FPSLREB Decisions

I. Grievance referred to adjudication

[1]   David Sabourin was terminated from his position as a postal services employee with the House of Commons on October 14, 2003.   He was terminated on the basis of an alleged culminating incident.   The employer alleges that the culminating incident was that he “dishonestly misrepresented” his medical condition in order to claim injury-on-duty benefits (Exhibit G-3).   The employer came to this conclusion, in part, on the basis of video surveillance of Mr. Sabourin outside the workplace.   Mr. Sabourin has objected to the introduction of the videotapes of the surveillance, as well as a kinesiology report that is based upon those videotapes.   The parties agreed that I should decide on the objection and issue an interim decision.

[2]    Mr. Sabourin was a member of a bargaining unit represented by the Public Service Alliance of Canada (PSAC) and governed by the collective agreement between the PSAC and the House of Commons for the Postal Services Sub-Group bargaining unit (expiry date: June 30, 2003; Exhibit G-1).   At the commencement of the hearing, Mr. Sabourin was represented by Glen Chochla, of the PSAC.   Paul Champ took over as counsel for Mr. Sabourin and the bargaining agent when the hearing resumed on October 12, 2005.

[3]    The employer called five witnesses.   Two of the witnesses testified in French, and simultaneous interpretation was provided.   No witnesses testified for Mr. Sabourin.   Mr. Sabourin’s representative requested an order excluding witnesses, and counsel for the employer, Charles Hofley, did not object.   An order excluding witnesses was therefore granted.

[4]    Mr. Hofley sought to introduce a document prepared by André Cyr, Coordinator of Program Implementation, Occupational Health, Safety and Environmental Services, in October 2004, which summarized a review of Mr. Sabourin’s workers compensation files in the possession of the employer.   Mr. Chochla objected to the introduction of this document on the basis that it had been prepared after the video surveillance.   I ruled that this document was not admissible on the basis that it was a document prepared after the decision to conduct video surveillance and after Mr. Sabourin’s termination.

[5]    During the course of Mr. Cyr’s cross-examination, Mr. Champ requested the disclosure of notes from Mr. Sabourin’s injury-on-duty file for the period of June 1-19, 2003.   I ordered the disclosure of these documents.   Mr. Champ also requested the disclosure of Mr. Sabourin’s previous Workplace Safety and Insurance Board (WSIB) and Workers’ Compensation Board (WCB) files that Mr. Cyr had reviewed in coming to his recommendation for video surveillance.   I ordered their disclosure for the limited purpose of cross-examining Mr. Cyr on the foundation for his recommendation of video surveillance and in the examination of Mr. Sabourin, if he should testify.   However, I stated that I would not hear evidence that would re-open or challenge those earlier WSIB claims.

Evidence

[6]    Mr. Sabourin worked at the House of Commons warehouse on Belfast Road in Ottawa.   He slipped at work on June 9, 2003, resulting in a back injury.   Paul Deault was his supervisor and is the supervisor of postal distribution services at the House of Commons.   Mr. Deault did not observe the accident but was immediately advised that Mr. Sabourin had been injured.   Mr. Deault took Mr. Sabourin to the Montfort Hospital by car.   Mr. Sabourin was able to get into the car on his own.   Mr. Deault gave him a taxi chit to return from the hospital and Mr. Sabourin was left at the hospital.   Mr. Deault left him at the hospital entrance.   Mr. Sabourin later called Mr. Deault to tell him that there had been too many people in the emergency department and that he would go to a walk-in clinic in Orleans instead.   Mr. Sabourin returned to work to get his car.   Mr. Sabourin later provided a form signed by Dr. S. Wijay, of the Orleans Gardens Family Health Centre (Exhibit E-1), dated June 9, 2003.   The form stated that he would be absent from work from June 9 to 13, 2003, inclusive.

[7]    Linda Baird, an Occupational Health and Safety Advisor with the House of Commons, was advised by Mr. Deault of Mr. Sabourin’s accident by e-mail (Exhibit G-11) on the date of the accident.  An Accident Investigation Report was prepared by Mr. Deault on June 10, 2003 (Exhibit E-12).   Ms. Baird followed up with Mr. Deault on June 11, 2003, to obtain further information and conducted an investigation shortly afterwards.   She interviewed Sergine Courchaine, a witness to the accident, as well as Mr. Deault.   She also inspected the accident site.   Ms. Baird concluded that the stairs had been slippery and that this had been an ongoing problem “for some time” (Exhibit G-11).   She recommended that the stairs be painted with an anti-slip paint.   The Employer’s Report of Injury form (Exhibit G-10) was prepared on June 13, 2003, and forwarded to the WSIB.   Mr. Cyr testified that the box checked off on the form indicating that no modified duties were available was based on Dr. Wijay’s report.

[8]    On June 16, 2003, Mr. Sabourin came to Mr. Deault’s office to obtain an Occupational Fitness Assessment form to take to his doctor (Exhibit E-2).   Mr. Deault testified that Mr. Sabourin took the stairs (about ten steps) up to the office on Belfast Road and did not need assistance.   He testified as well that Mr. Sabourin “seemed fine” and “normal”.   Mr. Sabourin then sat down on the couch in the office for about 15 or 20 minutes.   He got up from the couch without assistance.   Marc Aubin, another supervisor at the Belfast Road warehouse, observed Mr. Sabourin walking up the stairs and observed him walking as usual.

[9]    Ms. Baird also prepared for Mr. Cyr (her supervisor) a summary dated June 16, 2003 (Exhibit G-11) of Mr. Sabourin’s work-related injuries based on her review of files that were at Central Records.   She listed five separate claims, as follows, and indicated that “all were approved by the WCB”:

1. February 1996:       abrasion to scalp
2. March 1996:            injury to right ankle
3. November 1996:    injury to left index finger
4. January 1997:        injury to the right side of his chest
5. April 1997:              injury to his lower back

[10]    Mr. Cyr testified that after reviewing this list “something struck” him and he wanted to investigate further.   He was not convinced that all of the previous claims had been approved by the WSIB based on his recollection of claims not on file at Central Records.   Mr. Cyr requested files from Archives for claims in 1993 and 1994.   He then examined these files in more detail.   Mr. Cyr testified that on three of those claims Mr. Sabourin had attempted to not report for modified duties (the January 1997 claim, the April 1997 claim, and the one in 1993 or 1994).   In 1993, Mr. Sabourin did not submit additional medical information to the WSIB and, since he was not cooperating, the WSIB closed the file.   With regard to the April 1997 claim, Mr. Cyr testified that the employer disputed that the injury occurred at the workplace.   However, the WSIB was unable to confirm that the accident happened outside of the workplace, and in such instances the claim is decided in favour of the injured worker.   On cross-examination, Mr. Cyr agreed that there were only two claims that involved “complications”.

[11]    In the claim of December 15, 1993, Mr. Sabourin strained his back and missed a few days of work.   The employer reported the injury to the WSIB, but Mr. Sabourin never made a claim to the WSIB.

[12]    In the claim of June 6, 1994, Mr. Sabourin was provided with a note from Dr. James Dickson indicating that modified duties were appropriate.   Mr. Sabourin was offered modified duties in the warehouse, answering the telephones.   He initially refused the modified duties, saying that his doctor had said that he could not work in the warehouse.   Dr. Dickson was contacted by the employer and Dr. Dickson told them that the proposed modified work was appropriate.   The employer contacted the WSIB (then known as the Workers’ Compensation Board), and Mr. Sabourin’s benefits were terminated (Exhibit E-7).   Mr. Sabourin was phoned that day by John Bejermi, of the House of Commons Health and Safety Branch, and Mr. Sabourin agreed to return to work the next day (Exhibits E-5 and E-6).

[13]    In cross-examination, Mr. Cyr testified that he reviewed the files to identify potential malingering.   He also testified that it was common practice to review former files in the case of any workplace injury to determine if the injuries were similar, to identify cases of malingering, and to identify other measures, such as ergonomic assistance.   He testified that such a review assists in the decision on whether to conduct video surveillance.

[14]    Mr. Sabourin’s doctor, Dr. Dickson, prepared and signed a Physician’s Certificate of Disability for Duty, a Health Canada form (Exhibit G-9) on June 16, 2003, indicating that Mr. Sabourin was incapable of working at his normal occupation and giving an estimated return-to-duty date of July 1, 2003.   Dr. Dickson also completed the House of Commons’ Occupational Fitness Assessment form (Exhibit E-2/G-9).   He indicated on the form that Mr. Sabourin had reduced abilities to walk, stand, sit and drive.   In the detailed breakdown of various activities, such as lifting and carrying, and the appropriateness of such activities, Dr. Dickson checked off “not at all”.   He also checked “no” to the question that read as follows:   “If the employer can provide modified duties to match the employee’s functional abilities, do you feel the employee can return to work at this time?”   He checked “yes” to the question on the form as to whether the Occupational Health and Safety Branch of the House of Commons could contact him to discuss “Work/Rehab” assistance that could be provided.   He wrote that it was “possible” that Mr. Sabourin would be fully recovered by July 1, 2003, and that he would like to reassess Mr. Sabourin on June 30, 2003.

[15]    Mr. Sabourin brought the Occupational Fitness Assessment form (Exhibit E-2/G-9) back to the Belfast Road warehouse office on June 17, 2003.   Mr. Aubin observed Mr. Sabourin walking with Mr. Deault.   Mr. Deault forwarded the form to Mr. Cyr.

[16]    Mr. Deault spoke to his supervisor, Robert Frenette, on June 17, 2003, to advise him that Mr. Sabourin had returned the Occupational Fitness Assessment form.   Mr. Frenette asked him to call Mr. Sabourin to inform him of a one-day scanner training session to be held on June 18, 2003; Mr. Sabourin had been scheduled to take this course.   Mr. Deault testified that he advised Mr. Sabourin that the training mostly involved watching a video.   He advised Mr. Sabourin that he could sit, stand and walk around during the training.   Mr. Sabourin told him that his back was hurting and he could not attend.   Mr. Frenette testified that the training was offered annually.   Most of the course is theory, and the physical aspect of the training involves demonstrating the equipment for approximately 20 to 30 minutes. He testified that he did not see any problem in Mr. Sabourin sitting in a classroom and was somewhat surprised when he was advised that Mr. Sabourin could not attend.   Mr. Frenette called Mr. Cyr and informed him of Mr. Sabourin’s refusal.   He also mentioned to Mr. Cyr his concerns that, although the medical assessment was quite serious, Mr. Sabourin appeared to be able to move around.   He asked Mr. Cyr what his options were.   Mr. Cyr mentioned some of the options to Mr. Frenette and told him that one possible option was to use surveillance.

[17]    Mr. Frenette told Mr. Cyr that if Mr. Sabourin could not sit in a classroom then the option of modified duties was not reasonable.   He testified that surveillance was the only option available.   In cross-examination, he was asked if obtaining a second medical opinion from another doctor was an option.   He testified that it was not an option that was presented to him when he contacted Mr. Cyr.   He also testified that the employer already had the opinions of two doctors (Dr. Wijay and Dr. Dickson).   Mr. Frenette did not have the power to order surveillance and raised the matter with his supervisor, Mr. Malette, the Chief of Postal Services.   After discussion with Mr. Malette, both of them went to speak with Art St. Louis, Director, Building Management.

[18]    A claim for disability insurance was prepared by Mr. Aubin and signed on July 28, 2003 (Exhibit G-6).   The form asks: “If the employee could return to work on a reduced hours basis, or with a change in duties, would a position be available?”   Mr. Aubin wrote: “No modified duties available”.   In cross-examination, Mr. Deault was asked if there was any modified work available for Mr. Sabourin at the Belfast Road warehouse.   He replied that he was not aware of any available modified work.   On redirect examination, Mr. Deault stated that offering modified duties was the responsibility of his supervisor, Mr. Frenette, and not part of his duties.   Mr. Frenette testified that there were no modified duties available at that point at the Belfast Road warehouse.   He testified that modified duties were rarely available.   Mr. Cyr testified that there was “not much of a plan” for modified work for Mr. Sabourin.   He testified that they would need to meet with Mr. Sabourin and an ergonomics specialist.   Mr. Cyr stated that there was never an opportunity for Mr. Sabourin to come to the worksite to develop a work program because when he was asked to come in for modified duties he refused.   Mr. St. Louis testified that accommodating injured employees through modified duties was handled corporately by either Mr. Mallette or himself.   Mr. St. Louis testified that he was not aware of any available modified duties because at the time the assessment of Dr. Dickson still stood.

[19]    Mr. Cyr was asked why he believed that Mr. Sabourin could perform modified duties when Dr. Dickson said that he could not do so (Exhibit G-9).   Mr. Cyr testified that doctors often go by the employee’s current work description and do not understand that modified duties outside of the work description can be offered. He did not speak to Dr. Dickson until July 3, 2003, after the video surveillance had been ordered and completed.   Mr. Cyr testified that he did not consider calling Dr. Dickson earlier.   He testified that if Mr. Sabourin had fallen from a ladder he would “of course” have been very concerned; however, his slipping injury did not appear to be of a serious nature.   Mr. Cyr testified that the WSIB was notified that modified duties were available.

[20]    Mr. Cyr testified that he recommended video surveillance on the basis of his consultation with the Manager, the review of the files, the mechanism of the injury, the resistance of Mr. Sabourin to the scanner training and the fact that he seemed to have an aggravating condition.   After consulting and discussing the matter with Mr. Frenette, Mr. Cyr then went to his Manager, Benoit Giroux.

[21]    Mr. St. Louis testified that he was advised of Mr. Sabourin’s injury shortly after its occurrence.   Mr. St. Louis accepted that an accident had occurred.   He testified that some of the information he received about Mr. Sabourin was contradictory.   Mr. St. Louis noted that Mr. Sabourin drove to the clinic and also dropped off medical reports at the workplace, yet a few days later he was alleging that he was incapacitated.   Mr. St. Louis testified that the refusal of scanner training by Mr. Sabourin was the “watershed” for him in coming to the decision to authorize video surveillance. Mr. St. Louis felt that Mr. Sabourin was not cooperating with his managers.

[22]     Mr. St. Louis also based his decision to order surveillance on his interactions with Mr. Sabourin on previous disciplinary matters.   He testified that this was the fifth disciplinary incident in four years.   In December of 1999, Mr. Sabourin received a written reprimand for the unauthorized use of a taxi chit.   In July of 2001, he received a written reprimand for an unauthorized absence from the workplace and in October 2001, he received a three-day suspension for opening an envelope from a Member’s office.   The most recent incident involved the theft of a book and some batteries and an attempt to conceal the theft, in April and May 2002.   Mr. St. Louis testified that he personally investigated the matter and that, once he obtained all the facts and presented them to Mr. Sabourin, he admitted to the theft.   A 20-day suspension and a demotion were imposed (Exhibit E-17); Mr. Sabourin did not grieve.   Mr. St. Louis waived the suspension in order to alleviate the financial burden on the grievor’s family, although he testified that the discipline still stands.   Mr. St. Louis also testified that Mr. Sabourin signed an undertaking that he would “change his attitude” at work.

[23]    Mr. St. Louis testified that employees are expected to have high ethical standards given their daily interaction with Members of Parliament.   He testified that Members of Parliament and their staff are demanding.   He testified that there is a saying in the House of Commons with regard to the relationship between employees and Members of Parliament: “retribution is swift”.

[24]    After the refusal of scanner training on June 18, 2003, Mr. St. Louis asked the House of Commons Staff Relations office to consult with legal advisors on the appropriateness of video surveillance.   Mr. St. Louis also testified that he sought legal advice from outside counsel.   He also sought the advice of the Sergeant-at-Arms and the Director of Security.   On June 19, 2003, he made the decision to order surveillance.   He decided that the surveillance would start on June 25, 2003, in case there were “any other developments”.

[25]    Mr. St. Louis testified that the employer could have asked for a referral to Health Canada.   However, he stated that he did not feel it necessary, as the employer had no reason to doubt Dr. Dickson.   The nub of the employer’s concern was that “we weren’t seeing what he [Dr. Dickson] was describing”.   Mr. St. Louis agreed that Dr. Dickson was stating in the medical certificate that Mr. Sabourin was not fit for work.   However, Mr. St. Louis doubted that diagnosis and did not know whether Dr. Dickson had all the information.   In cross-examination, Mr. St. Louis testified that Mr. Cyr briefed him on his dealings with Dr. Dickson.   He was advised by Mr. Sabourin’s counsel that Mr. Cyr did not talk to Dr. Dickson before the surveillance was conducted.   Mr. St. Louis testified that this was not what was reported to him and that he was told that Mr. Cyr had spoken to Dr. Dickson.   He testified that it would have been appropriate in the circumstances to talk to Dr. Dickson.   In redirect examination, Mr. St. Louis was asked if it was possible that Mr. Cyr had talked to Dr. Dickson after June 19, 2003, and he testified that it occurred before that date.

[26]    Mr. St. Louis testified that he felt that the only option left to him to resolve the inconsistencies between the medical certificate and the observations of management was video surveillance.   He described video surveillance as a “last resort” only after trying everything else, especially cooperation from the employee and from the physician.

[27]    Mr. Cyr met with the investigators on June 19, 2003.   He testified that the employer has used this investigation firm approximately five times over the years.   He also testified that the employer relied on the WSIB surveillance policy (Exhibit E-3).

[28]    Mr. St. Louis testified that he viewed the videotapes and subsequently requested a professional analysis by kinesiologists.   He testified that the video surveillance occurred in public places, such as in a department store, on the street, in a restaurant and at a car wash.   He testified that the video was not taken in “private places”.   In cross-examination, he testified that some of the video surveillance was taken of Mr. Sabourin on his front porch.   He stated that the individuals who took the video surveillance were available to testify and that he was satisfied that the video had been kept in secure custody.

[29]    Dr. Dickson completed a WSIB Functional Abilities form (Exhibit G-5/E-14) dated July 2, 2003.   He indicated on the form that Mr. Sabourin was capable of returning to work with limitations, specifically limitations on bending or twisting and repetitive movement of his back.   In the “capabilities” section, Dr. Dickson indicated that Mr. Sabourin was capable of walking for short distances only, standing for less than 15 minutes and sitting for less than 30 minutes.   Mr. Sabourin was capable of lifting “as tolerated” and stair-climbing at his own pace.   Dr. Dickson indicated that Mr. Sabourin should limit his physical exertion to “as tolerated”.   The estimated duration of the limitations was six weeks.   Dr. Dickson also completed a Health Canada Physician’s Certificate of Disability for Duty on July 1, 2003 (Exhibit G-7).   Dr. Dickson agreed that Mr. Sabourin was incapable of working at his normal occupation and added “light duties” to the form.   The estimated date of return to duty was August 4, 2003.

[30]    Mr. Cyr reviewed the WSIB Functional Abilities form and on his copy it appeared that Dr. Dickson had ticked off “graduated hours”.   He therefore called Dr. Dickson on July 3, 2003, to clarify this point.   Dr. Dickson was surprised to hear that this box had been checked and clarified that it was a “slip of the pen”.   Mr. Cyr wrote this clarification on the employer’s copy of the form (Exhibit E-15) and on a note to file (Exhibit E-16).   (The form includes multiple carbon copies and it was shown at the hearing that the copies were not properly aligned and the checkmark on the employer’s copy had shifted from the box above.)   Dr. Dickson also told Mr. Cyr that Mr. Sabourin had a “very sore back” and that this had happened before.   He told Mr. Cyr that Mr. Sabourin could not come to work for another six weeks (Exhibit E-16).

[31]    Mr. Sabourin called Mr. Cyr on July 14, 2003, and said he was concerned that he was being watched by people in vans with tinted windows.   He told Mr. Cyr that his wife ran a daycare centre and he had some fears for the children’s safety.   He also advised Mr. Cyr that the WSIB had informed him that it was not conducting surveillance.   He asked if the employer was conducting surveillance and Mr. Cyr told him that he would look into it and get back to him.   Mr. Cyr testified that the surveillance had stopped on July 11, 2003.   Mr. St. Louis testified that the surveillance continued until July 14, 2003.   Mr. Cyr did not call Mr. Sabourin back.

[32]    Mr. Sabourin was suspended without pay on July 24, 2003, “on suspicion of fraudulent use of injury-on-duty leave” pending further investigation (Exhibit G-2).   In the letter of suspension, Mr. St. Louis stated that the employer was in possession of information that “suggests that your actual physical and health status was incompatible with the medical information provided” (Exhibit G-2).   Mr. Sabourin’s employment was terminated as of October 14, 2003 (Exhibit G-3).   In the letter of termination the employer stated that it had come to the conclusion that Mr. Sabourin had dishonestly misrepresented his medical condition in order to claim benefits.   The employer regarded this as a culminating incident justifying discharge.

[33]    Mr. St. Louis was asked what weight the video surveillance had in his decision to terminate Mr. Sabourin’s employment.   He described it as a “defining moment” and “very conclusive”.

[34]    In cross-examination, Mr. St. Louis denied that he had wanted to see Mr. Sabourin fired and said that this was not the way that employees at the House of Commons were treated.  He stated that he had given Mr. Sabourin the option of resigning rather than being dismissed.

Submissions

For the Grievor

[35]    Mr. Champ submitted that this preliminary matter involves the balance between Mr. Sabourin’s right to privacy and the employer’s right to protect its legitimate interests.

[36]    Mr. Champ submitted that the consensus in the jurisprudence favours the application of a two-step test for determining admissibility of video surveillance evidence:

1. Was it reasonable, in all of the circumstances, to request video surveillance?
2. Was the video surveillance conducted reasonably?

[37]    Mr. Champ argued that section 8 of the Charter of Rights and Freedoms, which provides for the right to be free of unreasonable search and seizure, was engaged here, as the employer was a governmental entity and the private investigators were acting as agents of the state.

[38]    Mr. Champ submitted that the employer has failed to demonstrate that it was reasonable in the circumstances to order video surveillance.   He submitted that there was not even enough concern for the employer to be suspicious.   Mr. Champ noted that one of the factors in the reasonableness test is whether the employer exhausted other options before requesting video surveillance.   Mr. St. Louis understood this part of the test when he referred to video surveillance as the “last resort”.   The employer could have called on Dr. Dickson.   It had a signed authorization from Mr. Sabourin and had contacted Dr. Dickson in respect of a previous WSIB claim.   Instead, the employer leapt to a conclusion.

[39]    Mr. Champ referred me to R. v. Wong, [1990] 3 S.C.R. 36, for a discussion of the Charter right to privacy and the restriction on the right of the state to surreptitiously videotape people.   He also referred me to the decision on privacy in Re Doman Forest Products Ltd. v. International Woodworkers, Local I-357 (1990), 13 L.A.C. (4th) 275.   Mr. Champ also referred me to Re Canadian Pacific Ltd. v. Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4th) 111.   He noted that the facts were similar to those in Mr. Sabourin’s situation, except that in Re Canadian Pacific Ltd. (supra) it was the doctor who suspected a scam and called the employer, as the grievor had had previous false-claim findings.   Re Canadian PacificLtd. (supra) sets out the two-part test of reasonableness for video surveillance.

[40]    Mr. Champ noted that in Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1999), 95 L.A.C. (4th) 402, video surveillance is described as a last resort and that, before leaping to video surveillance, the employer should first see what other options are available.

[41]    Mr. Champ submitted that the position taken in some decisions that video surveillance in public places is admissible was not tenable.   He referred me to the decision in Centre for Addiction and Mental Health v. Ontario Public Service Employees Union, [2004] O.L.A.A. No. 457 (QL).   It is important to look at the context, and the employer clearly has to be reasonable in all of its video surveillance.   The employer-employee relationship is a factor that can be considered in a Charter analysis of the right to privacy.

[42]    Mr. Champ submitted that subsection 15(c) of the Parliamentary Employment and Staff Relations Act (PESRA) gives an adjudicator the discretion to receive or exclude evidence, whether or not it is admissible in a court of law.   He submitted that I should consider the labour relations context and also that it is my role as an adjudicator to give guidance to the employer as to what is appropriate conduct.

[43]    Mr. Champ argued that the fact that Mr. Sabourin refused the scanning course could not be grounds for suspicion by the employer.   The WSIB Functional Abilities form (Exhibit G-9) was categorical:   Mr. Sabourin was not fit for any duties. Mr. Champ submitted that, in fact, it was the cost of providing the course again for Mr. Sabourin that was the concern of the employer.   The employer could have called Dr. Dickson.   In 1993, it did just that.   Dr. Dickson clarified the situation and the next day Mr. Sabourin showed up for work.   The employer had Mr. Sabourin’s authorization to speak to his doctor.   Mr. St. Louis testified that it was appropriate to call Dr. Dickson before conducting the video surveillance.

[44]    Mr. Champ noted that Mr. Cyr testified that, after reviewing the list of previous WSIB claims (Exhibit G-11), he had concerns because he knew that not all the claims had been approved.   Mr. Cyr then recalled earlier claims from 1993 and 1994 where he felt there were issues of malingering.   Mr. Champ submitted that a review of the files provided a different picture.   In 1993, Mr. Sabourin was injured, reported the injury to his employer and was off work for two days.   He did not file a claim.   This is not a case of providing false information, as in Re Canadian Pacific Ltd.   (supra).   Of the five WSIB files listed in Exhibit G-11, none of them involved the WSIB not approving the claims.   Two files involved no loss of work and one involved Mr. Sabourin having surgery.   Of the two files that Mr. Cyr identified as raising issues of malingering, an examination of these files showed that they did not involve malingering at all.   One file was contested, but the issue was whether or not the injury occurred at work.   In the 1993 claim, Dr. Dickson was called because Mr. Sabourin did not agree that the modified duties were suitable.   Mr. Champ argued that it was a “stretch” to say that this constitutes malingering.

[45]    Mr. Champ submitted that the previous discipline of Mr. Sabourin did not provide reasonable grounds for the employer to institute video surveillance.   He also submitted that the theft of office supplies was minor; Mr. Sabourin admitted his conduct, was very remorseful and did not even grieve it.   The evidence was that Mr. Sabourin takes responsibility for what he does wrong.   Mr. Champ submitted that the employer might be more alert because of this history, but it does not take us all the way to video surveillance.   It is clear that what has happened in the past cannot automatically justify video surveillance.   There still needs to be something about the particular instance that justifies surveillance (Re Toronto Transit Commission (supra)).

[46]    Mr. Champ also submitted that the decision to conduct video surveillance was made within a 24-hour period.   It was so swift that by definition it could not be reasonable.

[47]    Mr. Champ noted that there were no modified duties available for Mr. Sabourin and that there was no plan to offer modified duties.

[48]    Mr. Champ noted that there was not much evidence on the conduct of the video surveillance; it was conducted in a number of different places, including while Mr. Sabourin was on his front property and front porch.   There was also evidence that Mr. Sabourin was concerned because his wife ran a daycare centre and was fearful that people were watching the children.   Mr. Cyr said that he would get back to him but never did.

[49]    Mr. Champ noted that it was Mr. St. Louis’ misunderstanding or misapprehension that Dr. Dickson had been called.   He testified that this was the appropriate thing to do.   Now that Mr. St. Louis knows that Dr. Dickson was not called, Mr. Champ questioned why the employer was still opposing the motion to exclude the evidence.

[50]    Mr. Champ also referred me to Re Prestressed Systems Inc. v. Labourers’ International Union of North America, Local 625 (2005), 137 L.A.C. (4th) 193.

For the Employer

[51]    Mr. Hofley submitted that the video surveillance evidence and the kinesiology report based on that surveillance were clearly admissible and should be admitted. He stated that much of what Mr. Champ said about the test for admission of video surveillance is generally correct.   Mr. Hofley noted that care should be taken not to overly rely on the early case law, as decisions such as Re Doman Forest Products Ltd. (supra) have been somewhat subsumed by the evolution of the concept of privacy.

[52]    Mr. Hofley noted that the norm is to admit videotape surveillance (Re Canadian Pacific Ltd. (supra)).   He also noted that in Centre for Addiction and Mental Health (supra), the arbitrator noted that there needs to be “very compelling reasons” not to admit relevant evidence.   He also referred me to subsections 15(c) and 66.1 of the PESRA.

[53]    Mr. Hofley submitted that the Personal Information Protection and Electronic Documents Act (PIPEDA) applied to the House of Commons.   However, the PIPEDA identifies the test of reasonableness only and does not expand on the scope of the analysis (Telus Corp. v. Telecommunications Workers Union, [2004] C.L.A.D. No. 506).   Mr. Hofley submitted that the House of Commons is not subject to section 8 of the Charter because it is not a state agent.   On this basis, he submitted that R. v.Wong (supra) was not relevant.   Furthermore, R. v. Wong (supra) involved the surveillance of a hotel room.

[54]    Mr. Hofley agreed that it was not open to the employer to engage in speculative spying of its employees.   Clearly, however, the ordering of video surveillance in this case was not speculative, and to say that the employer was acting upon pure speculation is to ignore the evidence.   In Re Canadian Pacific Ltd. (supra), the reference to the method of surveillance as being not excessive or unduly intrusive is contextualized by the reference to reviewing bank records.   Mr. Hofley also noted that in Re Canadian PacificLtd. (supra) it is not necessarily a requirement that the employer exhaust every possible option before conducting surveillance.

[55]    Mr. Hofley submitted that counsel for Mr. Sabourin put a great deal of emphasis on the WSIB claims.   While clearly relevant, it was only one of the factors that the decision-maker, Mr. St. Louis, took into consideration.   Mr. St. Louis put more emphasis on his direct involvement with Mr. Sabourin in respect of previous disciplinary matters.

[56]    Mr. Hofley submitted that Centre for Addiction and Mental Health (supra) could be clearly distinguished, as it applied to a situation where the employer effectively set up a net of surveillance by capturing on video something it had no reason to suspect it would find.

[57]    Mr. Hofley submitted that in Re Doman Forest Products Ltd. (supra), a merged test of reasonableness and relevancy was used.   He also noted that in that case there was a collective agreement provision that was engaged, which is not the case here.   Mr. Hofley also submitted that in Re Doman Forest Products Ltd. (supra) a request for a medical certificate was not considered to be a condition precedent for video surveillance, whereas in this case there is a medical certificate as well as a conversation with Dr. Dickson on July 3, 2003.

[58]    Mr. Hofley submitted in the alternative that, as was done in Re DomanForest Products Ltd. (supra), it is open to me to observe the videotape and satisfy myself of any residual concerns about the reasonableness of the video surveillance.

[59]    Mr. Hofley distinguished the decision in Re Prestressed Systems Inc. (supra), on the basis that in that case there was no evidence that the grievor had a worrisome attendance record in the eyes of the employer or that he had any kind of negative assessment.   This is clearly not the case here, where both Mr. Cyr and Mr. St. Louis had concerns based on their previous experience with Mr. Sabourin.

[60]    Mr. Hofley submitted that the Board must have clear and compelling grounds to support the exclusion of evidence, not the opposite, as argued by counsel for Mr. Sabourin (see Re City of Toronto v. Canadian Union of Public Employees, Local 79 (2004), 128 L.A.C. (4th) 217 (Kirkwood)).   He submitted that the question of whether the video surveillance was relevant is the crux of the issue as to admissibility.   Adjudicators have far more latitude in the reception of all evidence, subject to weight, than would be seen in a court of law.   If video surveillance is admissible in court, it must be admissible at adjudication.

[61]    He submitted that the weight of authority supports the admissibility of video surveillance if done properly and for the proper reasons.   He referred to Ferenczy v. MCI Medical Clinics, [2004] O.J. No. 1775 (QL), where the court held that the evidence was relevant and its probative value exceeded its prejudicial effect.   The video surveillance evidence was clearly relevant in establishing the employer’s position in its letter of termination.   The video was key to the decision and was described by Mr. St. Louis as a “defining moment”.   The video was also taken in public areas where there was no expectation of privacy and is, therefore, probative.   In Ferenczy (supra), the court described prejudicial effect as the danger that the evidence would be misused.   Mr. Hofley stated that there was no allegation by Mr. Sabourin that the video will be misused.   Consequently, there is no prejudice to Mr. Sabourin.   As in Ferenczy (supra), the surveillance was taken in a public place and relates directly to the alleged disability.

[62]    Mr. Hofley also referred me to subsection 7(1) of the PIPEDA, which allows for the collection of personal information without the knowledge or consent of the individual for purposes related to an investigation of a breach of an agreement.   In this case, there was a breach of the collective agreement duty to be honest and truthful in the use of sick leave.

[63]    Mr. Hofley submitted that the reasonableness standard for admissibility was qualified considerably in Re Securicor Cash Services and Teamsters, Local 419 (2004), 125 L.A.C. (4th) 129.   In that decision, the arbitrator held that, although the arbitrator had the discretion to exclude evidence that was otherwise relevant and probative, there must be “extremely compelling reasons” and it would be appropriate to do so only “in the narrowest of circumstances”.   Mr. Hofley submitted that the test for admissibility was as set out in Re Securicor Cash Services (supra):   “a weighing of the employer’s reasons for wanting the information and the methods used against the degree of intrusion into an employee’s private life in all the circumstances”.   In Re City of Toronto ( Kirkwood) (supra), the test was articulated as whether it was reasonable for the employer “from its perspective” to request surveillance.

[64]    Mr. Hofley also submitted that the employer does not need to exhaust all other alternatives prior to considering video surveillance.   As stated in Re Securicor Cash Services (supra), this would amount to an “artificial and formalistic barrier” and should not be determinative.

[65]    Mr. Hofley argued that the expectation of privacy in a public place, including in the front of one’s own home, is low (Re Securicor Cash Services (supra) and Re City of Toronto v. Canadian Union of Public Employees, Local 416 (2002), 104 L.A.C. (4th) 193 (Herman)).   He submitted that there is no requirement that there be substantial evidence to justify surveillance (TelusCorp. (supra)).

[66]    Mr. Hofley submitted that, in making the assessment as to whether the employer acted reasonably, it is not necessary to conclude that the employer was correct, nor that the adjudicator would have made a similar decision.   Rather, the adjudicator needs only be satisfied that the employer’s actions were reasonable in the circumstances (Re City of Toronto (Herman) (supra)).

[67]    Mr. Hofley also referred me to Re Hôtel-Dieu Grace Hospital v. Canadian Auto Workers, Local 2458 (2004), 134 L.A.C. (4th) 246.   In that decision, the arbitrator noted that it was not a proper consideration to be worried that some people find video surveillance offensive.

[68]    Mr. Hofley submitted that the facts in this case were clearly supported by the law.   There was no evidence led by Mr. Sabourin to contradict the employer’s evidence.   Mr. Hofley argued that counsel for Mr. Sabourin had taken liberties with the evidence and had misconstrued it.   He urged me to look at the evidence carefully and put it in context.

[69]    Mr. Hofley submitted that there was no dispute that an injury had occurred.   What was unusual was that Mr. Sabourin did not stay at the hospital but returned to work to get his car and drive to a clinic.   On June 17, 2003, he drove himself to work to drop off a form and did not show signs of discomfort.   Also, the WSIB Functional Abilities form (Exhibit G-9) showed that all of a sudden he was far worse off than he was originally.   The evidence showed that Messrs. St. Louis and Cyr had no reason to question Dr. Dickson’s assessment.   Their concern was that the form filled out by Dr. Dickson did not match the observations of Mr. Sabourin walking and climbing up the stairs.   Then, Mr. Sabourin was offered a scanning course.   Mr. Hofley submitted that it was not modified work; there was a course being offered that Mr. Sabourin had signed up for and there was no reason why he could not take part in this exercise.   Mr. Fr e nette was concerned and raised it with Mr. Cyr.   It was not the evidence of Mr. Deault that there was no modified work available.   It was not his position to know one way or the other; this was a corporate responsibility handled by senior managers.

[70]    Mr. Hofley noted that when Mr. Cyr received the report on previous claims (Exhibit G-11) he was not concerned with malingering but was concerned with the notation that all of the claims had been approved by the WCB.   He recalled problems with the files, including a reluctance to do modified work.   A review of the files indicated that Mr. Sabourin had not been entirely truthful about his work restrictions in the warehouse.

[71]    Mr. Hofley submitted that the employer’s primary interest was getting Mr. Sabourin back to work.   When the mechanism of the injury, the initial medical report and the report of his actions when returning to drop off the form were examined, there was consensus that all this was not consistent with the WSIB Functional Abilities form (Exhibit G-9).   It was only then that Mr. Cyr started talking about video surveillance.   Video surveillance is not done as a matter of course by this employer and had been done on only five occasions over many years.   The WSIB policy on video surveillance (Exhibit E-3) was relied on in conducting the surveillance.   Mr. Cyr felt that the only way to resolve the discrepancy between the report and the WSIB Functional Abilities form was to conduct video surveillance and he made that recommendation.

[72]    Mr. Hofley noted that Mr. St. Louis was the decision-maker.   Mr. Hofley submitted that he was frank, honest, balanced and compelling.   The evidence demonstrated his respect for employees and a desire to “do the right thing”.   He went to seek further advice from the Sergeant-at-Arms and the Director of Security. He spoke to labour relations professionals and obtained legal advice.   It was only after that, and taking into account his concerns from his personal experience with Mr. Sabourin, that he concluded that his only option was reasonable and properly conducted video surveillance.   After that, he waited a week for the video surveillance to commence in the hope that there might be a change.

[73]    Mr. Hofley stated that perhaps Mr. Cyr did not speak to Dr. Dickson prior to the decision to order video surveillance.   It was clear, however, that Mr. St. Louis believed the call had been made.   In looking at what was in his mind with regard to reasonableness, his decision cannot be faulted.   Mr. Hofley submitted that Mr. St. Louis does not have to be perfect.   This was not a reason to exclude the evidence.   There were appropriate motives on the part of Mr. St. Louis and no pre-judging on his part.   He clearly kept an open mind and proceeded with care.   When he was asked in cross-examination if he wanted to see Mr. Sabourin fired, he clearly said no.   Mr. Hofley submitted that Mr. Sabourin’s disciplinary record demonstrated serious concerns about his honesty and yet Mr. St. Louis did not dock Mr. Sabourin for the 20 days out of concern for his family.

[74]    Mr. Hofley noted that Mr. St. Louis had viewed the video surveillance and it was pivotal in the ultimate decision to terminate Mr. Sabourin’s employment.   Mr. St. Louis testified that the firm that conducted the video surveillance was a reputable one and that the video surveillance was conducted in a reputable manner.   The video surveillance was conducted in public places where there was no expectation of privacy.   Mr. St. Louis ensured that he was apprised on a daily basis of the results to ensure that it was conducted in a reasonable manner.

[75]    Mr. Hofley submitted that, if there was any concern about Dr. Dickson not being called prior to the video surveillance, the question remained as to whether it would have made any difference.   Mr. Hofley submitted that clearly it would not have.   Even if the first time that Mr. Cyr spoke to Dr. Dickson was on July 3, 2003, it is clear that nothing had changed.   Dr. Dickson confirmed that Mr. Sabourin was unable to perform any duties.   Mr. Hofley submitted that the call to Dr. Dickson was a red herring and the rest of the evidence was quite clear.

Reply

[76]    Mr. Champ submitted that the argument that the Charter did not apply to the House of Commons has no basis in law.

[77]    Mr. Champ submitted that the relevance test, with its reference to prejudicial effect, was not applicable.   Similarly, Ferenczy (supra) was inapplicable because in that case the Charter did not apply; it was a court and not a tribunal and there was no employer-employee relationship.   The Charter applies in this case and even if the PIPEDA were to apply, the Charter would supersede it.   Mr. Champ also submitted that whether or not the evidence is admissible in a court was not a consideration, as it is clear that an adjudicator must make an independent finding (Re City of Toronto(Kirkwood) (supra)).

[78]    Mr. Champ submitted that, although counsel for the employer emphasized relevancy, Mr. St. Louis in his testimony appeared to be considering the reasonableness test.

[79]    Mr. Champ referred me to the comment in Telus Corp. (supra) that indicated that suspicion by the employer is not sufficient to justify admission of the evidence.   He also referred me to Re City of Toronto(Herman) (supra), where the arbitrator held that, following suspicions, the employer is justified in taking steps to determine if its suspicions are warranted.   However, having mere suspicions does not mean that the employer can leap to the last resort of video surveillance.

[80]    Mr. Champ also submitted that the test of reasonableness is an objective one, although seen from the employer’s perspective (Re City of Toronto ( Kirkwood) (supra)).   In this case, there is, at best, only suspicion on the part of the employer raised by perceived contradictions between the medical note and personal observations.   There is no report on file of these concerns by those who observed Mr. Sabourin.   Mr. Champ also pointed out that it was the employer that asked Mr. Sabourin to come in to pick up the form and then used the fact that he came in against him.   The employer’s position that the facts “did not add up” is speculative and constitutes only a suspicion that could lead to taking steps to resolve any contradictions, short of video surveillance.

[81]    Mr. Champ submitted that, with regard to the motives of the employer, it was important to note that (according to Mr. Champ) there were a number of employees who had resigned following meetings with Mr. St. Louis.   Mr. Sabourin, however, did not resign.   Mr. Champ also noted that Mr. St. Louis had stated spontaneously in his testimony that “retribution is swift” was a saying at the House of Commons.   Mr. Champ submitted that this was the attitude of this employer.

[82]    Mr. Champ submitted that, if I find that any surveillance in a public place is always admissible, it is important to note that some of the surveillance was in Mr. Sabourin’s front yard, driveway and front porch.   Mr. Champ referred to R. v. Wong (supra), which emphasized the importance of considering the circumstances.   Mr. Champ also referred me to Re Securicor Cash Services (supra) and Re Toronto Transit Commission (supra).

[83]    Mr. Champ submitted that the reference by Mr. Hofley to the statement in Re DomanForest Products Ltd. (supra) that a medical certificate was not a condition precedent for video surveillance was not relevant.   In this case, a medical certificate had been provided.

[84]    Mr. Champ argued that Mr. Hofley’s position that calling the doctor would not have made a difference was not tenable.   First of all, this is a procedural issue and not a substantive one, and deals with a procedural right of due process.   Secondly, the question put to Dr. Dickson by Mr. Cyr did not address the suspicions of the employer.   Mr. Champ also noted that the fact that Mr. St. Louis thought the conversation between Dr. Dickson and Mr. Cyr had occurred was irrelevant, since the test of reasonableness is an objective test, not a subjective one.

Reasons for Decision

[85]    There is no dispute that Mr. Sabourin was injured on duty on June 9, 2003.   The issue on this preliminary motion is whether video surveillance of Mr. Sabourin conducted by the employer and a report based on that video surveillance are admissible in evidence.

[86]    An adjudicator appointed pursuant to the PESRA has the discretion to admit evidence or not (section 15).   Relevance is the general rule for admissibility.   Although I have not seen the video or the report that is based on that video, the evidence is arguably relevant.   However, relevant evidence can be excluded when its admission is contrary to legislation, sound labour relations policy or would be harmful to the ongoing relationship of the parties.   Whether or not the evidence is admissible in a court is not determinative.   In other words, just as adjudicators can admit evidence that would not be admissible in a court, they can also exclude evidence that would be admissible in a court.

I    Privacy Rights or Expectations of Employees

[87]    What is the source of an employee’s right or expectation of privacy?   Both parties agreed that there was some expectation or right of privacy in the workplace, but disagreed on the source of that expectation or right and the extent.   Mr. Sabourin’s counsel argued that the Charter of Rights and Freedoms is the source of the right to privacy and the employer’s counsel maintained that the PIPEDA governs personal information about employees.

[88]    The Charter is a source of privacy rights for employees in the public sector.   Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”.   In R. v. Wong (supra), the Supreme Court of Canada held that video surveillance without a warrant was a breach of section 8.   The majority held that to permit unrestricted video surveillance by agents of the state “would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society”.   In Canada (House of Commons) v. Vaid, 2005 SCC 30, the Court concluded that the Canadian Human Rights Act, a quasi-constitutional statute, applied to the House of Commons on the basis that any exemption from its provisions must be clearly stated.   This conclusion applies with equal force to the Charter.

[89]    As noted in Re Toronto Transit Commission (supra), there is also some recognition by the courts of a common law right to privacy for employees (Roth v. Roth (1991), 4 O.R. (3d) 740 (Gen. Div.) and Lipiec v. Borsa, [1996] O.J. No. 3819 (QL) (Gen. Div.) [reported 31 C.C.L.T. (2d) 294]).

[90]    Employees also have an expectation of privacy that arises from the arbitral jurisprudence on the limitations to management rights.   As stated in Re Securicor Cash Services (supra):

. . .

The theory ... is that it is part of management's residual rights under the collective agreement to undertake investigations that might impinge on the privacy of employees if such investigations are reasonable in the circumstances.  In this way it can be said that the test of reasonableness arises from the collective agreement itself. The test of reasonableness is an implicit term of the agreement. The other side of the implicit term however is that unreasonable investigations that trench on the privacy of employees are contrary to the collective agreement.

… In my view, employee surveillance depending on the circumstances, can be understood to be an intrusive inquiry into the private realm of the employee, just as much as a physical search, a drug or alcohol test, a medical exam or the search of a locker or coverall pockets.  Whether it is a drug test or surveillance, the employer is conducting an investigation for the purposes of obtaining information that it believes is necessary to run its business.  The type of information being sought is usually not of any concern to the employer in the normal course of business and is understood generally to be within the realm of the employee's private life. Absent a special or unusual concern (for example a suspicion of theft or sick leave abuse), an employer would not be interested in what an employee carries in his or her pockets, whether they are in good health or what they might be doing when standing in front of their home when not at work. In the normal course, this type of information would be understood to be part of the sphere of the employee's private life and of no legitimate interest to an employer.

For these reasons, the same type of analysis which applies to searches or medical examinations should apply to the issue of surveillance -- which is that a collective agreement should be read to include an implicit term that such intrusive inquiries are only permitted if reasonable in the circumstances. In other words, the exercise of management's rights to undertake inquiries that intrude into the sphere of what would in the normal course be considered to be an employee's private affairs, are constrained to only those inquiries which are reasonable.

A finding that a collective agreement otherwise silent on the issue of intrusive employer inquiries should be read to include an implicit term that requires such inquiries to be reasonable, is significantly buttressed where the nature of the inquiry may infringe on common law and statutory rights to privacy.

… One can assume that parties have intended their collective agreement rights and obligations to be exercised and administered in compliance with laws of general application. This must apply to the exercise of management's rights -- so an arbitrator must assume that a management right exercised in the act of surveillance must be consistent with common law protections of privacy as well as (in this workplace) PIPEDA.

. . .

[91]    Given my conclusion that the expectation of privacy in the workplace has its origins in both management rights and the Charter, I do not need to rule on the applicability of the PIPEDA.   I note, however, that the effect of the PIPEDA on the analysis required in ruling on admissibility is limited.   As noted in Telus Corp. (supra), the PIPEDA has codified a standard of reasonableness that has already been established in arbitral jurisprudence.

II    Test for Determining Admissibility of Video Surveillance

[92]    The decision in Centre for Addiction and Mental Health (supra) succinctly summarizes the various tests used by arbitrators to determine the admissibility of videotape surveillance (case citations omitted):

. . .

The current state of the arbitral debate may be described as following three distinct lines of thought.  Some arbitrators have assessed the admissibility of surveillance evidence based solely on whether it is relevant to the issues before them (the "relevancy test").  They have rejected the view that a right of privacy exists in Ontario that would act in any way to limit the admissibility of that evidence.

Other arbitrators have found that a right of privacy exists in Ontario that necessitates a balancing of employer and employee interests in determining whether or not evidence from surveillance is properly admissible.  This has come to be known as the "reasonableness test".

Finally, other arbitrators, although concluding that some right of privacy exists in Ontario (and some potential lingering need to balance interests), reject the wholesale adoption of a reasonableness test in determining the admissibility of surveillance evidence.  In their view, if the surveillance of the employee was conducted in a public place where it cannot be said that the employee had any reasonable expectation of privacy the evidence is admissible and the relevance of the evidence trumps any privacy concern. Any assessment of reasonableness under this analysis relates solely to whether there was any reasonable expectation of privacy in the manner or location in which the surveillance was conducted.

. . .

[93]    I believe that the appropriate balancing of the employer’s interest in combating abuse of benefits and the employees’ privacy interest results in the “reasonableness” test being the most appropriate test for admissibility of videotape evidence.   This is because video surveillance is an extremely invasive investigation technique and requires, in advance, reasonable and probable cause to justify conducting it.   This is the same requirement for physical searches of an employee’s private sphere, such as a locker, a purse or a personal vehicle.   Of course, whether there is reasonable and probable cause to justify video surveillance will depend on the facts in each case.

[94]    The reasonableness test developed in the jurisprudence sets out two requirements that the employer must meet before the evidence is considered admissible:

1. Was it reasonable, in all of the circumstances, to undertake surveillance of the employee's off-duty activity?
2. Was the surveillance conducted in a reasonable manner, not unduly intrusive and proportionately?

[95]    The test for reasonableness is not a subjective test.   The test is what, objectively speaking, was in the mind of the employer or what should reasonably have been in the employer’s mind.

III    Reasonableness of Video Surveillance

[96]    Having a basis for a legitimate suspicion to justify further investigation into an employee’s conduct is not necessarily the same thing as establishing reasonable grounds to conduct covert surveillance.   I accept that the employer had some legitimate suspicions of Mr. Sabourin, based on the observations of Mr. Sabourin at the workplace by his supervisors subsequent to his injury, as well as his refusal to consider the scanner course.   However, these observations and his refusal to attend a one-day course do not immediately justify video surveillance.   The observations of Mr. Sabourin at the Belfast Road warehouse when he picked up and returned the medical forms were made over relatively short periods of time and are not on their face incompatible with the medical restrictions identified by Dr. Dickson.   The questions raised by these observations could have been addressed by Mr. Sabourin’s doctor.   Similarly, the refusal to attend a one-day training course on short notice raises legitimate questions when considered in light of the observations of his supervisors.   Again, the refusal has not been shown by the employer to be incompatible with Mr. Sabourin’s medical restrictions.   The observations of Mr. Sabourin were over a relatively short period of time, whereas the training was for a full day.   This refusal raises legitimate questions that could have been raised with Dr. Dickson.

[97]    The employer’s previous experiences with injury claims are relevant but not conclusive.   The only claim relating to a refusal to perform modified duties occurred almost 10 years earlier.   The experience of the employer in that claim also showed that Dr. Dickson was willing to discuss Mr. Sabourin’s limitations and that Mr. Sabourin accepted the conclusion of his doctor on the performance of modified duties.   If anything, this experience would support a decision to first consult with Dr. Dickson prior to resorting to video surveillance.

[98]    Mr. Sabourin’s previous disciplinary record was also relied on by the employer to justify its decision to conduct surveillance.   The previous discipline for theft and an attempted cover-up of that theft was a legitimate cause for some concern on the part of the employer and does raise concern about his honesty.   However, in and of itself, it cannot support a decision to order surveillance. The evidence of past dishonesty may well have precluded confronting Mr. Sabourin directly with regards to the employer’s concerns about malingering. However, it did not preclude the consideration of less intrusive options, short of surveillance (discussed below).

[99]    The employer is not required to establish that it exhausted all of the alternative means of confirming its suspicions about the employee.   However, as one factor in assessing reasonableness the employer has to explain why some readily available and less intrusive methods could not have accomplished the same goal.   Each option must be examined to determine if, in the circumstances, it would have been appropriate to consider the option prior to resorting to video surveillance (see Re Prestressed Systems Inc. (supra)).

[100]    There were other avenues open to the employer to obtain the information it required.   In the past, Dr. Dickson had been contacted and there was no evidence that this would have been difficult in these circumstances.   Mr. Sabourin had given his written consent to the employer’s contacting Dr. Dickson to discuss his medical condition.   Mr. St. Louis was under the mistaken impression that Dr. Dickson had been consulted.   He agreed that contacting Dr. Dickson would have been a reasonable step.   On the previous occasion when Mr. Sabourin had refused to perform modified duties Dr. Dickson was contacted.   When Mr. Sabourin was advised of his doctor’s opinion on the modified duties offered, he returned to work.   Both Mr. St. Louis and Mr. Cyr testified that they had no problems dealing with Dr. Dickson and had no reason to dispute his diagnosis.   Mr. Cyr appeared to question the diagnosis, however, when he testified that sometimes doctors are not aware of all the duties performed by employees.   However, he did not make an effort to talk to Dr. Dickson and advise him of the modified duties offered (in this case, the one-day training course).

[101]    Dr. Dickson did provide further details on medical restrictions on July 2, 2003 (Exhibits G-5/E-14).   The employer argued that, on the basis of this communication, nothing would have changed if Dr. Dickson had been consulted prior to the video surveillance.   However, the requirement to consider options other than surveillance is a condition precedent and cannot be applied after the fact.   In any event, when Mr. Cyr spoke to Dr. Dickson in July he did not raise the employer’s concerns about Mr. Sabourin’s restrictions, the observations of his managers and the refusal to attend the scanner course.   There may well have been an explanation that Dr. Dickson could have provided that would have addressed these concerns.

[102]    Although each situation of videotape surveillance must be examined on its own facts, it is instructive to look at cases where adjudicators have ruled videotape surveillance admissible.   In Re Canadian Pacific Ltd. (supra), the arbitrator concluded that there was a previous occasion where the grievor was found to have provided false information to the WCB; he was walking in a manner inconsistent with the claimed injury; there was an unusual pattern of on-the-job injuries that far exceeded the average for employees generally; and his treating physician advised the employer that he had suspicions that the grievor was faking his injury.   In Re Toronto Transit Commission (supra) the grievor, who was on sick leave, could not be reached by the employer over a six-week period despite numerous attempts to contact him.   In Re Securicor Cash Services (supra), the grievor missed two shifts in the immediate aftermath of a large cash theft and subsequent observations of his residence indicated suspicious behaviour.   In Re City of Toronto (Herman) (supra), the grievor complained of an injury and yet continued to work until the end of his shift.   He also made a comment to his supervisor about outside private work, and there was missing equipment that could have been used for this work.   In Telus Corp. (supra), the suspicions of the employer arose over an extended period.   Although his medical restrictions included restrictions on driving, he had been observed driving “frequently” by other employees.   He had cleaned out his desk and was reported to have expressed the expectation that he would be off work for a year.   When he was offered another job with modified duties, he made no effort to determine if he could perform those duties.   Furthermore, his surgery was successful and his doctors could not explain why he still had ongoing problems.    In all the above situations there were significant concerns on the part of the employer giving the employer reasonable and probable cause to institute video surveillance.   Such is not the case here.

[103]    In my view, the employer rushed to judgement on video surveillance.   A more measured approach was open to the employer in the circumstances.   The accident occurred on June 9, 2003, and the employer received the WSIB Fitness Assessment form on June 17, 2003.   The decision to order surveillance was made two days later (on June 19) with no effort to contact Dr. Dickson.   The start of the surveillance was delayed until June 25, 2003, but no efforts were made to obtain further information from Dr. Dickson during that time.   Mr. Sabourin consented to Dr. Dickson being contacted by his employer, and Dr. Dickson had been cooperative in the past.   The employer provided no evidence to explain why it could not have taken the step of calling Dr. Dickson prior to ordering surveillance.   Another option would have been to consider requesting a Health Canada assessment.   I therefore conclude that it was not reasonable, in all of the circumstances, to undertake surveillance of Mr. Sabourin.

IV    Was the Video Surveillance Conducted in a Reasonable Fashion?

[104]    Given my conclusion that video surveillance was not justified in the circumstances, it is not strictly necessary to come to any conclusion on the methods used in that surveillance.   There was not much evidence on the surveillance itself.   Mr. St. Louis testified that the areas of surveillance included public spaces such as parking lots as well as those parts of Mr. Sabourin’s property that were visible from the street.   There was a suggestion by Mr. Champ in cross-examination of Mr. Cyr that Mr. Sabourin expressed concern about cars parked outside his wife’s home daycare.   However, neither Mr. Sabourin nor his wife testified and these concerns remain untested.   Based on the evidence presented, I can only conclude that the video surveillance was conducted in a reasonable fashion.

V    Conclusion

[105]    The videotape surveillance evidence and the report based upon that surveillance are not admissible on the basis that the decision to order surveillance made by Mr. St. Louis was not reasonable in all the circumstances.

[106]    For all of the above reasons, I make the following order:

Order

[107]    The motion of Mr. Sabourin to exclude the videotape surveillance evidence and the report based upon that surveillance is allowed.

February 14, 2006.

Ian Mackenzie,
adjudicator