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Federal Court Overturns Privacy Commissioners Finding in Video Surveillance Case
On June 11, 2004, the Federal Court released its reasons in Eastmond v. Canadian Pacific Railway, 2004 FC 852. This case involved a complaint that Canadian Pacific had violated its employees' privacy rights by installing six surveillance cameras in part of its main maintenance yard.
The complainant initially brought a complaint under PIPEDA, Canada's federal private sector privacy legislation. In January 2003, the Federal Privacy Commissioner held that the complaint was well founded, and recommended that Canadian Pacific remove the surveillance cameras. Following that report, the complainant initiated Federal Court proceedings for an order confirming the Privacy Commissioner's report.
The Federal Court rejected the Commissioner's report and stated that there was no PIPEDA violation. The court made some preliminary findings, including:
- The court classified PIPEDA as a "fundamental law" of Canada with quasi-constitutional status.
- The court held that it could accord the Privacy Commissioner some deference in the Commissioner's area of expertise, but that the court should not accord any deference to the Commissioner's findings of fact because the evidence before the court was considerably different from that gathered by the Commissioner's investigation.
The court looked at four factors to determine whether Canadian Pacific's purposes for collecting personal information would be considered appropriate by a reasonable person: (1) whether the cameras were necessary to meet specific Canadian Pacific needs; (2) whether the cameras were likely to be effective in meeting that need; (3) whether the loss of privacy was proportional to the benefit gained; and (4) whether there was a less privacy invasive way of achieving the same end.
Applying these factors, the court found that a reasonable person would consider Canadian Pacific's purposes for collecting information via the surveillance cameras were appropriate in the circumstances.
First, the surveillance system devised and implemented by Canadian Pacific was sufficiently limited: the collection of personal information was not surreptitious (warning signs were displayed); the collection of personal information was not continuous (a person's image would only be captured when the person was within the camera's "footprint"); the collection was not limited to Canadian Pacific employees; the collection was not to measure a Canadian Pacific employee's work performance, and Canadian Pacific could not use the images to measure an employee's productivity because such a use of the information would be for a purpose different from that for which it was collected; and the recorded images were kept secure and only accessed if there was an incident reported. Second, Canadian Pacific established a legitimate need for the surveillance cameras by identifying numerous past incidents of vandalism and theft. Third, the loss of privacy was minimal - the recordings were never viewed unless an incident requiring an investigation occurred.
Given these circumstances, the court found that Canadian Pacific had looked at alternatives and weighed them in the context of its operations, and concluded that alternatives such as fencing and security guards were not cost effective or would be disruptive.
The court also found that Canadian Pacific could collect the applicant's personal information without his knowledge or consent because a PIPEDA exemption applied (allowing such collection for purposes related to investigating a breach of an agreement or a contravention of a law). Also, the court stated that Canadian Pacific's actual collection of the personal information occurs only when officials view a recording to investigate an incident - no Canadian Pacific official views the monitor at the time the cameras are recording, the recording is never viewed unless there is a triggering event, and the recording is erased after 96 hours if it is not accessed.
This decision demonstrates that the courts may take a different view on privacy issues from that of the federal Privacy Commissioner. As well, it demonstrates how issues relating to video surveillance in general, and workplace surveillance in particular, will be approached by the courts.
For a copy of the decision, visit: