Canadian Occupational Safety magazine on Eastmond v. CPR

Canadian Occupational Health and Safety Magazine has an interesting analysis of the recent Federal Court Decision in Eastmond v. Canadian Pacific Railway, where the issue was the reasonablness of video surveillance cameras at a railyard. The author discusses the implications of the decision from the labour-side point of view and makes some recommendations:

Across the table - Camera surveillance and the privacy rights of employees:

"What lessons can be gleaned from the decision of Justice Lemieux to better equip workplaces that have electronic surveillance? Employees and employers should be aware that this decision has established jurisdictional parameters for hearing recommendations from the Privacy Commissioner. Paragraph 13 of PIPEDA provides the Commissioner with the discretion to 'investigate a complaint or defer it if he considered it appropriate a complainant should exhaust a grievance [procedure].' This means that in the absence of collective agreement language that does not refer to the privacy rights of employees, employees may refer the recommendation of the Privacy Commissioner to the Courts.

However, in the case where a collective agreement does include privacy right language, PIPEDA has greater legislative authority and may still be referred to the Courts at the discretion of the Commissioner. Therefore, labour relations jurisprudence is still in need of a decision by the Commissioner or the Courts speaking to the issue of whether a labour arbitrator will have precedence to hear a privacy right complaint where such language is in the collective agreement.

The Court has directed respondents to PIPEDA applications to raise at the earliest opportunity the existence of an alternative dispute resolution mechanism available to the parties, such as a grievance procedure. The Court did not go so far as to say the Commissioner would be bound to defer to this other mechanism, but the inference is that alternatives should be contemplated before proceeding to the courts.

One lesson to be learned in the era of privacy rights legislation is that parties, union and non-union, should be negotiating local-level conciliation procedures. This should result in win-win resolutions instead of litigious and adversarial confrontations in the courts. "