and I had asked Sgt Nicole Dearing to investigate and address the issue. It is my understanding that Sgt Dearing and Sgt Guhbin then went to Central Control to address the issue with the officer. As set out in the ISPPM, cameras within the Institution are designed to protect the safety and security of all individuals as well as government assets, and audio and video technology are tools to enhance safety and security. Therefore, the deliberate obstruction of the view of a camera lens jeopardies [sic] the safety and security of the institution and is not acceptable conduct by a staff member.

138In cross-examination, Sgt Essery agreed the surveillance cameras could be used for live monitoring of staff. He repeatedly denied, however, that the Security Office used the surveillance cameras to do live monitoring of the central control module. He testified recordings of the feed from the central control module camera are downloaded for use of force investigations. This is to ensure continuity of evidence, because that camera captures a portion of a hallway through which inmates are escorted from a unit to segregation. The camera also shows the whole inside of the central control module, unless it has been blocked by staff within the central control module.

139The Union asserts the Employer is arguing that the camera in the central control module is reviewed in order to observe the movement of inmates out in the hall and that it is just unfortunate that it happens to capture the officers working in the central control module. The Union notes that CO Barber’s evidence was that he observed a live feed from the central control module when he was in the Security Office. The Union rejects the proposition that could have been “just by chance”.

140In my view, this argument is not made out on the evidence. It is clear that Sgt Essery must have seen the live feed from the central control module on December 28, 2018, as he observed that the live feed was obstructed on that date. However, Sgt Essery’s evidence that he was not monitoring the live feed from the central central module on that date is plausible given his explanation of the work of the Security Office and the way in which that would result in the live feed from the central control module auto-populating the monitor. CO Barber’s evidence that he had observed a live feed from the central control module in the Security Office on two prior occasions over the course of his 17 years of employment, the last time being six to 12 months prior to the December 28, 2018 incident, is not sufficient to cause me to doubt Sgt Essery’s direct evidence that he was not engaged in live monitoring the control module on that day. I also agree with the Employer that the fact CO Barber had observed the camera in the central control module obstructed for an entire shift tends to rebut any inference that the live feed from the central control module is regularly monitored. If it were, one would expect that the Employer would have directed the removal of the obstruction during the course of that shift. In the result, I conclude Sgt Essery’s observation on December 28, 2018 of the fact the surveillance camera in the central control unit had been obstructed was not because he was monitoring the performance of the officers in the central control, but rather in good faith and incidental to a reasonably necessary and proper purpose. That purpose was the downloading of recordings related to incidents which are subject to investigation.

141The Union argues that even if cameras are needed to observe inmates in the hallway passing by the central control module, those cameras do not need to be located where they monitor the central control module officers all day, every day. The Union seeks, at minimum, a direction similar to the one granted by Arbitrator Howe in William Neilson Dairy, repositioning the central control module surveillance camera or changing the scope of its view. The Employer argues this would have the effect of creating a blind spot in a secure area of a correctional institution.

142In my view, there is no question that the mere fact of being under the gaze of a surveillance camera engages privacy interests of employees, whether or not the employee is actually observed by means of that camera. The issue, in the first instance, is whether the placement by the Employer of a surveillance camera so as to capture the central control module was done in good faith for a purpose consistent with that permitted by Appendix COR10 and whether it was reasonably necessary in order to accomplish that purpose. That purpose is “the safety and security of staff, inmates and property of the respective ministry.”

143The evidence as to why the surveillance camera was placed in the central control module was scant. The ISPPM indicates “audio and video technology are tools to enhance safety and security”. Sgt Essery’s evidence suggests that was the purpose for the camera in the central control module. It is clear the duties of the officers in the control module are reasonably necessary to the safety and security of inmates, staff and property in the building. I infer the ability, if necessary, to observe central control module officers in the performance of those duties has a safety and security function. The camera is also used to observe the hallway next to the central control module through which inmates pass, in particular when they are being escorted to or from the segregation units. There is no dispute that this has a safety and security function. There is no evidence that the camera was placed in the central control module for any other purposes. I conclude its placement was done in good faith for purposes permitted by Appendix COR10.

144Was the placement of a camera in the central control module reasonably necessary to accomplish these purposes? I am satisfied that it was reasonably necessary for the purpose of observing the central control module officers in the performance of their duties. It is not apparent that there is any other means of doing so. However, I am not satisfied that placement of a camera in the control module was reasonably necessary for the purpose of observing inmates in the hallway as they are being escorted to and from the segregation units. It is not apparent why a camera placed in the hallway could not be used for that purpose. There was simply no evidence on this point at all.

145I turn now to consider the reasonable expectations of privacy of the central control module officers. In my view, given the nature of their duties, they ought to reasonably expect that they may be subject to observation through the camera if it is reasonably necessary for the Employer to observe the performance of those duties for a safety and security purpose. Further, they ought to reasonably expect that they may be subject to observation incidental to observation of the camera feed or record for some other necessary safety and security purpose. The difficulty with the observation of the central control module camera feed or record for the purpose of observing inmates in the hallway is that the reasonable necessity of doing so has not been established. In the absence of the Employer establishing the reasonable necessity of doing so, given the frequency with which it appears the central control module camera feed or record is checked for this purpose, the sense of violation of privacy, expressed by CO Stroud, is not unreasonable.

146On balance I find the installation of a camera in the central control module does not, itself, violate the collective agreement but that the reasonable necessity of using that camera for the purpose of observing the passage of inmates in the hallway next to the control module has not been established. I direct the Employer to consider whether there are means of observing the passage of inmates in the hallway next to the central control module which do not result in the observation of the central control module officers. This includes, but is not limited to, considering whether a separate camera could be installed in the hallway.

The Use of Surveillance Cameras to Perform “Spot Checks”

147The last group of reference cases all relate to the Employer’s use of surveillance recordings in 2020 at SWDC to conduct “spot checks” of whether COs had complied with the shift changeover procedures. Those procedures are set out in a “Superintendent’s Directive” for SWDC dated July 24, 2020. They require the CO assuming duty to count all inmates in the area in the presence of the CO being relieved. The CO assuming duty is then required to examine the “static” security equipment (i.e. walls, doors and windows), all “issued equipment” (i.e. issued to inmates) and any restraints, to ensure they are all present, secure and functioning in good working order. The CO assuming duty is then required to complete a Certificate which includes the number of inmates in the area, the condition of the static and issued equipment and also the number of keys handed over.

148The declaration of Dep. Supt. Janisse sets out most of the facts with respect to the changeover issue. There was no material dispute with the facts therein (as distinct from expressions of opinion), except as noted below.

4. In October 2019, an inmate death occurred at SWDC. The subsequent investigation by CSOI determined that staff were not performing proper shift changeovers and that there was widespread non-compliance. The performance of a proper shift changeover procedure is essential to the safety and security of inmates and staff. As part of a proper changeover procedure, a CO is required to determine the number of inmates in the area, the number of keys handed over, and the condition of static security equipment and issued equipment. By doing a proper changeover, the COs are accounting for the inmates and also for items that could be used as weapons or to facilitate an escape.

5. Because the CSOI had indicated an issue with shift changeovers, I went back to review videos at random days on random units and confirmed that there was little to no compliance with proper changeovers. For instance, the Officers were not even conducting a tour of the area, looking into the cells, counting the inmates or accounting for issued equipment.

6. To improve staff compliance with the shift changeover procedure, the Superintendent and myself sent reminders to educate staff regarding the requirements. These reminders included the Superintendent’s Directive dated July 24, 2020 issued by A/Superintendent Carole Deschaine, and also an August 26, 2020 memo issued by myself in which I noted an improvement in compliance with the shift changeover procedures and introduced a new interim procedure for the 1900 hr shift changeover. Additionally, Sgt Randy Simpraga and I met with Mr. Stroud on several occasions in his capacity as Local President to enlist his support to get staff to do proper shift changeovers. Mr. Stroud in those meetings stated he agreed with us for the need to do proper shift changeovers and said he will help us with getting his members on board.

7. Because there are 12 different changeovers conducted simultaneously twice per day at 0700 hours and 1900 hours, it is not feasible for Sergeants to physically attend all the changeovers. In some instances, Sergeants have done spot checks by reviewing video and also watched the shift changeovers through the monitors. The spot checks were not intended to lead to disciplining officers, and no one has been disciplined as a result of the spot checks. Further, spot checks were not done for other periods to review if officers were performing their duties properly during the shift or to review their punctuality for attendance at work. Instead, the spot checks were prompted by a specific concern about shift changeovers that was identified by the CSOI investigation.

8. Sgt Simpraga had sent out the Appendix COR10 notice to Mr. Stroud, the Local President, before we started doing spot checks on the changeovers in order to let the Union know that we were going to monitor them. On July 30, 2020 at 10:54 AM, Mr. Stroud emailed myself to question the Appendix COR10 notices which were being sent out by Sgt Simpraga. I sent an email to Mr. Stroud on the afternoon of July 30th at 1:52 PM stating that the notice was sent in error, and that the Ministry was not “using electronic audio or video recordings for discipline or to conduct an investigation nor will be meeting with any employees for the purpose of an investigation…”

9. This clarification email was sent because the intention of the spot checks was not to investigate or to discipline the officers who did not perform a shift changeover properly. As mentioned earlier, the Institution did not discipline anyone as a result of the spot checks. The video was being used as a tool to assist us with managing a compliance issue in a large institution that was identified by a CSOI investigation, to ensure that the safety and security of the institution is being met. Shortly after we started doing the spot checks, we saw a dramatic improvement with shift changeover compliance. There were two or three occasions I can recall since then where I checked some random units and did not find any issues with the way shift changeovers are being conducted. Our issue with the changeovers is considered resolved at this time. Management does not currently have any concerns.

10. On September 3, 2020, Sgt Simpraga and I met with Mr. Stroud, who attended with CO Renzo Anzolin as a support person. On September 2, 2020, Sgt Simpraga had directed Mr. Stroud to submit an occurrence report before the completion of his next scheduled shift regarding the relief of his B4 Primary duties on Tuesday, September 1, 2020. On the morning of September 3, 2020, Mr. Stroud had emailed Mr. Simpraga and copied myself, other members of senior administration and Western Regional Office, questioning Mr. Simpraga’s direction during the September 3, 2020 AM shift briefing regarding how staff are to instruct inmates to enter their cells for the night shift changeover. I found his questions to be nonsensical and unrealistic. It was my belief that he was trying to dissect the memo that was meant to help his members by breaking it down minute by minute in an attempt to paint a picture to others that the management at SWDC was being unreasonable and heavy handed. That couldn’t be farther from the truth.

11. During the meeting, Mr. Stroud said we cannot look at the video to see if COs are doing proper shift changeover. Sgt Simpraga and I explained that there has been a Directive sent out and I said that the Institution needs to ensure compliance with the Directive. When we did the review and spot checks, it was found that Mr. Stroud himself was not doing a proper shift changeover. Sgt Simpraga had then requested an occurrence report from Mr. Stroud and also other officers who did not do a proper shift changeover.

12. I felt compelled to have a meeting with Mr. Stroud to show him a video of his changeover, and to explain that it would be difficult for him to get the members on board with conducting proper shift changeovers if he himself was not doing them properly. The issue with Mr. Stroud was that he did not count the inmates during the changeover. I showed Mr. Stroud the video, who insisted that he did count the inmates despite the video showing that he was not doing the count. Mr. Stroud’s response was that he asked the other officer as to what the count was, and that to him was same as doing the count. I told him that he needed to do the count himself. In addition to this I found his response to be absurd and not believable. I believe that Mr. Stroud absolutely knows that asking someone what the count is does not qualify as “conducting a count” for the purposes of a changeover. The purpose of showing Mr. Stroud the video was not to investigate or to potentially discipline him. If that was the intention, we would have first issued the Appendix COR10 notice, and he would not have been afforded the opportunity to see it during the meeting.

13. At the September 3rd meeting I said that I would hold off on further requests for asking for occurrence reports until Mr. Stroud has had the chance to get his members on board to do proper shift changeover. However, there was no agreement for Mr. Stroud not to submit the report that was previously requested by Sgt Simpraga on September 2nd. On September 4th, Mr. Stroud emailed Sgt Simpraga to state that there has been a mutual agreement during the September 3rd meeting that no reports will be requested or relied upon pertaining to the events which were displayed / shown on video. Sgt Simpraga then responded by email on September 4th to reiterate that the previously requested occurrence report must be submitted.

149CO Stroud’s declaration addressed this issue on behalf of the Union and he was subject to cross-examination. He was directed to the requirement in the Superintendent’s Directive that the CO assuming duty examine “all issued equipment”. He agreed this could include a mop and a bucket issued to an inmate for cleaning purposes. He also agreed that it would be important to ensure a mop and a bucket were accounted for because they could be fashioned into weapons by inmates. He was directed to the requirement in the Directive that the CO assuming duty certify the number of inmates in the area and was asked why it was important to do so. He responded it was important to do so because the Directive required it, and also because one of the primary objectives of a CO is to account for the inmates in the area which they are taking over to make sure none had escaped.

150CO Stroud also agreed that he had several discussions with Dep. Supt. Janisse and Sgt Simpraga in June of 2020 about the importance of following shift changeover procedure. He agreed with them that it was important and offered the assistance of the Local in getting buy-in from the members. He stated he encouraged Dep. Supt. Janisse and Sgt Simpraga to give the members some time to change their behaviour, noting that “we all want to do a good job and ensure everything is done properly and safely”. He stated that he did in fact speak to the Local members to educate them on this issue, not all of them but a majority of them.

151CO Stroud stated that he had never been subject to a formal performance review while at SWDC and that to his knowledge neither had any other CO since the time the building first opened (which was 2014).

152CO Stroud took issue with Dep. Supt. Janisse's statement that no CO had been disciplined as a result of the spot checks. In particular, he stated that COs had received letters of counsel in relation to shift changeover. In his mind, this constituted discipline. I disagree. The jurisprudence of this Board is clear that a true letter of counsel does not constitute discipline. I note the Union did not argue that any CO was subject to discipline as a result of the spot checks.

153Dep. Supt. Janisse was also subject to cross-examination. He agreed that there was nothing preventing various managerial employees from going on the floor to observe whether or not COs were performing the shift changeover properly, but referred to the fact that some of them had other duties and that others were not scheduled to work on weekends and it was unlikely that they would be. He also agreed that in reviewing the videos to determine whether or not COs had completed the shift changeover properly, managerial staff were observing staff in the performance of their duties in order to check whether they were performing the shift changeovers correctly.

154The Union notes Dep. Supt. Janisse’s declaration indicates on several occasions that surveillance video was used as a tool by the Employer to assist in managing a “compliance” issue. The Union argues that is supervision in the purest sense. The Union also relies on Dep. Supt. Janisse’s agreement in cross-examination that the spot checks of the videos were to review the performance by COs of their duties. The Union argues the purpose of this review is to evaluate and monitor performance, which the Union argues is contrary to Appendix COR10.

155The Employer argues in the reference cases at hand, it was responding to a finding in a CSOI report that shift changes were not being done properly and that there was widespread non-compliance. This was a potential security issue. The Employer took a number of steps to attempt to educate staff on this issue. Then the Employer undertook spot checks of recorded surveillance video to ensure that shift changeovers were being done properly. The result was a dramatic improvement in shift changeover compliance. No staff were disciplined. The Employer argues that this was a proper use of the surveillance video: to address a narrow security issue.

156The Employer then turns to consider whether the restrictions set out in Appendix COR10 on the use of surveillance video were violated. In particular, the part of Appendix COR10 which states surveillance equipment is “not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance.”

157With respect to whether the spot checks were used “as a replacement for supervising or managing”, the Employer argues the evidence establishes that Dep. Supt. Janisse was doing spot checks to address a specific safety issue identified by CSOI: widespread non-compliance with shift changeover procedures. Dep. Supt. Janisse was not looking at “performance writ large”. The spot checks were not being used as a “replacement” for managing employees. That is, they were not being used “instead” of managing employees. On the contrary, the Employer had also sent directives to the employees, worked with the Local President on how to work with the members of the Local and had shown the President of the Local video of his own shift changeover so that he would understand what he had done improperly.

157With respect to whether the spot checks were used “as a means to evaluate employee performance”, the Employer argues they were not. Dep. Supt. Janisse’s evidence was that he was doing spot checks in order to ensure that shift changeover was being done properly.

158In response to questions from me, the Employer concedes that there has to be a basis for concern before the Employer uses surveillance video to conduct spot checks, but argues in this case there was one, specifically the CSOI finding that staff were not performing proper shift changeovers. The non-compliance was not limited to one or two individuals, but rather was widespread. The performance of shift changeovers is a safety and security issue. Dep. Supt. Janisse’s evidence was that he conducted the spot checks in order to address this concern. The Employer argues it was not required to investigate whether this issue could be addressed in less privacy intrusive ways, citing Ebco. With respect to how long the Employer would be permitted to continue to conduct the spot checks, the Employer argues that it is permitted to do so until the concern which gave rise to the spot checks in the first place is resolved to its satisfaction.

159Returning to the issue of whether the spot checks were used as a means to evaluate employee performance, the Employer argues they were not. Indeed, CO Stroud’s evidence was that there had been no formal performance reviews during his time at SWDC. The Employer also notes that no employee was disciplined as a result of the spot checks. Some employees, specifically CO Stroud, were asked to write an occurrence report in relation to why he had not conducted a shift changeover properly. However, the Employer argues, an occurrence report is not an evaluation and while an occurrence report may result in discipline this is not always the case.

160In reply, the Union argues the language of the parties’ collective agreement is unique and must govern. With respect to the limitation in Appendix COR10 on the use of surveillance as “a replacement for supervising or managing”, the Union rejects the equation of the term “replacement for” with the term “instead of”, arguing that if that were the case the Employer could always argue that a use of surveillance cameras or recordings to “supervise or manage” was not being done as a replacement of supervision or management but as a supplement to supervision or management. The Union rejects the premise of the Employer’s argument that Dep. Supt. Janisse was not engaged in review of “performance writ large”. Appendix COR10 precludes the use of surveillance “as a means to evaluate employee performance.” It does not refer to “performance writ large”.

161With respect to the questions I had posed to the Employer, the Union argues that spot checks of surveillance videos to ensure compliance with shift changeover procedures are not permitted at all because Dep. Supt. Janisse’s evidence established that an alternative existed: the managers could “get out of their chairs and manage”. Further, that is what Appendix COR10 requires given the restrictions it places on the use of surveillance equipment for managing or supervising of employees. The Union argues the fact improper shift changeovers may create a security risk is irrelevant because of those same restrictions.

162In my view, the spot checks of surveillance video to determine whether or not COs were complying with shift changeover procedures clearly amount to monitoring the performance of work by the COs. However, it also had the purpose of ensuring the safety and security of the institution. The safety and security purpose was established by the evidence of Dep. Supt. Janisse. A CSOI investigation had identified wide-spread non-compliance with the shift changeover procedures. Non-compliance with the shift changeover procedures was a security issue. Dep. Supt. Janisse testified the spot checks were done in order to address that issue. I also note that CO Stroud agreed that compliance with shift changeover procedures was important. He agreed that shift changeover procedures serve important objectives of ensuring any issued mop and pail were accounted for, lest they be turned into weapons, and ensuring that all inmates in the area were accounted for, lest they have escaped. These readily fall within the rubric of safety and security. I also note that Dep. Supt. Janisse’s unchallenged evidence was that the spot checks were limited to ensuring compliance with the shift changeover procedures. I conclude, therefore, the purpose the Employer engaged in the spot checks was for the safety and security of staff, inmates and property at SWDC. This purpose is permitted by Appendix COR10.

163For similar reasons, I am satisfied the spot checks were conducted in good faith in furtherance of that purpose. Dep. Supt. Janisse’s evidence to that effect was unchallenged and there is no evidence to the contrary. I note as well the Union did not allege bad faith on the part of the Employer.

164This leaves the question of the reasonable necessity of using spot checks of the surveillance videos to accomplish this result. The Employer argues that an employer is not required to show that there were no viable, less privacy intrusive ways of accomplishing its objective. I agree there is no absolute requirement. However, the extent to which an employer has established the reasonable necessity of privacy intrusions is a factor to be considered during the balancing exercise. Failure to show that other possibilities were considered will make it challenging for the employer to establish the reasonable necessity of the means chosen.

165In this instance, the spot checks of surveillance videos were used by the Employer to address widespread non-compliance with shift changeover procedures. As stated above, I find this was done in good faith for the permitted purpose of safety and security. Clearly the use of videos was helpful to the Employer in accomplishing this purpose, but was it reasonably necessary?

166The Union argues the Employer could have directed supervisory staff to get on the floor to observe the conduct. The Employer responds that there are insufficient staff to do so given their other duties. In my view, this is at best only a partial answer. It is not clear to me that in-person supervision of employees was required to address the shift changeover issue. The fact the non-compliance was widespread suggests this was, at least in the first instance, a performance issue which might be addressed by training. Indeed, Dep. Supt. Janisse’s evidence establishes the Employer’s primary means of addressing this issue was to send “reminders to educate staff regarding the requirements”. Dep. Supt. Janisse also sought out and received the cooperation of the Union through meetings with CO Stroud, the President of the Local. CO Stroud’s evidence was that he agreed this was an important safety issue, offered to assist, asked Dep. Supt. Janisse to give the members some time, and that he personally spoke to a majority of the members about this issue.

167The Employer argues there was a dramatic improvement in compliance with the shift changeover procedures. It is not at all clear to me that the spot checks, as distinct from the training, were the reason for this improvement. On the contrary, the Appendix COR10 notice sent in error by Sgt Simpranga (which advised that the Employer intended to use surveillance video showing improper changeovers for disciplinary purposes), the spot checks of surveillance video to determine compliance and the resulting requests that COs provide occurrence reports in relation to failure to follow proper procedures, all appear to have served primarily as the source of aggravation of relations between the Union and the Employer.

168In the result, I find the Employer has not established the reasonable necessity of impinging upon the privacy interests of the COs at SWDC by performing spot checks of surveillance video to ensure compliance with the changeover procedures in these reference cases.

169I turn now to the balancing exercise. As the parties did not directly address the balancing exercise in their arguments with respect to this group of cases, I will be brief on this issue.

170The balancing exercise requires consideration of whether the expectations of privacy of COs were objectively reasonable in the circumstances. As noted, the fact that wide-spread surveillance is known to take place within correctional institutions and that the resulting videos are known to be reviewed when there are serious incidents involving death or injury to an inmate weighs against any reasonable expectation of privacy. Further, employees know or ought to know that they may be disciplined in relation to misconduct during the performance of their duties which becomes known to the Employer.

171The non-compliance with shift changeover procedures, however, was not misconduct. It was a wide spread performance issue of legitimate concern because it had safety and security implications. The provisions of Appendix COR10 are also relevant to the assessment of the reasonableness of employees’ expectations of privacy. COR 10 provides in part: “The use of electronic monitoring/surveillance equipment is not to be used as a replacement for supervising or managing; or as a means to evaluate employee performance.” Simply stated, the employees’ expectation of privacy with respect to the performance of their duties is more reasonable than an expectation of privacy with respect to misconduct. Given the Employer failed to establish the reasonable necessity of performing the spot checks, those privacy interests prevail.

Conclusion

172For the reasons stated:

(i) I find the Employer breached the collective agreement when the Block Sergeant engaged in surveillance of CO Stroud at SWDC on February 14, 2020.

(ii) I find the installation of a camera in the central control module at SWDC does not, itself, violate the collective agreement but that the reasonable necessity of using that camera for the purpose of observing the passage of inmates in the hallway next to the control module has not been established. I direct the Employer to consider whether there are means of observing the passage of inmates in the hallway next to the central control module which do not result in the observation of the central control module officers. This includes, but is not limited to, considering whether a separate camera could be installed in the hallway.

(iii) I find the Employer breached the collective agreement at SWDC in 2020 by performing spot checks of surveillance video to ensure compliance with the shift changeover procedures.

173On the agreement of the parties, I remained seized should they be unable to agree on what, if any, further remedy should be granted in relation to these findings. I note in this respect the parties’ agreement recorded in the July 20, 2020 decision:

The issue of individual remedies shall be bifurcated. The Employer reserves the right to argue that no remedy should be granted in any particular grievance, including on the basis that it is stale dated.

Footnotes

1. 1While there was no evidence directly on point, I infer from the evidence of Gary Rainford, an inspector with CSOI, that the investigation, review of surveillance tapes and consequent identification of CO Smith using her cellphone while on duty at OCDC were all done by CSOI. I reach this conclusion based on Inspector Rainford’s evidence that an investigation into incidents involving death of an inmate would be conducted by an investigator of CSOI. In any event, on the evidence before me there would be no material difference based on whether the investigation was conducted by the management of OCDC or CSOI.
2. 2Given that the primary target of the surveillance cameras at a correctional facility are its inmates, I consider it appropriate to disclose as few of the security details as possible.