Admissibility of Surreptitious Video Surveillance

Your position at arbitration is only as good as the supporting evidence. Video evidence can be a compelling tool and the very qualities that make it compelling also make it invasive. This is particularly the case for surreptitious video evidence. As with other invasive evidence gathering methods, admissibility rules are relatively strict. These rules must be adhered to or investigative efforts are all for nought.

A recent BC arbitration, EBCO Metal Finishing Ltd., (“the company”), and International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Shopmens’ Local 712, (the “union”), [2004] B.C.C.A.A.A. No. 260, deals with the admissibility of surreptitious video evidence in the workplace. The case gives a thorough recitation of the law dealing with this type of evidence and outlines the test for admissibility.

Briefly, management had productivity concerns about two workers and the decision was made to secretly videotape their on-shift conduct. The tape showed that the workers were not working as they should and they were dismissed for time theft. At hearing management sought to rely on the tape and the union objected to its admissibility. The proceeding concerned itself largely with the admissibility of the taped evidence.

Arbitrator Blasina states the following in paragraph 20:

At present the only issue before me is the admissibility of surreptitious, workplace, video surveillance; and, in taking the decision to undertake such surveillance it is a fact that there were reasonable options available, which were not considered by management. This will be further discussed later in this award.

He found that management did not consider, or make use of, reasonable alternatives before resorting to videotaping the grievors and held the tape inadmissible on that basis.

In addition to common law privacy principles, Arbitrator Blasina relied on section 12(1)(c) and 13(2) of the British Columbia Personal Information Protection Act, S.B.C. 2003, c. 63 (“PIPA”) and stated that a reasonableness standard applies to the collection of information in the workplace.

Interestingly, the case of Richardson v. Davis Wire Industries Ltd., [1997] B.C.J. No. 937 (B.C.S.C.), was considered and rejected by Arbitrator Blasina. That case concerned a wrongful dismissal in which surreptitious video evidence was admitted. Madam Justice Kirkpatrick, in considering the Privacy Act then in force, stated that that Act merely provided a foundation for damages and did not make improperly obtained evidence inadmissible. Arbitrator Blasina disgreed with this position in the context of PIPA and stated that it would be a jurisdictional error to admit evidence contrary to PIPA.

In conclusion, video evidence obtained in a “reasonable” manner is an obviously powerful tool. It’s perhaps a healthy sign that as “powers of observation” grow stronger and more capable privacy concerns are receiving greater consideration. In any event, Ebco provides a current roadmap for evidentiary matters that touch upon privacy related concerns in an administrative law context. It will be a useful case for both those relying on and objecting to surreptitiously gathered evidence.

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