WHAT IS REASONABLE IN THE INVESTIGATIVE PROCESS AND HOW IS THIS DECIDED? AN ARBITRATOR DECIDES EMPLOYER POSSESSED REASONABLE GROUNDS FOR THE COLLECTION OF VIDEOTAPE EVIDENCE.
This article was first posted in 2011. It was written in 2009.
Following a preliminary motion, an Ontario Arbitrator decided that persistent video surveillance by Greater Essex County District School Board of their aggrieved employee, Mr.Postma, should be admitted as evidence. It was held that the evidence was not only reasonable but relevant to the central issue in dispute before the arbitrator; that being the just cause to terminate Mr. Postma’s employment.
The Facts: On May 26th, 2004, Mr. Postma sustained an injury at work. There were no witnesses to the injury or the surrounding circumstances. Different descriptions of the occurrence were provided by Mr. Postma. On the same day, May 26th, Mr. Postma received a note from a doctor at the Lasalle Medical Clinic stating that “ Pt is unfit for work for 1-2 week from the above date, and will return for a follow up appointment.” The principal at the school where Mr. Postma worked as a janitor filed a WSIB claim on Mr. Postma's behalf. On or about May 31st, 2004 the employer, Greater Essex County District School Board, commenced video surveillance of Mr. Postma. The surveillance was conducted by a private firm. The first phase of surveillance was concluded on June 8th 2004. The second phase of surveillance commenced on July 5th, 2004 and concluded on July 22nd. Mr. Postma returned to work on July 15th, 2004 and a meeting was held on July 23rd, 2004 with the Canadian Union of Public Employees and management to discuss the matter. Mr. Postma’s employment was terminated following the conclusion of the meetings. The videotape surveillance demonstrated, contrary to Mr. Postma’s assertion, that he was able to drive his vehicle and that he was engaged in activities outside of the home at times when he had failed to report to work. A letter from the school board dated July 26th, 2004 addressed to Mr. Postma indicated that he was being dismissed for sick leave fraud. On August 6th, 2004 a grievance was filed by The Canadian Union of Public Employees, challenging Mr. Postma’s suspension and his termination. A preliminary motion to prevent the admission of the Essex County School board’s video surveillance was filed with the arbitrator.
Arguments: The union argued that the video surveillance evidence should be excluded on the basis that it was unreasonable for the employer to initiate any videotape surveillance on May 31st, 2004. Secondly, it was unreasonable for the employer to have continued videotape surveillance after the grievor returned to work on July 15th, 2004. It was argued that not only the videotape surveillance evidence but all related vive voce evidence should be excluded from the case.
The Employer argued that videotape evidence is always admissible if it is probative and relevant to a material issue and satisfies the admissibility criterion of best evidence. The employer further argued that they should not be required to demonstrate that it was reasonable to commence with videotape surveillance as “Relevance” is the correct arbitral criterion for the admission of evidence.
The Decision: Arbitrator Hunter reviewed two lines of cases. The first line of cases suggests that “Reasonableness” is a criterion used to decide whether evidence should be admitted before an arbitrator. In Re Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (1997), 61 L.A.C. (4th) 218 (Saltman), it was held that the employer must be able to prove to an arbitrator’s satisfaction that it was reasonable to engage in electronic surveillance and that the surveillance was conducted in a reasonable manner. Arbitrator Hunter discussed this issue at length and concluded that while there is some federal legislation such as the Personal Information Protection and Electronic Documents Act (P.I.P.E.D.A.) S.C. 2000, c. 5. which asserts a right to privacy, it is not enforceable through arbitration. Hunter also analysed civil law cases from the Ontario Court, General Division and concluded that a common law right to privacy, in his opinion, is not necessarily recognised by the courts in those decisions. He concludes that it is ultimately the arbitrator, ex- post-facto, and not the employer who decides when video surveillance is warranted, what is reasonable and when. Next, Hunter analyses the arbitration cases that suggest “Relevance” is the primary factor in determining admissibility. He concludes that employees do not have an express statutory right nor a clear common law right to privacy that shields their activities in public places from employer video recording and observation. The test for admissibility is "relevance" to a material issue in dispute. In Mr. Postma’s case, the material issue, is whether the employer had just cause to dismiss the employee. “Reasonableness” is not excluded from the process but is used to determine the weight of evidence. If it was unreasonable to commence surveillance, then the surveillance is credited with less weight. “Reasonableness”, therefore, is not a threshold criterion, according to Hunter, for the admission or exclusion of evidence but a criterion to decide its weight.
Comment: Since S.48 (12)(f) of the Ontario Labour Relations Act 1995 entitles an arbitrator to accept any evidence they deem appropriate. It matters not whether the evidence in question will be acceptable in a court of law. Clearly, the arbitrator decides what evidence is appropriate. The arbitrator does not have to have any rationale to support his decision. This is the inherent nature of the arbitrator’s regime.
Legal Tensions
The arbitration process is subject to the same rules of natural justice as a tribunal or any court which requires that the process be fair, just and reasonable. This is confirmed in the administrative law case Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R 817at paras. 21-27 where it was held that the extent of the procedural rights encompassed in the duty of fairness depends on the content of the particular statute or regulation and on the nature of the rights affected. The various criterion to be considered in determining the content of the duty of procedural fairness include among others:
(a) The nature of the decision being made and the process followed in making it;
(b) The importance of the decision to the individual affected; and
(c) The legitimate expectations of the person challenging the decision.
With this being the case, it is of great curiosity that there isn’t a more definitive set of rules to govern the entrance of evidence into the arbitration process or rules of precedent such as Stare Decisis; a process by which previous decisions or case reasoning is followed.
Privacy
In Re Pope & Talbot Ltd. and Pulp, Paper and Woodworkers of Canada, Local 8 (2003) 123 LAC 4th 115 (D.R. Munroe), Arbitrator Munroe commented as follows: "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 of the employment relationship; and further, that while the Canadian Charter or 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…”. Arbitrator Munroe’s position is supported by the fact that public employees and employers are bound by the Charter according to s.32(1).
The Essex County School Board is a government employer as it is managed by the provincial government’s ministry of education. Mr. Postma had a legitimate right to privacy under the charter as a public employee.
Privacy and Civil Courts
An employee’s privacy rights require protection to the same extent as an employers business interests. In all fairness, a balancing of interests must take place in the legal process as well as in arbitration. In the case of Somwar v Mcdonald’s Restaurants of Canada Ltd., 2006 79 O.R. (3d) 172, the common law tort of the invasion of privacy was recognised and carefully discussed at length. The complaint in that case concerned the conduct of a credit bureau check on an employee by his employer, without the employee’s consent. This complaint falls within the first category of the invasion of privacy, i.e. intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. Contrary to Hunter’s assertion, the employee, Mr. Postma, had a legitimate expectation of privacy outside of the work environment which could be upheld under the charter or within the civil courts.
David and Goliath
The reasoning in the Postma case gives employers the false sense of an upper hand with respect to the balancing of legitimate employee privacy interests and an employer's business interests. Postma suggests that once evidence is created, it should be presented to the arbitrator on grounds of relevance in spite of an employee’s legitimate privacy interests. Fortunately for employees filing a grievance, the Postma case does not necessarily bind the decisions of other arbitrators.
-Angel Ronan Consultancy-(registered business name since 2004).
This article was first posted in 2011. It was written in 2009.
Following a preliminary motion, an Ontario Arbitrator decided that persistent video surveillance by Greater Essex County District School Board of their aggrieved employee, Mr.Postma, should be admitted as evidence. It was held that the evidence was not only reasonable but relevant to the central issue in dispute before the arbitrator; that being the just cause to terminate Mr. Postma’s employment.
The Facts: On May 26th, 2004, Mr. Postma sustained an injury at work. There were no witnesses to the injury or the surrounding circumstances. Different descriptions of the occurrence were provided by Mr. Postma. On the same day, May 26th, Mr. Postma received a note from a doctor at the Lasalle Medical Clinic stating that “ Pt is unfit for work for 1-2 week from the above date, and will return for a follow up appointment.” The principal at the school where Mr. Postma worked as a janitor filed a WSIB claim on Mr. Postma's behalf. On or about May 31st, 2004 the employer, Greater Essex County District School Board, commenced video surveillance of Mr. Postma. The surveillance was conducted by a private firm. The first phase of surveillance was concluded on June 8th 2004. The second phase of surveillance commenced on July 5th, 2004 and concluded on July 22nd. Mr. Postma returned to work on July 15th, 2004 and a meeting was held on July 23rd, 2004 with the Canadian Union of Public Employees and management to discuss the matter. Mr. Postma’s employment was terminated following the conclusion of the meetings. The videotape surveillance demonstrated, contrary to Mr. Postma’s assertion, that he was able to drive his vehicle and that he was engaged in activities outside of the home at times when he had failed to report to work. A letter from the school board dated July 26th, 2004 addressed to Mr. Postma indicated that he was being dismissed for sick leave fraud. On August 6th, 2004 a grievance was filed by The Canadian Union of Public Employees, challenging Mr. Postma’s suspension and his termination. A preliminary motion to prevent the admission of the Essex County School board’s video surveillance was filed with the arbitrator.
Arguments: The union argued that the video surveillance evidence should be excluded on the basis that it was unreasonable for the employer to initiate any videotape surveillance on May 31st, 2004. Secondly, it was unreasonable for the employer to have continued videotape surveillance after the grievor returned to work on July 15th, 2004. It was argued that not only the videotape surveillance evidence but all related vive voce evidence should be excluded from the case.
The Employer argued that videotape evidence is always admissible if it is probative and relevant to a material issue and satisfies the admissibility criterion of best evidence. The employer further argued that they should not be required to demonstrate that it was reasonable to commence with videotape surveillance as “Relevance” is the correct arbitral criterion for the admission of evidence.
The Decision: Arbitrator Hunter reviewed two lines of cases. The first line of cases suggests that “Reasonableness” is a criterion used to decide whether evidence should be admitted before an arbitrator. In Re Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (1997), 61 L.A.C. (4th) 218 (Saltman), it was held that the employer must be able to prove to an arbitrator’s satisfaction that it was reasonable to engage in electronic surveillance and that the surveillance was conducted in a reasonable manner. Arbitrator Hunter discussed this issue at length and concluded that while there is some federal legislation such as the Personal Information Protection and Electronic Documents Act (P.I.P.E.D.A.) S.C. 2000, c. 5. which asserts a right to privacy, it is not enforceable through arbitration. Hunter also analysed civil law cases from the Ontario Court, General Division and concluded that a common law right to privacy, in his opinion, is not necessarily recognised by the courts in those decisions. He concludes that it is ultimately the arbitrator, ex- post-facto, and not the employer who decides when video surveillance is warranted, what is reasonable and when. Next, Hunter analyses the arbitration cases that suggest “Relevance” is the primary factor in determining admissibility. He concludes that employees do not have an express statutory right nor a clear common law right to privacy that shields their activities in public places from employer video recording and observation. The test for admissibility is "relevance" to a material issue in dispute. In Mr. Postma’s case, the material issue, is whether the employer had just cause to dismiss the employee. “Reasonableness” is not excluded from the process but is used to determine the weight of evidence. If it was unreasonable to commence surveillance, then the surveillance is credited with less weight. “Reasonableness”, therefore, is not a threshold criterion, according to Hunter, for the admission or exclusion of evidence but a criterion to decide its weight.
Comment: Since S.48 (12)(f) of the Ontario Labour Relations Act 1995 entitles an arbitrator to accept any evidence they deem appropriate. It matters not whether the evidence in question will be acceptable in a court of law. Clearly, the arbitrator decides what evidence is appropriate. The arbitrator does not have to have any rationale to support his decision. This is the inherent nature of the arbitrator’s regime.
Legal Tensions
The arbitration process is subject to the same rules of natural justice as a tribunal or any court which requires that the process be fair, just and reasonable. This is confirmed in the administrative law case Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R 817at paras. 21-27 where it was held that the extent of the procedural rights encompassed in the duty of fairness depends on the content of the particular statute or regulation and on the nature of the rights affected. The various criterion to be considered in determining the content of the duty of procedural fairness include among others:
(a) The nature of the decision being made and the process followed in making it;
(b) The importance of the decision to the individual affected; and
(c) The legitimate expectations of the person challenging the decision.
With this being the case, it is of great curiosity that there isn’t a more definitive set of rules to govern the entrance of evidence into the arbitration process or rules of precedent such as Stare Decisis; a process by which previous decisions or case reasoning is followed.
Privacy
In Re Pope & Talbot Ltd. and Pulp, Paper and Woodworkers of Canada, Local 8 (2003) 123 LAC 4th 115 (D.R. Munroe), Arbitrator Munroe commented as follows: "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 of the employment relationship; and further, that while the Canadian Charter or 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…”. Arbitrator Munroe’s position is supported by the fact that public employees and employers are bound by the Charter according to s.32(1).
The Essex County School Board is a government employer as it is managed by the provincial government’s ministry of education. Mr. Postma had a legitimate right to privacy under the charter as a public employee.
Privacy and Civil Courts
An employee’s privacy rights require protection to the same extent as an employers business interests. In all fairness, a balancing of interests must take place in the legal process as well as in arbitration. In the case of Somwar v Mcdonald’s Restaurants of Canada Ltd., 2006 79 O.R. (3d) 172, the common law tort of the invasion of privacy was recognised and carefully discussed at length. The complaint in that case concerned the conduct of a credit bureau check on an employee by his employer, without the employee’s consent. This complaint falls within the first category of the invasion of privacy, i.e. intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs. Contrary to Hunter’s assertion, the employee, Mr. Postma, had a legitimate expectation of privacy outside of the work environment which could be upheld under the charter or within the civil courts.
David and Goliath
The reasoning in the Postma case gives employers the false sense of an upper hand with respect to the balancing of legitimate employee privacy interests and an employer's business interests. Postma suggests that once evidence is created, it should be presented to the arbitrator on grounds of relevance in spite of an employee’s legitimate privacy interests. Fortunately for employees filing a grievance, the Postma case does not necessarily bind the decisions of other arbitrators.
-Angel Ronan Consultancy-(registered business name since 2004).
We are also a Labor Organisation and Labour Society in Canada since our inception and now in England and Wales promoting general, good Labour and Societal welfare through media, law and humanities research; organized and operated exclusively for civic improvement through effective law, social and economic government policy.
Written By: Warren Augustine Lyon, B.A.(Hons), LL.B(Hons), PGDL
info@angelronan.com
-October 29th 2009- (copyright)
Toronto, Canada
Read more: http://www.bukisa.com/articles/208941_employment-law-and-arbitration-in-canada-what-evidence-is-reasonable#ixzz0qL91Uw8t
Case Name: Canadian Union of Public Employees, Local 27 v. and Greater Essex County District School Board
Jurisdiction: Canada
Arbitrator: I.A. Hunter
Date: June 14th, 2006, 11 Pages
Citation: [2006] O.L.A.A. No. 355
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