Case Name:
EBCO Metal Finishing Ltd. v. International Assn. of
Bridge, Structural, Ornamental & Reinforcing Iron
Workers, Shopmens' Local 712

IN THE MATTER OF an Expedited Arbitration
Between
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
Award No. X-036/04

British Columbia
Collective Agreement Arbitration
R.B. Blasina (Arbitrator)

Heard: (Vancouver, B.C.) September 21, 22, 27, 28;
October 14, 18 and November 8, 2004.
Award: November 19, 2004.
(62 paras.)

[Editor's Note: Supplementary Award filed February 24,
2005. See [2005] B.C.C.A.A.A. No. 56.]

       Re: Interlocutory Award - Admissibility of Video Surveillance

Appearances:

Duncan Macphail, for the company.

Derrill Thompson, for the union.


INTERLOCUTORY AWARD

I

 1      The Union submitted three grievances to arbitration, which this arbitrator has held should be heard together. There are two grievances challenging the discharge of two metal polishers; Maher Zaydan and Abbas Hobuti. The third grievance is a union policy grievance protesting surreptitious video surveillance at the Company's two work sites in Richmond, B.C.; "the Alderbridge site" and "the Knox site". The Grievors are employed at the Alderbridge site. This site can be generally described as a metal polishing and plating shop, and the Knox site as a galvanizing shop.

 2      The Grievors were terminated by similar letters dated July 16, 2004. The Company contends that the Grievors have been dishonest and have effectively committed theft of time by not working diligently during the latter part of their shift when they would work unsupervised. Both discharge letters stated in part:

We have come to the conclusion, based on our observations, that you have been not working continuously throughout your shift. (sic) You work the afternoon shift, such that for a significant portion of your shift you are expected to work without any supervision. We now understand that you do not work for as much as several hours during your shift. You have misrepresented your ability to do the work in question. It is clear that you are able to do much more work in a full shift then you have represented to us.

We also reviewed our concerns about you not working for your entire shift in an interview and you denied any such allegation. You told us that you worked continuously through your shift and that in fact sometimes you are so busy that you miss your breaks. Our observations indicate that this is simply a lie. Unfortunately there is no better way to comment on your honesty during our investigation. We were deeply disappointed in your answers in the interview. Your dishonesty has irreparably broken the trust required in an employment relationship. We provided you every opportunity to tell us the truth in our interview yet you continued demonstrate your total lack of candour.

 3      The Company relies heavily on videotaped surveillance by means of hidden video cameras. At the very commencement of the hearing, Counsel for the Union made a preliminary motion requesting a declaration that the videotape evidence be declared inadmissible. This initiated a presentation of submissions by counsel before it was clear what were the circumstances preceding the surreptitious video surveillance. Included in the debate was the issue whether this arbitrator should view the videotape evidence prior to ruling on its admissibility. This arbitrator held that he would not view the videotape evidence prior to deciding the admissibility issue. This decision will be explained later in this award. This arbitrator declined to rule on the admissibility issue at the time, considering the preliminary motion to be premature. Thereafter the hearing continued to the point where the Company would wish to enter the videotape. The hearing had evolved to a voir dire; and, Counsel again presented argument, written and oral.

 4      Four witnesses have testified thus far: Bill Wolokoff, Sales and Production Control; Gord Eppich, General Manager; Sandi Arduini, Working Foreman; and, Hugo Eppich, Owner.

II

 5      Mr. Zaydan has a seniority date of May 17, 1997, and Mr. Hobuti has a seniority date of February 21, 2001. Both are competent metal polishers. Mr. Zaydan, it was evident from the testimony, was considered to be an exceptionally good metal polisher.

 6      The majority of the dayshift employees work from 7:00 a.m. until 3:00 p.m. Mr. Wolokoff is normally at the site at 6:30 a.m. and leaves at 3:00 p.m. Mr. G. Eppich is normally there from 8:00 a.m. until 4:30 or 5:00 p.m. Messrs. Zaydan and Hobuti, being the most junior polishers, worked an afternoon shift from 12:00 noon to 8:00 p.m. They were entitled to three 10-minute breaks during their shift. They were alone on site for the last three hours of their shift.

 7      The Company is in a price-competitive business, and productivity is fundamental to its ability to survive. The Company had lost a valued customer, Sherwood Industries, to another company. Sherwood preferred the quality of the Company's work and it eventually came back provided the Company could match its competitor's price. In particular Sherwood required polishing of its "EF3" doors, and in order to profitably do that work and remain competitive the Company expected that a polisher should do a minimum of 35 doors per shift. Initially polishers were doing 24 doors a shift, and the 35-door mark was never achieved by any of them.

 8      In May 2002 Mr. G. Eppich did a time study on the EF3 door with one of the dayshift polishers, Sarbjit Chahal. To express it at its simplest, Mr. G. Eppich observed that the process being used involved performing seven operations using three different machines. Mr. G. Eppich determined that the final product could be achieved by performing four operations at one machine. He then had Mr. Chahal do six doors, and considering a 30% allowance for setup, breaks and other inefficiencies, he concluded that a polisher should be able to complete 31.2 doors per shift. The Company was able to negotiate a price adjustment with Sherwood Industries, and 31 doors per shift became the minimum productivity expected.

 9      The "new way" suggested by Mr. G. Eppich was put into effect for "may be a week or two", according to M. Arduini. He testified that "It was just a tryout." Mr. Arduini testified that they went back to the "old way" because it provided better quality, even though it took longer. Mr. G. Eppich was not aware that the polishers had reverted to the old method. It would be two years later, in May, 2002, that he would see Mr. Hobuti working on the EF3 doors according to the old way, and this would lead to the decision to commence surreptitious video surveillance.

 10      In March of 2003, Sherwood Industries altered its construction of the EF3 doors to make them lighter. This would promote productivity, as of course would the familiarity achieved with experience. Nevertheless, there had developed a common perception that it was not possible for a polisher to do 31 EF3 doors per shift. It seemed that the maximum achievable was 30 doors per shift, and that became the norm; and, management could not understand that if 30 doors could be polished over eight hours, then why not 31?

 11      It was not clear from the evidence how or when it was first concluded that "30" was the maximum being produced, and that only "30" could possibly be produced. It was not only the Grievors who were working on the EF3 doors, but it seemed that all had hit this ceiling. In examination-in-chief, Mr. Wolokoff was asked what was his reaction "when the Grievors said it was physically impossible to do more than 30 doors"? He replied, "I tended to believe them, yes." It was not clear whether that "30" figure was first presented by management to the polishers upon its review of the production records, i.e. the "Polishing Daily Productivity" sheets, or whether it was first presented by the polishers, but "30" did become a point of fixation for all concerned.

 12      It became evident at the arbitration hearing, after close examination of the polishers' "Polishing Daily Productivity" sheets, that some polishers were exceeding 30 and were achieving 31 doors. Mr. Hobuti worked on the EF3 doors between June 26, 2003 and December 17, 2003, and during that period he averaged 31.6 doors per 8-hour shift. Marian Jankowski, a dayshift polisher, between July and October 2003, averaged 31.1 doors per 8-hour shift. These numbers were not immediately obvious, but were derived from critical examination of the "Polishing Daily Productivity" sheets.

 13      The practice is that a polisher will bring a number of doors into the polishing department, and perform the first step of the polishing process on all the doors, before proceeding to the next step which again will be performed on all the doors, and so on until all the doors are completed. In 2003, Mr. Hobuti might bring in more than 30 doors during a shift, indeed as high as 40 and 70, and not complete these doors until the following shift or later. On a given day, a polisher might also work on more than one product, i.e. on other types of doors. One would have to track the work order numbers, the number of doors, and the hours applied over succeeding "Polishing Daily Productivity" sheets to determine how many doors were being completed per eight-hour period.

 14      During that same period in 2003, Mr. Zaydan polished 105 EF3 doors in 28.75 hours. This would amount to just under 30 doors (29.24) per shift. Similarly, Tajinder Sharma, a dayshift polisher, was also in 2003, producing slightly less than 30 EF3 doors per shift.

 15      The Grievors did not work on the EF3 doors again until May, 2004. In Mr. Zaydan's case he worked on 10 EF3 doors on May 10, 2004. Mr. Hobuti brought in 30 doors on May 14, 2004; completed the job by finishing one door on May 5, 2004 when he brought in another 30 doors, all of which he finished that day. On May 6, Mr. Hobuti brought in another 30 doors which he finished. The "Polishing Daily Productivity" sheets would indicate that in 2004 Mr. Hobuti would now bring in 30 EF3 doors at a time. Counsel for the Company submitted that this was a radical change in pattern indicative of a decision to limit one's production. That inference, however, is no more probable than the possibility that Mr. Hobuti was innocently bringing in the number of doors that everyone had wrongly come to understand was the maximum that was being done and could be done.

 16      On May 9 or 10, 2004, Mr. G. Eppich was walking by or through the polishing department and he observed Mr. Hobuti working on the EF3 doors. In particular he observed Mr. Hobuti performing a process step which pertained to the old way of polishing the door, and not the new way he had initiated in May, 2002. Not knowing that the new way had long been discontinued, and that Mr. Hobuti was actually performing the job according to the accepted practice at the time, Mr. G. Eppich was puzzled. Mr. G. Eppich wondered how it was that 30 doors could be produced according to the old method, and why then was it being asserted that no more than 30 doors could be produced. He testified, "So, I became very suspicious."

 17      There were four video cameras hidden at the Alderbridge site. They had been installed two years earlier pursuant to the Company's investigation of another matter. The cameras were shut off afterward, but the equipment had not been removed. At present three of those cameras are still there, although not in current operation.

 18      Messrs. Hobuti and Abbas would have been bringing in the EF3 doors at the commencement of their shift, while the dayshift polishers and supervisory and managerial personnel were present. Similarly, they would have commenced performing their work while the dayshift polishers and supervisory and managerial staff were present, and would have been well underway with their work before the others left. Although they were alone for the last three hours of their shift, their productivity with respect to the EF3 door was the same as that for the dayshift polishers.

 19      Mr. G. Eppich did not make any inquiry of Mr. Hobuti, nor of Messrs. Wolokoff or Arduini. He was uninformed about the return to the old way of polishing, and unaware of the actual historic productivity levels, and he was focused on the same number "30". Also, he nor anyone else considered having someone - perhaps Mr. Wolokoff or Mr. G. Eppich himself - actually observe the polishing of the EF3 doors during a shift in order to monitor how the work was being performed and how diligently the polishers were working, or to simply stay late one day until the Grievors finished their shift.

 20      Although I have not viewed the videotapes, it is no secret that, according to the Company, they reveal that the Grievors were not working for part of their shifts. The Union disputes this interpretation. However the Company is asserting that the Grievors are guilty of theft of time. The discharge letters of July 16, 2004 assert, "based on our observations" (i.e. observation of the videotapes), that the Grievors had not been working "continuously" throughout their shift, and that they "do not work for as much as several hours" during their shift. It seems logical that if someone in management had simply stayed and actually monitored the Grievors for the balance of one shift, that they would have applied themselves continuously, and, if they had been shirking before, that their productivity would now betray them. Of course, were that the case, one would have to wonder what the dayshift polishers were doing during their eight hours. This is not stated in consideration of the merits of the case as that will require the analysis for discharge cases described in Wm. Scott & Company Ltd. -and- Canadian Food and Allied Workers Union, P-162, [1977] 1 Canadian LRBR 1 (BCLRB): i.e. is there just cause for some degree of discipline; was the discharge excessive in all the circumstances; should some lesser penalty be substituted? 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.

 21      Mr. G. Eppich took his suspicions to his father, Mr. H. Eppich. Mr. G. Eppich was asked in examination-in-chief, "As a result of your suspicion what did you do?" He said:

I had gone to the owner and discussed my suspicion and I was a little confused as to what I'd seen. At that point we decided to find out what was actually going on, and at that point we decided to turn the cameras back on.

As of May 10, 2004, Mr. G. Eppich would activate the video equipment before leaving at the end of the day. Mr. G. Eppich candidly admitted that no consideration was given to any other method of gaining information, nor was consideration given to initiating surveillance of the dayshift. For his part, Mr. H. Eppich believes that there was some understanding among the polishers at large not to do more than 30 EF3 doors. The video surveillance was conducted on approximately twelve days in May, and on approximately twelve days in June.

 22      In early June an order came in from another customer for polishing a "P90" door. Mr. G. Eppich introduced some efficiencies to the anticipated process, and he undertook a time study with the assistance of Mr. Arduini, similar to that with Mr. Chahal with respect to the EF3 doors. Mr. G. Eppich determined that eighty P90 doors could be done by a polisher in an 8-hour shift.

 23      On June 9, 2004, when Mr. Zaydan came on shift, Mr. G. Eppich met with him and instructed him on how he wanted the P90 doors done. Mr. G. Eppich told Mr. Zaydan that "We should be able to do eighty pieces." However, since this was the first time, he told Mr. Zaydan to do seventy. Mr. Arduini also spoke to Mr. Zaydan briefly about the P90 doors. Mr. Arduini was asked in cross-examination why he believed that Mr. Zaydan had been instructed to do seventy doors. He replied, "Because I saw he brought in seventy doors. Somebody must have told him." Mr. Arduini was referring to the following day, June 10, 2004 when he observed seventy P90 doors in the polishing department, of which work had been done on sixty; and ten were still untouched. When asked just before if, when Mr. Zaydan came in on June 9, he had taken him through the process, Mr. Arduini replied, "Not really, no. We talk about it a little bit. Briefly. Because he knows; he's a skilled man."

 24      Although the practice is to start the first step of the process on all doors before going to the next step on all doors etc., and although Mr. Zaydan had been instructed to do seventy doors, he only worked on sixty. At the same time, no one doubted his competence, and part of the June 9 shift was taken in discussion with Messrs. G. Eppich and Arduini. Mr. G. Eppich estimated he had spent ten to fifteen minutes with Mr. Zaydan. When Mr. Zaydan filled in the "Polishing Daily Productivity" sheet, he originally noted "70" in the column for the number of pieces and he marked down "S/NF", i.e. started but not finished.

 25      On the morning of June 10, 2004 Mr. G. Eppich stated that he saw "sixty doors that were polished that still required greasing around the hinges, and there were ten doors 'raw' still sitting on the cart." That day a relatively new employee, Uthay Kumar, was assigned to complete the sixty doors. According to his "Polishing Daily Productivity" sheet, it took him two hours.

 26      When Mr. Zaydan came to work on June 10, he first met with Mr. Arduini. Mr. Zaydan told Mr. Arduini that he could only do sixty. Mr. Arduini told him that "the paper work says seventy" and that he should change it to "sixty". Mr. Arduini did not indicate having had any suspicion of Mr. Zaydan at the time. The sense of his testimony was that notwithstanding the time study, if only sixty doors could be done in eight hours, i.e. "eight hours work for sixty", then the productivity sheet should reflect that. Mr. Zaydan then scratched out the "70" and wrote down "60". Mr. G. Eppich testified in examination-in-chief that "Originally he [Mr. Zaydan] wrote seventy pieces; then scratched that out, and sixty pieces was written and not finished." He testified that the next day when Mr. Zaydan came in he questioned him as to why he only completed 90% of sixty pieces "and his answer to me was 'I can't do anymore.' Something in that regard." Mr. G. Eppich stated that he was "puzzled" and "confused" considering that the time study indicated eighty P90 doors and Mr. Zaydan had only been instructed to do seventy. Mr. G. Eppich did not apparently probe more deeply with Mr. Zaydan, nor did he discuss the matter with Mr. Arduini, other than having gotten him get someone else to complete the sixty doors.

 27      Counsel for the Company submitted that Mr. Zaydan also gave reasonable cause for the video surveillance by his conduct on June 9 and 10, 2004. Counsel for the Company submitted that Mr. Zaydan had intentionally restricted his production and had attempted to mask this by writing "70" pieces started, and that he only amended it to "60" because he was caught-out. While maintaining that all of the video surveillance was admissible, Counsel for the Company argued in the alternative that at least the video surveillance from June 10, 2004 onward was admissible.

III

 28      Although I do not propose to review the arguments and every case presented by Counsel, all has been considered. The issue at hand is important, not only insofar as the immediate parties are concerned, but also as a matter of public interest. Of course, it is my present duty to determine whether the videotapes, resulting from the video surveillance undertaken in the circumstances of this case, are properly admissible into evidence. I sincerely thank Counsel for their excellent submissions and for providing the numerous authorities which they have cited.

 29      The British Columbia Personal Information Protection Act, S.B.C. 2003, c. 63 ("PIPA") received final assent one year ago on October 23, 2003. The PIPA applies to the private sector. It has been deemed by a Federal Cabinet order dated October 12, 2004 to be substantially similar to the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, Chap. 5, and as such it is the PIPA which applies in the province of British Columbia. The following provisions of the PIPA are noted:

       Consent required

6(1)

An organization must not


(a)

collect personal information about an individual,

(b)

use personal information about an individual, or

(c)

disclose personal information about an individual.


(2)

Subsection (1) does not apply if


(a)

the individual gives consent to the collection, use or disclosure,

(b)

this Act authorized the collection, use or disclosure is authorized without the consent of the individual (sic), or

(c)

this Act deems the collection, use or disclosure to be consented by the individual.


Collection of personal information without consent


12(1)

An organization may collect personal information about an individual without consent or from a source other than the individual, if ...


(c)

it is reasonable to expect that the collection with the consent of the individual would compromise the availability or the accuracy of the personal information and the collection is reasonable for an investigation or a proceeding, ...


Collection of employee personal information


13(1)

Subject to subsection (2), an organization may collect employee personal information without the consent of the individual.

(2)

An organization may not collect employee personal information without the consent of the individual unless


(a)

section 12 allows the collection of the employee personal information without consent, or

(b)

the collection is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.

Section 12(1)(c) permits the collection of information "about an individual" without consent if the collection is "reasonable for an investigation". Section 13(2) prohibits the collection of "employee personal information" without consent unless permitted by Section 12 or "the collection is reasonable for ... managing or terminating an employment relationship". "Investigation" is defined in Section 1 of the PIPA as including an investigation related to "a breach of an agreement". "Personal information" as defined in Section 1 of the PIPA includes "employee personal information"; and "employee personal information" is defined in Section 1:

"employee personal information" means personal information about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual, but does not include personal information that is not about an individual's employment;

In sum, a "reasonable" standard applies to the PIPA; and the PIPA applies at the workplace; it applies to the employment relationship; and, it applies to video surveillance at the workplace.

 30      The right to privacy under the PIPA is not absolute. In particular, the PIPA has had little if any altering effect on the arbitral common law in this province regarding surreptitious video surveillance, and indeed seems to amount to a codification of the arbitral experience in British Columbia. In Pope & Talbot v. Pulp, Paper and Woodworkers of Canada, Local 8, [2003] B.C.C.A.A.A. No. 362 (Munroe), at [paragraph] s 29-31, Arbitrator Munroe noted:

       Both parties referred me to the award in Unisource Canada Inc., July 16, 2003 (Kelleher) as a recent arbitral expression of the issue in cases involving non-surreptitious camera surveillance of the work site. (The Unisource award pre-dates by a few months the enactment in B.C. of the Personal Information Protection Act; however, I do not regard the Act as altering the substance of the issue in cases of this kind.)

       One begins with a clear appreciation that as between 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 Charter 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: cf., British Columbia Maritime Employers Association, June 27, 2002 (Munroe).

       But just as an employee's privacy interests require protection against the overzealous exercise of management rights, so also must an arbitrator acknowledge the employer's legitimate business and property interests. What is required, then, is a contextual and reasonable balancing of interests. There is no absolute rule affording precedence to one legitimate interest over the other. It is a question of whether the particular camera surveillance, in the purported exercise of a management right, is reasonable in the circumstances. That is the substance of the Unisource award, in which the following appears at page 13:


Having reviewed these cases I reach these conclusions. In the absence of an express term in the Collective Agreement, there is no blanket prohibition of video surveillance in the workplace. I do not accept the test stated in St. Mary's Hospital, supra, [Re Saint Mary's Hospital (New Westminster) -and- Hospital Employees Union (1997), 64 L.A.C. (4th) 382 (Larson)] as generally applicable to video surveillance. I think it does commend itself as the appropriate test for what faced Arbitrator Larson in that case: surreptitious use of video surveillance. 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 the circumstances of the case.

Pope and Talbot, supra, was concerned with non-surreptitious video surveillance. The decision validly comments on the legal impact of the PIPA without criticism of Arbitrator Larson's decision in Saint Mary's Hospital, supra, which decision had been considered by Arbitrator Kelleher in Unisource, supra, to have been appropriate for cases of surreptitious video surveillance.

 31      In Saint Mary's Hospital, supra, Arbitrator Larson was concerned with a Union policy grievance protesting the installation of a hidden video camera. After reviewing several cases, Arbitrator Larson concluded that "there would appear to be a kind of hierarchy of protection afforded by the right to privacy"; Saint Mary's Hospital, supra, at p. 396. First would be some actual intrusion upon the body of an employee. Arbitrator Larson held that such actions are protected by the law of trespass and assault and would be absolutely prohibited without the consent of the employee. Second, would be a search of personal effects and spaces. Arbitrator Larson stated in Saint Mary's Hospital, supra, at p. 397:

Second in the order of importance are those actions that involve searches of personal effects and spaces. Properly understood, it is my view that it is only at this level that the right to privacy truly comes into play. The reason for that is as I have already stated, that when it comes to searching the personal effects of employees, trespass and assault have no role to play which, therefore, leaves such issues to be decided based solely on rights of privacy. Re Canada Post Corp. and CU.P.W. (Plant Security) (1990), 10 L.A.C. (4th) 361 (Swan). In that respect, it is important that 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.

Third was surveillance, and within this category, Arbitrator Larson found a variable scale of privacy protection, stating at pp. 398-399, supra:

Thirdly, the surveillance cases are analogous to the cases involving searches of personal effects since the law of trespass and assault have no application in either case. 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.

At the one end of the scale is, what may be called benign surveillance where it is used for the benefit of employees. This was discussed in Puretex Knitting [Re Puretex Knitting Co. -and- Canadian Textile and Chemical Union (1979), 23 L.A.C. (2d) 14 (Ellis)] at p. 30 where the arbitrators gave two examples relating to videotaping work activities for purposes of training and to assist key supervisors who are temporarily disabled. In those kinds of cases there would be little evidence required to justify the surveillance.

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.

Finally, there is surreptitious surveillance which has the greatest potential to affront the privacy rights of employees. It is particularly this kind of surveillance that arbitrations will be astute to require strict justification by the employer and the purpose of the surveillance will be examined carefully. If the surveillance is directed at a particular individual rather than a whole group of employees, or where it is not constant, it may require less justification. Examples of the most serious kinds of infringements against the right to privacy include surveillance of production work, notwithstanding American FMC Corp.[Re FMC Corp. -and- U.A.W., Loc. 724 (1966), 66-1 A.R.B. 3992 (Mittenthal)], or to monitor employees for disciplinary purposes or to conduct surveillance of the social or sensitive areas of the workplace such as locker-rooms, washrooms and lunch-rooms.

After having determined the type, purpose, place and frequency of the 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.[Re Thibodeau-Finch Express Inc. -and- Teamsters Union, Loc. 880 (1988), 32 L.A.C. (3d) 271 (Burkett)]; 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 [Re Algoma Steel Corp. -and- U.S.W., Loc. 2251 (1984), 17 L.A.C. (3d) 172 (Davis)]; and finally, it must ensure that the surveillance is conducted in a systematic and non-discriminatory manner: Re Steels Industrial Products [Re Steels Industrial Products -and- Teamsters Union, Loc. 213 (1991), 24 L.A.C. (4th) 259 (Blasina)].

Arbitrator Larson further stated at p. 400:

What must be kept clearly in mind in these kinds of cases, however, is that the right to privacy is a basic human right which must be not only be guarded but which must also be nurtured through mutual respect and understanding. (sic)  The privacy of a group of employees is so important that an employer must do everything reasonably possible to secure its property before it is entitled to initiate clandestine surveillance. In those terms, it is considered to be more important to prevent problems than to identify a wrongdoer. That principle may apply with less force where there is a single employee who suspected (sic) of wrongdoing but where a wrongdoer can only be identified by intruding upon the privacy rights of a whole group of employees the employer can only do that by first ensuring that nothing else can be done to protect its property. That was not done in this case.

 32      In Re Alberta Wheat Pool -and- Grain Workers' Union Local 333 (1995), 48 L.A.C. (4th) 332 (Williams), the grievor had a lengthy absenteeism record with prolonged absences on weekly indemnity. Although the grievor's absences were supported by medical certificates, the employer suspected, as a result of hearing rumours, that the grievor was traveling from the Vancouver area to the Okanagan and building a house. The employer retained an investigator who went to the Okanagan and lied to the grievor about taking video footage for real estate purposes. Nothing substantial was revealed by this surveillance; and, the employer made no inquiry of the grievor about what he was doing in the Okanagan. Instead it dispatched a second investigator a month later. Although Arbitrator Williams made reference to the Privacy Act, R.S.B.C. 1979, c. 336, he based his decision regarding the admissibility of videotape evidence on the arbitral authorities, particularly Re Doman Forest Products Ltd. New Westminster Division -and- International Woodworkers, Local 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers), and Steels Industrial Products, supra. Arbitrator Williams held at p. 341 of Albert Wheat Pool, supra:

In reference to the employee/employer relationship, there is a line of authority from both judicial and arbitral jurisprudence which generally holds that conducting surveillance on an employee and videotaping his or her conduct without knowledge or consent will amount to a breach of the employee's right to privacy, unless such intrusive conduct can be demonstrably justified by the employer. The onus of establishing that justification rests with the employer.

The right to privacy in the workplace is an important right but it is not absolute. The employer has every right to expect its employee to honour his or her commitment to the employer for which compensation is paid. This includes an obligation to be honest and forthright with the employer in all respects, including the absence from employment for sickness or disability. In this regard, the employer has every right to investigate the reasons for an employee's absence, particularly where suspicious circumstances exist. In the course of that investigation, however, before the employer goes so far as to intrude on the right to an employee's privacy, it must be able to justify that such a course is the only one open to it and the only way in which the truth can be ascertained.

In short, the onus is upon the employer to justify undertaking surveillance by showing that it was uniquely necessary in order to ascertain the truth. Arbitrator Williams concluded that the Employer had good cause to be suspicious of the grievor, but that it could have tested its suspicions by other means. Arbitrator Williams noted that the employer could have confronted the grievor with its suspicions and tested his reaction; and the employer could have questioned the doctors or taken advantage of an opportunity to have its own doctor examine the grievor. Arbitrator Williams held, Alberta Wheat Pool, supra, at pp. 344-345:

The suspicions of the employer, as I have indicated, were justified. I am also satisfied that the employer did have a financial interest in ascertaining whether or not the grievor was malingering. But the real question remains; does the understandable suspicion justify an intrusion into the grievor's privacy by conducting surreptitious observations, and the obtaining of videotape evidence to be used against him?

Mr. Mckellar's decision to dispatch surveillance was taken on the same day he heard the rumour, noted the change of address and made the telephone call. It would be understandable when he called the grievor's home that the grievor may be away. After all, he was not bedridden or confined to his house. No reasonable opportunity was given to the grievor to return that telephone call. No effort was made to attend at his residence and confront him with the rumour and the change of address card. No effort was made to find out what evidence the insurer had or to talk with the grievor's doctor. Mr. Mckellar was, of course, leaving on vacation the next day but that could hardly provide justification for dispatching the surveillance at that time.

In suspicious circumstances surrounding the medical condition of the grievor, the employer has every right to conduct a full investigation but only as a last step should it choose the intrusive alternative of invading the employee's privacy by conducting surveillance.

Where, as in this case there were other methods which could have been taken such as a discussion with the grievor, interrogation of his doctors, and other matters referred to above, those methods surely should have been followed before employing a private investigator to conduct surveillance.

I have concluded in this case that the employer has failed to discharge the onus of demonstrating a justification for surveillance and, accordingly, I rule that the videotapes are inadmissible.

Arbitrator Williams was concerned with the circumstances at the time of the employer's decision to conduct video surveillance. A viewing of the videotape evidence was not necessary to his determination of the admissibility issue.

 33      Arbitrator Williams, in Albert Wheat Pool, supra, also referred to Doman Forest Product, supra, and Steels Industrial Products, supra. In Doman Forest Products, then-Arbitrator Vickers viewed the videotape evidence, and later determined it was inadmissible. Doman Forest Products is a scholarly work to which other arbitrators, including this arbitrator in Steels Industrial Products, supra, have taken reference. Arbitrator Vickers expressed the view that a balancing of interests was required, and in that exercise there were questions that had to be considered. A standard of reasonableness had to be applied. He stated at pp 281-282 of Doman Forest Products, supra:

In my opinion, it is  a balancing of interests that is required. The employee's right to privacy weighed against the company's right to investigate what it might consider to be an abuse of sick leave. Questions to be answered include:


(1)

Was it reasonable, in all of the circumstances, to request a surveillance?

(2)

Was the surveillance conducted in a reasonable manner?

(3)

Were other alternatives open to the company to obtain the evidence it sought?

Arbitrator Vickers declined to rule on the admissibility issue until he heard evidence of the circumstances. He stated at p. 282 of Doman Forest Products:

I have concluded that I cannot determine whether the grievor's right to privacy has been abused until I have heard all of the evidence, including what was done and what was observed, whether visually or electronically. It would be dangerous at this stage of the proceedings to rule evidence inadmissible where I have not had a full opportunity to consider all of the circumstances. Only then can I truly balance the interests. If, upon hearing the evidence, I am satisfied that there has been an invasion of privacy in circumstances which were unreasonable, I would then not hesitate to rule the evidence inadmissible.

The contents of the videotape were taken as part of the circumstances; and, Arbitrator Vickers decided that he would look at the videotape. However, the award does not discuss the specific issue of whether the videotape should actually be viewed prior to determining admissibility.

 34      In Steels Industrial Products, supra, at p. 277, two questions were expressed, to both of which a standard of reasonableness would apply:

(1)

Was it reasonable, in all of the circumstances, to request a surveillance?

(2)

Was the surveillance conducted in a reasonable manner?

Those questions would still apply today. It is my opinion that those questions conform with the proper application of the PIPA.

 35      In Steels Industrial Products, supra, I also looked at the videotape evidence prior to determining its admissibility, and later determined it was admissible. The procedure followed was that the Employer put in its case, including the videotape evidence, and, prior to the commencement of its case, the Union sought a determination on eligibility. This is explained at p. 268 of Steels Industrial Products, supra:

Mr. Stevenson objected to the admissibility of the videotape but allowed for its viewing "under protest", i.e., subject to later argument. This issue was subsequently debated at the close of the employer's case.

This is further explained at p. 272 of the award:

At the conclusion of the employer's case, Mr. Stevenson sought a determination whether the videotape was admissible evidence. Although it was possible to leave the matter for decision until after the conclusion of the case, I decided to issue an interlocutory decision. I did this because Mr. Stevenson indicated he was considering how he would next proceed on behalf of the grievor. In fairness to the grievor and to the arbitration process, I thought it reasonable to decide the issue prior to Mr. Stevenson being required to decide what evidence, if any, he would call. I then heard argument on the issue and made a decision overnight, which decision I orally gave the parties at the commencement the next day. As stated earlier, I decided that the videotape was admissible. In reaching that decision I did not take into account anything that was on the tape.

Steels Industrial Products, supra, explains the procedure by which it came to pass that the videotape was viewed prior to a ruling on admissibility, but again, the award does not discuss the narrow question of whether or not it should be viewed prior to making the evidentiary decision.

 36      In Steels Industrial Products, supra, the videotape evidence was later ruled to be admissible, not because of what was shown on the video-tape, but because it was concluded that the Employer had had no reasonable alternative but to undertake surreptitious surveillance. The grievor had been a problem employee, and proven ready to lie, and to blame others for his wrongdoing; at p. 279, supra:

The employer could have elected simply to confront the grievor with its suspicion or to obtain additional information through non-surreptitious means. I do not think it necessary to analyze all the work-related complaints at this stage. But, by recalling the boot allowance incident and the grievor's persistent denials and his accusation that the store had erred, and by recalling his adventurous and non-caring attitude in the incident of damage to company property and again his subsequent denial, and his accusation that Mr. Heinrich had lied, I found that the employer had acted reasonably in choosing to engage surreptitious surveillance. The grievor had demonstrated an attitude in the face of which it would be unrealistic for the employer to rely on responses from the grievor.

 37      Richardson v. Davis Wire Industries Ltd., [1997] B.C.J. No. 937 (B.C.S.C.) stands for the principle that relevant and material evidence should be admitted, unless excluded by any law or rule of evidence. The case concerned a suit for wrongful dismissal by a foreman who was terminated by the defendant for sleeping on the job and lieing about it when he was confronted. The defendant had placed a hidden camera in the foreman's lunchroom. Counsel for the plaintiff protested the admissibility of the video evidence. Kirkpatrick J. summarized Counsel's arguments at [paragraph] 40, Richardson, supra:

Counsel for Mr. Richardson argued that the taping of Mr. Richardson's activities in the lunch room constituted a violation of his right to privacy under the Privacy Act, R.S.B.C. 1979, c. 336 and the video tape evidence was therefore precluded from admission into evidence. Counsel for Mr. Richardson asserted that the right to privacy must be weighed against the company's right to investigate. She argued that relevant considerations include the reasonableness of requesting surveillance, the reasonableness of the surveillance itself, and other alternatives open to the company to obtain the evidence it sought.

Kirkpatrick J. adopted the proposition stated in Anderson v. District of Maple Ridge (1992), 10 C.P.C. (3d) 258 at 264 (B.C.C.A.) "... that evidence which is relevant, and which is not excluded by any rule of evidence, is admissible." He held in Richardson, supra, at [paragraph] 44:

       In my view, if the video tape evidence is probative of a matter in issue, and is made in the context of the company's legitimate right to investigate Mr. Richardson's misconduct, then it ought to be admitted.

Kirkpatrick J. had viewed the videotapes during the course of the trial, and he stated at [paragraph] 45, supra:

... [A]although limited in its usefulness, the video tape does deal with matters which are material, relevant, and probative and which tend to aid, rather than confuse, mislead or prejudice the matters in issue: Quintal v. Datta, [1988] 6 W.W.R. 481 (Sask. C.A.).

Kirkpatrick J. concluded at [paragraphs] 48-50, supra:

       In respect of the issue of whether the video tapes were made in breach of Mr. Richardson's privacy, I conclude that there was no expectation of privacy on the part of Mr. Richardson in the circumstances. Furthermore, even if he had an expectation of privacy, a breach of privacy does not lead to exclusion of the evidence in this case. The Privacy Act merely provides the foundation for a claim in tort and does not prohibit the admission of evidence, even if it were gathered contrary to the Act.

       Mr. Richardson could not reasonably expect to have the protection or privacy when he was sleeping on company time, on company property, and in circumstances where he could be expected to be contacted if needed.

       The circumstances of this case are not dissimilar to those in Roy v. Saulnier (1992), 102 D.L.R. (4th) 234 (Que. C.A.), where the court held at p. 238:


... If, at this stage, it is suggested that the respondent was acting in bad faith and was working to the detriment of the appellant while she was supposedly working for him, it seems to me that it is the refusal to allow the production of the cassette that would bring the administration of justice into disrepute.

 38      No issue is taken with Kirkpatrick J.'s statement of the law, noting that at [paragraph] 44 of Richardson, supra, the videotape would have had to have been "made in the context of the company's legitimate right to investigate". However, Kirkpatrick J. went on to find that the plaintiff could have no reasonable expectation of privacy if he was committing the infraction for which he had been terminated. The admissibility decision was substantially based upon findings of fact which pertained to the merits of the case, and which were dependent upon a viewing of the videotape, when the admissibility of the videotape was in question. This appears to have amounted to ex post facto justification for the surreptitious video surveillance. The decision on admissibility appears to have been based, at least in part, on the decision on the merits. These are separate matters.

 39      Were surreptitious video evidence admissible in any case where it had probative value, and regardless of "the company's legitimate right to investigate", then the circumstances at the time that the decision was taken would be irrelevant, and could effectively be ignored. An employer might institute surreptitious video surveillance at its pleasure; just to see what turned up. The law does not contemplate such discretion in the hands of employers; not in British Columbia nor in other jurisdictions in Canada: e.g. Re The Calgary Herald -and- Graphic Communications Union, Local 34M (2004), 126 L.A.C (4th) 386 (Tettensor, Landry, Thompson); Re Toronto Transit Commission -and- Amalgamated Transit Union (1997), 61 L.A.C (4th) 218 (Saltman); Re Brewers Retail Inc. -and- United Brewers' Warehousing Workers' Provincial Board (1999), 78 L.A.C. (4th) 394 (Herman); Ross v. Rosedale Transport Ltd., [2003] C.L.A.D. No. 237 (Brunner), and the there-cited Re Canadian Pacific Ltd. -and- Brotherhood of Maintenance of Way Employees (1997), 59 L.A.C. (4th) 111 (Picher).

 40      The arbitral discussion of employer surveillance of employees, and particularly of surreptitious video surveillance, is ultimately concerned with the nature of the employment contract, and what is reasonable in that context. The workplace is not a democracy; the employer has "management rights" with respect to the control and operation of its enterprise. However, video surveillance is not itself a management right, but rather a tool in the exercise of management rights for the supervision of employees or of the physical environment. Here we have surreptitious video surveillance, of employees. Although privacy rights have been stated not to be absolute, no judge, arbitrator, or adjudicator - to my knowledge - has stated that employers have an absolute right to engage in video surveillance, let alone surreptitious video surveillance.

 41      So how vulnerable should employees in this country be to surreptitious surveillance by their employer? The question concerns all employees. It transcends the divide between the bargaining unit and management. It of course also concerns all employers confronted with circumstances suggesting a need for this option. Hence, the balancing of competing interests and the reasonableness assessments expressed in the authorities, and in legislation. While the surreptitious video surveillance in Doman Forest Products, supra, and Steels Industrial Products, supra, was conducted away from the workplace, it was still based on the employment relationship. The following passage is noted from Steels Industrial Products, supra, at p. 274:

As a general principle, I would not think that a private citizen - specifically here an employer - should have greater freedom or authority to monitor another private citizen than does the state, even if the private citizen is one's employee. I appreciate that the law has not developed in the area of private surveillance to the degree that state surveillance is monitored. This is evident in the British Columbia Privacy Act, R.S.B.C. 1979, c. 336, referred to later. But still, even within that context, I would think that great circumspection is called for when an employer seeks to electronically monitor the activity of an employee off the job - albeit during otherwise working hours. The employer-employee relationship is based on an employment contract and the videotaping of an employee clearly is at the extreme of the employer's authority under such a contract.

 42      Pursuant to the PIPA, all persons in British Columbia, including of course all employees in British Columbia, have an expectation of privacy and an entitlement to privacy, albeit not an expectation or an entitlement which is absolute. It is clear though that an infringement on privacy, done without the consent of the individual, is governed by a standard of reasonableness. Furthermore, the arbitral background in this province provides in effect a reasonable cause requirement to justify surveillance. Were surveillance evidence admissible whenever it had probative value, or to express it differently, were surveillance evidence admissible because it had probative value, the PIPA would have no meaning or purpose at the workplace, and the required reasonable cause justification would be nullified. It is the circumstances preceding and at the time the decision was taken which pertain to the application of the PIPA, and to the question of reasonable cause to initiate surveillance. The contents of the videotape may confirm that the earlier decision to conduct surveillance was well-founded, but the contents did not exist at the time the decision was taken, and therefore cannot establish the reasonableness of the decision. The contents are relative to the merits, which must be determined on the basis of the properly admitted evidence.

 43      In this regard the following passage by Arbitrator Brunner in Rosedale Transport, supra, at [paragraph] 35, is noted:

This is a case, where an employer, without any evidence that the employee was malingering or had made misrepresentations or spread disinformation as to his physical abilities, orders a surreptitious video surveillance in the hope of trapping the unsuspecting employee during the course of moving furniture at his place of residence at a time and place that he had voluntarily disclosed to his employer. In this respect, the words of Arbitrator M.G. Picher in Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees, (supra) [(1977), 59 L.A.C. (4th) 111 at p. 124], are very appropriate:


'as a general rule, (the employer's interests) does not justify resort to random video surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it. What constitutes such cause is a matter to be determined on the facts of each case'. (sic)


       In my opinion, this exactly what Topping attempted to do, namely, to cast an electronic web to see whether he could catch Ross while moving his family on April 6, 2002. In my view, the collection of this personal information in the form of the video surveillance tape was not reasonable for any purpose related to the investigation of a breach of the employment agreement. Its collection without the knowledge and consent of Ross violated Section 7(1)(b) of the Act [PIPEDA, supra]. It was for these reasons that I ruled on the first day of the hearings that the videotape was not admissible in evidence.

 44      It is noted that Kirkpatrick J. did express some concern with the very matter of surreptitious surveillance at the workplace, stating in Richardson, supra, at [paragraph] 54:

       Notwithstanding my conclusions as to the admissibility of the video tape evidence, I do wish to express my regret that Davis Wire made the choice to install the surveillance equipment in order to catch Mr. Richardson in the act of sleeping on the job. In my opinion, the surveillance of an employee in hopes of catching him or her engaging in a type of wrongdoing that, while foolish and irresponsible, would not justify summary dismissal, is itself a practice which jeopardizes the relationship of trust and confidence that is so crucial to the employer/employee relationship. It is unfortunate that Davis Wire did not attempt to solve this problem by honestly confronting Mr. Richardson once it became suspicious, and making it clear to him that sleeping on the job would not be tolerated.

 45      The present case, unlike Richardson, supra, is concerned with an employment relationship governed by a collective agreement and the B.C. Labour Relations Code, R.S.B.C. 1996, c. 244. The following provisions are noted:

Part 8
ARBITRATION PROCEDURES

Purpose of Part
Sec. 82.  (1) It is the purpose of this Part to
constitute methods and procedures for determining
grievances and resolving disputes under the provisions
of a collective agreement without resort to stoppages of
work.

       (2)  An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute.

Dismissal or arbitration provision Sec. 84.  (1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee. ...

Authority of arbitration board
Sec. 89.  For the purposes set out in section 82, an
arbitration board has the authority necessary to provide
a final and conclusive settlement of a dispute arising
under a collective agreement, and without limitation,
may

...


(g)

interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement. ...


Powers of arbitration board
Sec. 92. (1)  An arbitration board may

(a)

determine its own procedure,

(b)

receive and accept evidence and information on oath, affidavit or otherwise as in its discretion it considers proper, whether or not the evidence is admissible in a court of law,

(c)

determine prehearing matters and issue prehearing orders ....

The Labour Relations Code is silent with respect to surreptitious video surveillance, and it does permit broad arbitral discretion in the admission of evidence. Nevertheless, it would seem contrary to the spirit of the Code to permit employers to surreptitiously videotape their employees without reasonable cause to initiate such surveillance. Furthermore the jurisdiction to "interpret and apply" legislation regulating the employment relationship, and the power to receive evidence "whether or not the evidence is admissible in a court of law" does not place an arbitrator above the law. An arbitrator cannot ignore the PIPA. An arbitrator must uphold the PIPA insofar as it would apply to the employment relationship.

 46      In X v. Y (Z Grievance), [2002] B.C.C.A.A.A. No. 292 (Taylor), Arbitrator Taylor declined to rule on the admissibility issue until he had viewed the videotape, at [paragraph] 10:

In considering the preliminary motion to exclude the evidence obtained by surveillance, including videotapes, I concluded that I could not determine whether the Grievor's right to privacy had been breached without receiving all of the evidence, including the electronic evidence. I observe that this is in keeping with the accepted authorities: Re Doman Forest Products Ltd., New Westminster Division and International Woodworkers, Local 1-357, (1990) 13 L.A.C. (4th)275 (Vickers).

 47      In City of Vancouver -and- Canadian Union of Public Employees, Local 15, [2003] B.C.D.L.A. 500 (Sullivan), Arbitrator Sullivan noted at [paragraph] 4:

       Video tape evidence was proffered during the course of testimony by the Employer's first witness, Private Investigator Bill Wellman, who conducted surveillance of the grievor on January 26 and 30, and February 1 and 2, 2002. At the time the video tape evidence was tendered the Union objected to its admissibility. Following established arbitral practice I allowed the evidence to be presented, subject to an ultimate ruling on its admissibility. The parties subsequently filed written submissions on the issue.

 48      Similarly in Marmon/Keystone v. The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Shopmen's Local Union No. 712 (Devlin Grievance), [2002] B.C.C.A.A.A. No. 8 (Foley), Re Greater Vancouver Regional District -and- Greater Vancouver Regional District Employees' Union (1996), 57 L.A.C. (4th) 113 (McPhillips), and, British Columbia Maritime Employers Assn. -and- International Longshore and Warehouse Union, Local 500 (Iannattone Grievance), [2002] C.L.A.D. No. 310 (Munroe), the videotape was viewed by the arbitrator prior to deciding admissibility. In B.C. Maritime Employers, supra, the parties agreed to such a procedure, however Arbitrator Munroe noted that the viewing was related in particular to the question of whether the surveillance was conducted in a reasonable manner, at [paragraph] 4:

Was it reasonable, in all the circumstances, for the employer to initiate the surveillance (this includes a consideration of the availability of other less-intrusive means by which the same information likely could have been obtained)? If so, was the surveillance itself conducted in a reasonable manner? Particularly given the need to answer that second question, the norm is to hear evidence concerning the video surveillance, and to view the video tapes, on a voir dire or conditional-admissibility basis; and to make the decision as to admissibility as part of the final decision in the case. See Doman Forest Products Ltd. (1990) 13 L.A.C. 4th) 275 (Vickers); Greater Vancouver Regional District (1996) 57 L.A.C. (4th) 113 (McPhillips); and St. Mary's Hospital (1997) 64 L.A.C. (4th) 382 (Larson). By agreement between the parties, that was the procedure followed in the present case.

Indeed, Arbitrator Sanderson had expressed the same rationale in Canada Safeway Ltd. -and- United Food and Commercial Workers International Union, Local 2000 (Falbo Grievance), [1997] B.C.C.A.A.A. No. 708 (Sanderson) at [paragraph] 18:

       In a sense, the two questions to be asked are inextricably linked. I share the uneasiness of the other arbitrators referred to in the preceding paragraph as to the propriety of declaring the evidence inadmissible without first looking at it and examining it closely, particularly on the issue of whether the surveillance was conducted in a reasonable manner. I do not think it is practical to attempt to address that question without looking at the videotape itself. It was for that reason that I decided at the initial hearing to view the tape so that I could consider objectively the precise way in which the surveillance of the grievor was conducted.

In Re Centenary Health Centre -and- Canadian Union of Operating Engineers and General Workers (1999), 77 L.A.C. (4th) 436 (Albertyn, McDonald, Appleton), the arbitration board at p. 448 ruled that as a matter of practical procedure the videotape would be viewed in the ordinary course, and its admissibility would be considered at the conclusion of the hearing:

Our requiring that evidence to be presented in the ordinary course (as the parties themselves choose to present their evidence), subject to the union's right to challenge the admissibility of the challenged evidence at the conclusion of all of the evidence, does not entail any duplication of the evidence. In our view, the hearing will proceed more expeditiously.

Indeed this approach was also advocated by Vice-Chair Plypchuk in Vision Packaging -and- Communications, Energy and Paperworkers Union of Canada, Local Union No. 433, BCLRB Decision No. B309/2001: July 31, 2001 at pp. 10-11:

       Finally, before I address the disposition of this case, I turn to the issue of proper procedure in handling the admissibility of the surveillance evidence. This hearing was bifurcated for the purpose of dealing with the issue of whether there were reasonable grounds for surveillance to be initiated. However, I have now concluded that is not an effective means of addressing the problem. The better approach is that used by Arbitrator McPhillips in GVRD, supra, where he heard the evidence but reserved on admissibility until the final argument. That is the same approach adopted by Arbitrator Vickers in Doman, supra, and enables the adjudicator to consider the issue of admissibility in all of the circumstances and then to properly balance the parties' interests. Given the added complication of the reverse onus provision which accompanies an allegation of an unfair labour practice, this approach would allow the Board to efficiently and fairly assess whether the surveillance evidence should be admitted for all purposes or for a limited purpose.

As a general rule, this arbitrator would agree.

 49      The arbitration process is intended to be efficient, although the modern practice is sometimes otherwise. The parties should trust an adjudicator, arbitrator, or judge to view the videotape without being unduly influenced on the admissibility issue, although in Richardson, supra, undue influence may have been taken. This general approach, i.e. look-and-decide-later, makes practical sense in the interest of moving the arbitration hearing along. However, the real concern this arbitrator has with it is that it is undisciplined at law.

 50      A look-and-decide-later approach is often forgivable as a trade-off to achieve efficiency; and, further, an arbitrator pursuant to Section 92(1)(b) of the B.C. Labour Relations Code is empowered to admit evidence that would not be admitted in a court of law. The parties themselves will often consent to the viewing of the videotape and reserve argument on admissibility until later, as was evident in some of the case cited. However, the decision on admissibility is independent from the decision on the merits, and therefore attention must be given to the circumstances at the time the decision to surreptitiously videotape was taken. The later contents of the videotape may confirm that the employer's earlier suspicion was well-founded, but the contents would not establish reasonable cause at the time the decision was taken. The contents of the videotape may only be relevant to the question of whether the manner of videotaping was reasonable. This has more to do with technicalities or circumstances insofar as matters of authenticity, timing, clarity, location, or alleged egregious conduct on the part of the person undertaking the video surveillance.

 51      On day-one of the arbitration hearing, I advised Counsel that I would not view the videotapes prior to deciding on their admissibility. This was not a decision of the evidentiary issue, and certainly not a decision on the merits of the case. The contents of the videotapes were not a mystery; they were purported to show the Grievors engaged in serious malingering on the job after everyone else had left the worksite. Counsel did not disagree that a viewing of the videotapes would take hours. They did disagree over whether I should view the videotapes. Counsel for the Union did not object to the videotapes in terms of the manner of videotaping; his objection was on the first and fundamental question whether the Company had reasonable cause to engage in surreptitious video surveillance. This was not a compelling case for overruling the Union's objection to a viewing based on expediency - particularly considering that privacy rights were in issue. The videotapes concerned the merits of the case, and could be potentially prejudicial regarding the admissibility issue. I do not take from the authorities that there is a presumption at law in favour of look-now-and-decide-later. It depends on the circumstances, and, in the circumstances of this case a viewing was not yet required.

 52      The Company now wishes to enter the videotapes, and the Union submits they are inadmissible. There is only one question to be considered: did the Company have reasonable cause to conduct surreptitious video surveillance of the Grievors. Reasonable cause is not subjective. An objective test applies. It applies to the decision, at the time the decision was made. Although the Union took the initiative in challenging the admission of the videotapes, the onus is on the Company which would now have the evidence entered. This is not an onus on the law, but an onus on the facts; i.e. that the facts establish reasonable cause. The Company must demonstrate: that the circumstances presented a strong foundation for its suspicion, and that other options were unrealistic or unreasonable.

 53      On May 10, 2004, the Company was spurred to secretly videotape Messrs. Zaydan and Hobuti, because Mr. Hobuti was seen polishing EF3 doors according to the old way, which Mr. G. Eppich was unaware had been re-instituted some two years before. The Company understood that the maximum it was possible to polish per man per shift was 30. The Company had failed to closely examine the "Polishing Daily Productivity" sheets. The Company did not collect the information at its disposal and enter into constructive discussion with its polishers. The Company did not monitor the polishers at their work, or consider having someone in management simply stay late. The Company suspected that something was going on because it seemed impossible that if 30 doors could be polished, then why not 31? The Company did not monitor all the polishers but selectively monitored the afternoon shift, namely Messrs. Zaydan and Hobuti. The Company has not established that the surreptitious video surveillance was, in the words of Section 12 of the PIPA, "reasonable for an investigation", or in the words of Section 13(2)(b) of the PIPA, "reasonable for the purposes of ... managing or terminating an employment relationship".

 54      In Steels Industrial Products, supra, the grievor had so destroyed his credibility by the time the employer decided to undertake surreptitious video surveillance, that the employer was effectively left with no reasonable alternative. In X v. Y, supra, the union argued that the employer had to exhaust all other alternatives. Arbitrator Taylor rejected that proposition, while maintaining that alternatives which were reasonable should be considered. He stated at [paragraph] 42 of X v. Y, supra:

I reject the Union's submission that the Employer must establish that it exhausted all other alternatives before resorting to surveillance and, to the extent that is a proposition founded upon certain authorities, I respectfully disagree with those authorities. An employer should not be required to exhaust all other alternatives without regard to their reasonableness. That is the test.

In Extra Foods v. United Food & Commercial Workers International Union Local 1518 (Duhamel Grievance), [2002] B.C.C.A.A.A. No. 377 (Glass), Arbitrator Glass stated at [paragraph] 30:

I do not agree with the view of Arbitrator Larson in St. Mary's Hospital (supra) that all possible steps should be taken to deter a thief, before it can be considered reasonable to try and catch a thief by the use of surveillance. The goal or purpose of the employer to attempt to catch a meat thief was in my view a reasonable goal in the circumstances.

In defense of Arbitrator Larson, he stated in St. Mary's Hospital, supra, at p. 399, that the employer "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". Arbitrator Larson did not abandon the notion of reasonableness. Indeed he considered it in relation to a carefully considered hierarchy of privacy concerns. Just as Arbitrator Glass was concerned with reasonableness in Extra Foods, supra, so was Arbitrator Larson in St. Mary's Hospital, supra, and so was Arbitrator Munroe in British Columbia Maritime Employers Assn., supra, where he stated at [paragraph] 4 that the reasonableness test "includes a consideration of the availability of other less-intrusive means by which the same information likely could have been obtained".

 55      In applying the reasonableness test, Arbitrator Munroe stated at [paragraph] 20 of British Columbia Maritime Employers Assn., supra:

I would observe, too, that direct confrontation cannot reasonably be required as an alternative to more covert investigative means where the core issue, demonstrably, is the integrity of the person who would be the one confronted.

 56      The PIPA speaks peripherally to alternatives in Sections 12(1)(c) and 13(2)(b):

Collection of personal information without consent


12(1)

An organization may collect personal information about an individual without consent or from a source other than the individual, if ...


(c)

it is reasonable to expect that the collection with the consent of the individual would compromise the availability or the accuracy of the personal information and the collection is reasonable for an investigation or a proceeding, ...


Collection of employee personal information


13(2)  An organization may not collect employee personal
information without the consent of the individual unless

...


(b)

the collection is reasonable for the purposes of establishing, managing or terminating an employment relationship between the organization and the individual.

There is no express requirement that reasonable and less intrusive alternatives be exhausted. It is my understanding that there is one fundamental requirement; i.e. that the surreptitious video surveillance be reasonable in the circumstances. In other words, given the circumstances, was this clandestine and intrusive form of supervisory surveillance reasonably warranted? The question is pragmatic, and therefore it is inescapably inclusive. One of the considerations in testing reasonableness must still be the sensible presence of other less-intrusive means. The PIPA does not "[alter] the substance of the issue in cases of this kind."; Pope and Talbot, supra, at [paragraph] 29.

 57      The Company's position is that this is a case of theft of time, and since it is an integrity issue, it was under no obligation to confront the grievors. The circumstances on May 10, 2004, at the time that surreptitious video surveillance was undertaken, have been described above, and the circumstances were not so egregious that other options were not reasonably available. The Company simply did not have reasonable cause. It undertook surreptitious video surveillance in contravention of the PIPA, particularly Section 13(2).

 58      In Richardson, supra, Kirkpatrick J. held at [paragraph] 48:

The Privacy Act merely provides the foundation for a claim in tort and does not prohibit the admission of evidence, even if gathered contrary to the Act.

I do not agree, and I would not so dismiss the present PIPA. This arbitration is brought under the Labour Relations Code of British Columbia where Section 89(g) empowers an arbitrator to "interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement". The PIPA is clearly intended to apply to the employment relationship. The authority of the legislation would not be given effect were an employer to breach its provisions and be permitted to rely on the unlawfully obtained evidence anyway. For an arbitrator in British Columbia to admit the evidence in such a case would amount to error of law and abdication of jurisdiction.

 59      It was argued in the alternative that the videotaping from and after June 10, 2004 should be admitted. Mr. G. Eppich believed that eighty P90 doors could be polished in an 8-hour shift; he had instructed Mr. Zaydan to do seventy; Mr. Zaydan had only attempted to do sixty; and, these had not been completed. On June 9, when Mr. Zaydan started on the sixty P90 doors, he initially wrote "70" on the "Polishing Daily Productivity" sheet, which was the number he had been instructed to polish. June 9 was not a full 8-hour shift because Mr. Zaydan spoke separately to Messrs G. Eppich and Arduini prior to commencing the work. Mr. G. Eppich had estimated that eighty P90 doors could be done in an eight hour shift, considering an inefficiency factor for set-ups, coffee and washroom breaks etc. Mr. G. Eppich was upset that sixty doors were started and only 90% finished. He was particularly suspicious that Mr. Zaydan had written "70" on the "Polishing Daily Productivity" sheet, and scratched that out and wrote "60". Mr. Arduini respected Mr. Zaydan as a skilled man, and when Mr. Zaydan told him he could only do sixty, Mr. Arduini accepted that and told him he should write down "60", and not "70". Even considering that Mr. Kumar was a new man, it still took him two hours, one-quarter of a shift, to complete the sixty doors which Mr. G. Eppich considered had been 90% completed. Mr. Arduini had been the one whose work was timed by Mr. G. Eppich in the time study, and he gave no indication that he had been surprised, nor was he suspicious of Mr. Zaydan.

 60      On June 10, 2004 Mr. G. Eppich was upset with Mr. Zaydan, and was suspicious of him. Given his perception at the time, his suspicion was understandable. However, it is not a subjective standard which applies. Were it so, the measure of protection provided by the PIPA would depend to some degree on the character of the individual who would conduct the surveillance. Considering the circumstances described above; and, noting also that Mr. Zaydan would have started the sixty doors in the very early afternoon of January 9, 2004 when the dayshift was still present, and also Messrs. Arduini, Wolokoff, and G. Eppich; and, that it would have been no secret that it was sixty doors he was starting had anyone checked before going home to see how the work was going, I am not satisfied that Mr. G. Eppich's suspicion was justified. It would seem extreme and unreasonable for the Company to take an investigation directly to the stage of surreptitious video surveillance. The videotapes from and after June 10, 2004 are also inadmissible.

 61      Finally, Counsel for the Company was unequivocal on the importance of the videotape evidence to the Company's case. He submitted, on behalf of his client, that a refusal to admit the evidence would be "untenable" and would "bring the arbitration process into disrepute." Such a reaction on the part of his client would be understandable given its firm conviction that the grievors were caught malingering, were dishonest, and were deserving of discharge. Therefore I will take a moment to respond.

 62      A ruling on the admissibility of certain evidence is not a ruling on the merits of a case, although its effect may be determinative of the outcome. In the present case it was concluded that in acquiring the videotape evidence, the Company had breached particularly Section 13(2) of the PIPA. The Company will surely be disappointed, and may well disagree. However, once such a conclusion has been made, the legislation cannot be ignored. It cannot be ignored to the Company's favour. Arbitral discretion with respect to evidentiary matters, as granted by the Labour Relations Code, is not a green light to condone a party's unreasonable surreptitious video surveillance, in breach of the law. In enabling a party to present its case, an arbitrator has no higher duty to one than to the other. Were it otherwise, that would bring the arbitration process into disrepute.

QL UPDATE:  20041222
qp/e/qlscw