The Vigi Santé ltée decision: The Court of Appeal weighs in

The presence of video cameras in the workplace, as well as other measures of surveillance put in place by employers, have generated considerable commentary in recent years in Quebec. Administrative and civil tribunals are increasingly called upon to rule on the legality of these measures which are increasingly accessible to employers, as well as to assess their probative value in the context of the administration of evidence.

Challenges in this regard, carried out jointly by employees subject to such measures and unions, where appropriate, are primarily based on the employees' right to respect for their private life and their right to just and reasonable working conditions, which are protected by the Charter of Human Rights and Freedom[1] at sections 5 and 46 respectively.

It is recognized that the possibility of installing cameras in the workplace is generally not assessed from the point of view of the right to privacy of employees as their expectation of privacy is normally reduced in the workplace.[2] There could not be an infringement of the right to privacy if, from the outset, employees cannot justify an expectation of privacy.

It is therefore from the point of view of the right of employees to just and reasonable working conditions that this issue is mainly dealt with by the courts. In this regard, it is recognized that the installation of cameras in the workplace does not contravene section 46 of the Charter when the cameras are used in a reasonable manner. This reasonableness is assessed on the basis of a number of criteria outlined and largely uniformly accepted by the courts having already ruled in this respect.[3]

Many landmark decisions have been rendered with respect to the presence of surveillance measures put in place by employers, including the recent Supreme Court decision of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,[4] which concerns the possibility for an employer to establish a random drug screening system for its employees, as well as the decision of the Court of Appeal in Syndicat des travailleurs(euses) de Bridgestone Firestone de Joliette (CSN) v. Trudeau,[5] in relation to the surveillance of employees outside the workplace.

Nevertheless, no so-called "landmark decision" had hitherto been rendered with respect to the presence of cameras in the workplace prior to the Court of Appeal's recent and highly anticipated decision of Vigi Santé[6].

In Vigi Santé, the Court of Appeal was called upon to determine the validity of the installation of surveillance cameras in the workplace in a very particular context: the installation of a video camera in the room of a resident of a long term care facility for the elderly (known as a CHSLD in Quebec) by the family of that resident. The images filmed by this camera, which was continuously rolling, were directly sent to the resident's family without the employer's access or control. The employer had allowed the camera to be installed by the family.

Thus, the first issue taken up by the Court was: can the employer permit the installation of a camera by the family of a resident in the room of the resident for the sole purpose of the family members seeing the resident?

The Court of Appeal, in answering the question in the affirmative, first analyzed the standard of review applicable to the situation, since the employer in its original application for judicial review argued that it was the standard of correctness that should apply. In accordance with the strong majority case law in this regard, the Court of Appeal confirmed that the standard of reasonableness applies with respect to questions such as the one at hand.

The Court of Appeal then emphasized that the employer did not surveille its employees by allowing the resident's family to install a camera and that the grievance arbitrator did not, at the initial stage, have to determine whether the employer had grounds for such surveillance. To this end, the Court of Appeal recalled that the right to just and reasonable conditions of work protected by the Charter is not intended to prohibit the presence of any camera or other workplace mechanism that has the potential to capture images and/or sounds.

Based on this assertion, the Court of Appeal compared the installation of a camera in a resident's room with the installation of cameras that continuously film in workplaces in order to prevent or reduce crimes, particularly in the context of theft and vandalism in stores that are susceptible to such acts. In making this comparison, the Court of Appeal confirmed the validity of the presence of cameras under such circumstances and reiterated that an employer may use cameras for an otherwise legitimate purpose not related to the surveillance of its employees.

The Court of Appeal thus confirmed the right of employers to surveille their workplaces where this surveillance is not intended to directly monitor employees in the course of their work. Workplace monitoring is permitted for a legitimate reason distinct from employee surveillance, even if it has the effect of filming employees in the course of their work.

Moreover, the Court stated that the resident's room corresponds, to a degree, to his or her domicile and as such they must, under the Charter, enjoy the same rights and protections as any other person, without a value judgment on the installation of a continuously-filming camera to be made by decision makers. They conclude as follows:

[COURTESY TRANSLATION]

"[41] With respect, a fundamental distinction must be made between the supervision of employees, via a camera or any other means, and the relationship that a family wishes to maintain with its family member who lives permanently in a residence of the type operated by the appellant. By confusing the two situations, the arbitrator makes an unreasonable error that vitiates the rest of the syllogism on which his or her decision is based."

In light of the above, and in spite of the particular context in which the debate is held, certain key principles are laid down by the Court of Appeal that will be relevant in a context other than that of a residence for vulnerable persons, notably the importance of the objective pursued by the employer. However, the Court remains silent on other aspects, including the potential consequences of the employer's use of images captured in the event of wrongdoing by employees.

That being said, as a final note we point out that the dissent of the Honorable Lorne Giroux will likely be taken up again and cited in the context of decisions concerning the setting up of surveillance cameras by the employer... To be continued!