Eastmond v. Canadian Pacific Railway, 2004 FC 852

Date: 20040611

Docket: T-309-03

Citation: 2004 FC 852

BETWEEN:

                                                           ERWIN EASTMOND

                                                                                                                                          Applicant

                                                                        - and -

                                                 CANADIAN PACIFIC RAILWAY

                                                                                                                                     Respondent

                                                                        - and -

                                         PRIVACY COMMISSIONER OF CANADA

                                                                                                                                     Respondent

                                                        REASONS FOR ORDER

LEMIEUX J.:

BACKGROUND

[1]                In December 2001, Canadian Pacific Railway ("CP") installed six digital video recording surveillance cameras (the "surveillance cameras") in the mechanical facility area, part of its main rail classification and maintenance yard located in Scarborough, Ontario (the "Toronto Yard"). The mechanical facility at the Toronto Yard is the site of CP's diesel and car repair shops.

[2]                On January 17, 2002, Erwin Eastmond (the "applicant"), a CP shopcraft employee in the diesel shop, a member of the CAW-Canada Local 101 (the "Union"), and a human rights representative for the diesel shop, filed a complaint with the Office of the Privacy Commissioner of Canada (the "Privacy Commissioner") pursuant to the Personal Information and Electronic Documents Act ("PIPEDA"). That complaint reads:

                This letter is to inform your office of certain rights that as an employee of Canadian Pacific Railway and as an Officer of Human Rights Caw are being violated.

The Company has had cameras in the yard to keep track of the movement of the locomotives over the last several years to with [sic] building and dispatching of trains.

Recently Dec 2001, the Company has installed additional cameras and has focussed them on door entrances and exits.

This measure is totally unacceptable because:

1.             it was done in secrecy, without any consultation with the Union

2.             there is no security problem that could justify such an invasion of privacy

3.             this system could be used for monitoring the conduct and work performance of workers and that would be an affront to human dignity

4.             the negative effect on workers' morale, and working climate is dangerous

The Human Rights Office demands that this video surveillance be dismantled without delays and that all workers in the Toronto Diesel Terminal be made whole and receive full redress.

I appeal to your commission to investigate this complaint on the grounds that our rights as Canadians in a free country are being violated.

SPECIFIC LAW VIOLATION, IF KNOWN

The Personal Information Protection and Electronic Documents Act of Canada and all other Laws, Agreement or Rules that may apply. [emphasis mine]

[signed] Erwin Eastmond, Human Rights, Caw Canada

[3]                Two days before, on January 15, 2002, André Corriveau, shopcraft leader in the diesel shop, filed a grievance pursuant to Rule 28 of the collective agreement between CP and the Union. The Union sought the dismantlement of the surveillance cameras. He alleged Rule 43 - human rights of the collective agreement and PIPEDA - were violated.

[4]                On February 4, 2002, Kie Delgaty, a Privacy Officer in the Commissioner's office, wrote to the applicant stating he had been assigned to investigate the complaint and CP had been advised the investigation would focus on its collection of personal information practices.

[5]                On April 12, 2002, CP posted a bulletin on both the diesel shop and car shop bulletin boards advising all employees and managers six security cameras had been installed and would begin taping April 15, 2002, identifying the six locations (front entrance of locomotive shop facing west, two in the parking lot south of the locomotive facility, one in the roadway between one spot and mechanical offices, one on the roadway west end of the car shop and one in the west end materials department storage area). The second and third paragraphs of CP's bulleting state: (applicant's record, page 44)

The intent of the Security system is to protect against theft, vandalism, unauthorized personnel and incidents related. The system is designed to tape over 30 hour periods. Viewing will be by authorized Managers and CP Police only. There is no intent to use this equipment for productivity issues or normal management of the collective agreement, the cameras are purposely positioned away from actual work areas and focussed on general areas where all employees or non employees have access.

All entrance areas around the Mechanical Facility have signs installed as follows,

WARNING

THIS FACILITY IS PROTECTED BY VIDEO AND ELECTRONIC SURVEILLANCE

CANADIAN PACIFIC RAILWAY [emphasis mine]

THE PRIVACY COMMISSIONER'S REPORT

[6]                On January 23, 2003, the Privacy Commissioner issued his report. He determined the complaint was well-founded and recommended CP Rail remove the cameras.

[7]                The Privacy Commissioner first established his jurisdiction by stating PIPEDA as at January 1, 2001, applied to every federal work, undertaking and business holding CP fell within that category. He then stated the information at issue was personal information for purposes of the Act. He referred to section 2 of PIPEDA which defined personal information to be "... information about an identifiable individual ..." stating he was satisfied the information captured by the cameras qualified as information about employees as individuals.

[8]                He then found certain facts including:

(i)         a volume of 1,100 to 1,200 daily freight cars were handled by the Toronto Yard which was also responsible for repairing and maintaining locomotives and cars in the diesel and car shops, the area where the video camera monitoring was taking place;

(ii)        the presence in the mechanical facility not only of CP employees but of personnel from three large contractors, namely, General Motors, ("GM") General Electric ("GE") and Omni-Trax. Staff were in the repair shops twenty-four hours a day, seven days a week;

(iii)       Toronto Yard is private property owned by CP and is not generally accessible to the public. There are warning signs posted at the entrances of the mechanical facility stating the facility is protected by video and electronic surveillance;

(iv)       at the Toronto Yard, CP has three separate camera systems. The Planner Train Services cameras were one of the operational systems; they warn if trains are coming. These cameras are rotating, have zoom capacity, but do not record. They were installed in 2002 after a risk analysis was undertaken regarding workplace safety. The other operational system includes three dispatch cameras with individual monitors and set of controls. The cameras rotate, have zoom capacity, but do not record. The dispatch cameras are used to determine the location of the locomotives, check their orientation and identify where a train will be spotted in the yard;

(v)        as for the six digital video surveillance cameras, the subject of the applicant's complaint, the Commissioner's report states:

There are six digital video cameras stationed at various locations in the yard, specifically in areas of general access and parking. They operate from a central, unmanned console inside the main administrative building of the Diesel Shop. The cameras are fixed, i.e., they cannot be moved or rotated from the main operating console to change the angle of view, do not have zoom capacity, and automatically tape for a 48-hour period.

(vi)        both the union and CP Rail agreed the quality of picture resolution from the surveillance cameras was poor, and that it would not be possible to identify an individual at night if he or she were in a poorly lit area. It was even difficult from the tape to identify an individual during the day.

(vii)      If there were a reported incident of vandalism, theft, or threat to staff security, CP officials would be able to view the recording and it might be possible to identify some of the personal information of anyone captured on the camera, such as the colour of coat or type of hat worn, or other physical characteristics, if the resolution were technologically enhanced.

(viii)      If not interrupted, the cameras automatically record another 48-hour cycle;

(ix)       in response to union concerns, CP repositioned the angle of view of two of the cameras which were originally focussed on the door to the lunchroom and the washroom of one of the shops.

[9]                The Privacy Commissioner then outlined the reasons CP gave him for installing the surveillance cameras. His report on this point reads:

CP Rail gave three reasons for installing the digital video cameras: to reduce vandalism and deter theft, to reduce PC Rail's potential liability for property damage, and to provide security for staff. The company cited two principal incidents of vandalism: $3,000 in damage to welding equipment and several thousand dollars in damage to the video cameras themselves. There have been no incidents of damage to any of the contractors' property to date. CP Rail is uncertain that it would in fact be liable were there such an incident; however, its position is that it is important to be proactive.

With respect to the issue of staff security, CP Rail refers to two incidents where female employees reported feeling vulnerable. The union states that it has not been informed of any such incidents. the union is of the view that security is not really an issue since there are significant numbers of staff who enter and exit the site at approximately the same time when the shifts change.

[10]            The Privacy Commissioner then embarked upon his analysis, i.e. the application of the facts to PIPEDA's legal structure. His focus was on subsection 5(3) of PIPEDA.

[11]            He paraphrased that section to mean that an organization may collect "... personal information only for purposes that a reasonable person would consider are appropriate in the circumstances". The Privacy Commissioner stated he was required to consider both the appropriateness of the organisation's purposes for collecting personal information as well as the circumstances surrounding the determination of those purposes.

[12]            He then recalled CP's stated purposes and said "[A]t first blush it would seem that these purposes are appropriate. But to ensure compliance with the intent of section 5(3), we also need to examine the circumstances. What motivated CP Rail to take such a measure? Do the circumstances merit a video surveillance solution?"

[13]            To determine whether CP's use of surveillance cameras was reasonable in this particular case, he found it useful to set up a four-part test as follows:

• Is the measure demonstrably necessary to meet a specific need?                • Is it likely to be effective in meeting that need?                                               • Is the loss of privacy proportional to the benefit gained?                                • Is there a less privacy-invasive way of achieving the same end?

[14]            The Privacy Commissioner ruled on the four-part test in the following four paragraphs which I cite textually:

While I acknowledge that CP Rail's concerns may be serious, to what degree are they real? Does a specific problem in fact exist at CP Rail's Toronto yard? While there have been a few incidents of vandalism and theft, the most significant incident of damage has been to the video cameras themselves. As for employee security, the union is not aware of any specific incidents of staff feeling vulnerable. CP Rail argues that the video cameras are needed in the light of its potential liability for the damage of property to third party contractors on the site. The company's actual risk from liability claims, however, even in the event of actual damages, is unclear. While there may be a potential for a problem, CP Rail has not demonstrated the existence of a real and specific one.

Will this system be effective? Although there have been no incidents since the video cameras were installed, in the absence of statistics to show a demonstrable need, it is hard to argue that they have been a definite deterrent. In fact, it could be argued that the signs warning people entering the site may have deterred would-be vandals.

Is the loss of privacy proportional to the benefit gained? While I acknowledge that the system provides a poor picture resolution and the cameras are not trained on areas where there is a reasonable expectation of privacy, it may nevertheless be possible to identify an individual during the day, though it would be difficult to do so. Furthermore, I am concerned that the mere presence of these video cameras has given rise to the perception among employees that their comings and goings are being watched, whether or not that is actually the case, and that the adverse psychological effects of a perceived privacy invasion may be occurring.

Lastly, CP Rail does not appear to have evaluated the cost and effectiveness of alternatives, such as better lighting in the parking lots, which could address the issue of employee security, with no effect on employee privacy. [emphasis mine]

[15]            Based on this analysis, the Privacy Commissioner did not believe a reasonable person would consider those circumstances sufficient to warrant taking such an intrusive measure as installing digital video surveillance cameras. The Privacy Commissioner found CP's use of "this type of video surveillance for these purposes", not to be appropriate and CP Rail in contravention of subsection 5(3) of PIPEDA.

THIS PROCEEDING

[16]            On February 13, 2003, the applicant initiated this proceeding pursuant to subsection 14(1) of PIPEDA which reads:

[17]            PIPEDA defines "Court" to mean the Federal Court and its subsection 14(2) provides the application must be made withing forty-five (45) days after the report is sent or within such further time as the Court may allow. Section 17 stipulates the application is to be heard and determined without delay and in a summary way unless the Court considers it inappropriate to do so.

[18]            The applicant sought the following orders:

(i)            An order confirming the report of the Privacy Commissioner of Canada that the Respondent Canadian Pacific Railway not operate and remove the digital video camera system installed at its Scarborough, Ontario main rail yard;

(ii)           An order that any records including any videotape recordings in the possession, control or custody of Canadian Pacific Railway generated by the aforesaid digital video camera system be destroyed forthwith;

(iii)          An order that the respondent Canadian Pacific Railway cease and desist from installing non-operational cameras or camera systems in and around its workplaces in Canada, without the consent of the employee's collective bargaining agent;

(iv)          Such further and other relief as may be found to be appropriate by this Honourable Court;

(v)            His costs of this application. [emphasis mine]

[19]            The applicant's counsel, quite correctly, at the hearing, did not press item (iii).

PIPEDA'S LEGISLATIVE STRUCTURE

[20]            PIPEDA evidences a unique legislative structure. There is the Act itself and then there is Schedule 1 to the Act ("Schedule 1"). Subsection 5(1) of the Act reads:

5. (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

5. (1) Sous réserve des articles 6 à 9, toute organisation doit se conformer aux obligations énoncées dans l'annexe 1.

[21]            PIPEDA's Schedule 1 incorporates integrally the Canadian Standards Association ("CSA") National Standard of Canada entitled "Model Code for the Protection of Personal Information, CAN/CSA-Q 830-96".

[22]            One of the objectives of the provisions of the Act, as opposed to Schedule 1, is to qualify or modify the principles set out in CSA's national standard model code reproduced in Schedule 1.

[23]            The Act itself is divided into a number of parts as follows:

(1)        Part 1 is entitled "Protection of Personal Information in the Private Sector";

(2)        Division 1, of Part 1, is entitled "Protection of Personal Information" and covers such matters as appropriate purposes (subsection 5(3)), collection without knowledge and consent (subsection 7(1)), use without knowledge and consent (subsection 7(2)), and disclosure without knowledge or consent (subsection 7(3));

(3)        Division 2 of Part 1 is entitled "Remedies" and covers matters such as the filing of complaints (section 11), investigation of complaints (section 12), the Privacy Commissioner's Report, (section 13), the circumstances where the Privacy Commissioner is not obligated to prepare a report (subsection 13(2)) and the hearing by the Federal Court (sections 14 through 17);

(4)        Part 1 has two other divisions dealing with audits and a general division dealing with confidentiality and other matters concerning the status of the Privacy Commissioner.

[24]            The body of PIPEDA contains other parts. Part 2 deals with electronic documents. For the purpose of these reasons, I do not need to go further in the description of the others parts of PIPEDA.

[25]            Schedule 1 follows the provisions described above.

RELEVANT STATUTORY PROVISIONS

(a)        Leading up to Schedule 1

[26]            Sections 3, 4 (but not 4.1), 5, subsection 7(1), 11, 13, 14, 15, 16 and subsection 17(1) of the PIPEDA read:                           

(b)       Schedule 1

[27]            The Schedule to PIPEDA contains of a number of principles such as accountability, (article 4.1), identifying purposes (article 4.2), consent (article 4.3), limiting collection (article 4.4), limiting use, disclosure and retention (article 4.5), accuracy (article 4.6), safeguards (article 4.7), openness (article 4.8), individual access (article 4.9) and challenging compliance (article 4.10).

[28]            Associated with each principle are a number of rules.

[29]            Principle 2 "Identifying purposes", paragraph 4.2.2, Principle 3 - "Consent" and paragraph 4.3.1 and 2 read:

THE EVIDENCE

(a)       From CP

[30]            CP filed four affidavits in opposition to the applicant's application. These affidavits were from Ronald Jourdain, Service Area Manager (Mechanical) - Ontario South, the affidavit of Gerry Moody, Chief of Canadian Pacific Railway Police Service ("CP Police Service"), the affidavit of Rohan Gosine, Deputy Service Area Manager - Ontario South, and the affidavit of Thomas Wojcik, Service Improvement Specialist - mechanical facility at CP's Toronto Yard. All deponents were cross-examined by counsel for the applicant.

(i)         The affidavit of Ronald Jourdain

[31]            Ronald Jourdain made these points in his affidavit:

(1)        He was the one at CP who made the decision to install the surveillance cameras with Mr. Gosine being responsible for their precise location.

(2)        CP's purposes for installing the surveillance cameras were:

7.             When CPR made the decision to install the Digital Cameras in late 2001, CPR's intention was to use them as a deterrent against, and as a possible investigative tool for, incidents of theft, harassment, vandalism and unauthorized entry into the Mechanical Facility. CPR's objective was to create a safer, more secure workplace, while at the same time minimizing CPR's potential civil and contractual liability for injuries or losses suffered by third parties. It was never CPR's intention to use the Digital Cameras to monitor the work performance of its employees. [emphasis mine]

(3)        He described the surveillance camera locations:

9.             None of the locations where the Digital Cameras were installed are actual work areas, but rather are areas of general access, including several parking lots and roadways.

(4)        The access roads to the Toronto Yard are unguarded and are easily accessible because its perimeter has no fencing around it and, in light of those facts:

CPR determined that installing the Digital Cameras at various public access points, and posting clear, visible signs warning of video surveillance at the entrances to the Mechanical Facility, would help present a deterrent to would-be wrongdoers.

(5)        The images produced by the surveillance cameras are not monitored but the recording capability allows "the Mechanical Facility's management and the CP Police to review the recordings in the event that any suspicious activity or incident is reported" (respondent's record, page 104). He continued: (respondent's record, page 104)

11.           The Mechanical Facility employees have been informed that the images produced by the Digital Cameras are not continuously monitored and will be reviewed only if an incident is reported to management that the cameras would have been likely to capture. [emphasis mine]

(6)        There were changes at the Toronto Yard which contributed, in his opinion, to the need for digital cameras which he said "was rooted in CPR's concerns regarding safety, security and potential liability" confirming the particular timing of the installation "was not instigated by the occurrence of a specific event, but rather a change to the overall infrastructure of the Mechanical Facility itself".

(7)        One major change was a decision to centralize in the mechanical facility at the Toronto Yard the tasking of several functions relating to diesel and car repair which previously had been carried out in several areas of the Toronto Yard. CP built two new parking lots near the mechanical facility to handle the increase of activity around the facility. He stated at paragraph 15 (respondent's record, page 105):

15.           CPR also built two new parking lots near the Mechanical Facility to handle the increase in activity around the Mechanical Facility. These new parking lots can handle an additional 400 employees and they are one of the main areas where the Digital Cameras are used. On off-shifts and weekends, there are very few people in these areas at any given time. Prior to the construction of these parking lots, there was a bus service provided by CPR for its employees which would shuttle them to another parking lot further away from the Mechanical Facility. This bus service has been discontinued at an approximate annual savings of $360,000.

(8)        Another change was the introduction by CP of contract supervisors in the diesel shop to oversee the repair and maintenance of their respective locomotives, i.e. the locomotives which CP had bought from GE and GM with Omni-Trax supervising the repair of other CP owned locomotives. This introduction created a tension between CP employees and contractor employees because CP reduced its work force when it contracted out the supervision of locomotive maintenance. Union officials complained about its members being supervised by "outsiders". This level of tension was relevant to his decision to install digital cameras.

(9)        The presence of contract supervisors required CP to allocate them office space and tool and equipment storage areas which pointed to possible CP liability if CP did not respect contractual obligations. He concluded at paragraph 21 (respondent's record, page 107):

21.            The transition to contract management of the Diesel Shop meant that CPR lost some control over the human and vehicle traffic in and out of the Mechanical Facility. The Digital Cameras, in conjunction with the installation of improved lighting in the parking lots, were the security measures that were feasible, available and taken by CPR at the time.

(10)      He concludes these changes increased activity in the mechanical facility and provided access to unknown personnel brought to the site by the contractors (respondent's record, page 107):

22.           ...This, combined with the fact that there is now a greater amount of equipment (some of it owned by the contractors) located in the Mechanical Facility, caused CPR management (including myself) to become more concerned about security, safety and liability issues.

(11)      The possibility of hiring security guards to patrol the areas in and around the mechanical facility was considered but discounted because "I knew it would be virtually impossible to obtain the necessary approval for the additional operational budget" (respondent's record, page 107). He acknowledged purchasing digital cameras and posting warning signs was more cost effective as opposed to the ongoing operational cost of hiring security guards. The cost of the digital cameras were approximately $30,000: "[R]ather than waiting for a serious incident to occur, I took the initiative to ensure the security and safety of CPR and contractor employees and equipment by installing the Digital Cameras and warning signs" (respondent's record page 108).

(12)      "By directing the digital cameras at general access areas and not actual work areas, I attempted to make a reasonable, proactive and good faith effort to address legitimate concerns regarding safety, security and liability at the Mechanical Facility in a manner that respects employee privacy".

[32]            In the balance of his affidavit, he detailed the security threats experienced by CP throughout its network and at the Toronto Yard specifically. He produced weekly incident reports prepared by CP's police criminal investigation unit and stated (respondent's record, page 108):

26.           ... The types of offences committed against CPR and the property of its customers include crimes such as theft, vandalism, weapons use, drug and illegal alien trafficking, equipment sabotage, computer crime, fraud, arson and trespassing.

It was not uncommon for a single weekly synopsis to contain a listing of 30 to 40 incidents. He also appended to his affidavit a copy of CP's initial mishap reports.

[33]            He then turned to the security threats specific to the Toronto Yard and its mechanical facility and stated according to a CP police report, between January 1998 and April 2003, there were a total of 148 incidents reported as occurring within the Toronto Yard, adding "[T]here may be more that went unreported". The reported incidents included, amongst other things, "break-ins, thefts, trespassers, mischief, workplace violence, harassment, tampering with equipment, vehicle accidents and personal injury" (respondent's record, page 109). At paragraph 30 Mr. Jourdain deposed: "In light of CPR's concern about the safety and security of its work place, and about its potential liability in relation to such incidents, these incidents, including those described below, were factors in CPR's decision to install the Digital Cameras".

[34]            He confirmed CP police carried out periodic patrols of the Toronto Yard and CP police responded to calls for service there. He confirmed, however, the number of CP police officers stationed in Southern Ontario was limited and there were no CP police officers permanently based at the Toronto Yard.

[35]            He focussed specifically on the problem with trespassers in the Toronto Yard, with the issue of theft of equipment and sexual harassment/assault on female employees. CP had instituted a zero tolerance policy for trespassing but candidly admitted despite the periodic presence of CP police and CP police's zero tolerance policy, there always had been problems with unauthorized visitors at the Toronto Yard. Some members of the public use the Toronto Yard's access roads as shortcuts to avoid traffic congestion on public roads around the Toronto Yard. There were a number of problems at the mechanical facility including the disappearance and presumed theft of contractor-owned tools and equipment.

[36]            On the issue of sexual assault/harassment, he mentioned the mechanical facility operated on day, afternoon and night shifts and was overwhelmingly composed of male employees with approximately fifteen female employees assigned there. When he was first assigned to manage the mechanical facility in May 2000, he was made aware of incidents involving female employees of the mechanical facility, both of which related to sexual harassment and assault with one resulting in CP reaching a substantial settlement.

[37]            At paragraphs 46 and 47, he enumerated seven instances of theft and vandalism around the mechanical facility during 2000 and early 2002.

[38]            He concluded his affidavit by mentioning the impact of 9/11 and the concern about terrorist activity noting CP's business involves a significant amount of cross-border transportation of bulk goods, including dangerous and hazardous substances such as chlorine, propane, anhydrous ammonia and military equipment.

(ii)        The affidavit of Rohan Gosine

[39]            Mr. Gosine's affidavit touched upon many of the subjects covered by Mr. Jourdain.

(1)        Shortly after he started as Deputy Service Area Manager at the Toronto Yard, he met with the Project Manager at the mechanical facility to discuss the possibility of installing a digital camera system because of his experience at CP's railyard in Golden, British Columbia.

(2)        His discussion was driven by a number of factors including the increased volume of traffic in and around the mechanical facility as a result of centralization and the introduction of contract management; the increased occurrence of incidents of theft and vandalism there and CP's potential liability to third parties; the creation of new parking lots, at least one of which was relatively isolated, close to the mechanical facility for use by employees and related safety issues as well as incidents of harassment of female mechanical service employees.

(3)        After obtaining budget approval, he purchased the six fixed digital cameras choosing not to purchase the special low-light infrared lenses that would improve the picture quality of the images captured by the cameras at night, considering the special lenses not to be necessary because the digital cameras were installed in conjunction with improved lighting in and around the mechanical facility.

(4)        It was determined the cameras should and would be placed in areas of general access because it was in those areas where incidents of the type CP sought to defer had occurred or, in their opinion, were likely to occur. At respondent's record, page 140, he stated "[A]t no time did we intend to direct the cameras so as to capture the work performance of CPR employees".

(5)        He then tied the location of each individual surveillance camera to an incident or potential incident of theft, vandalism, or assault. For example, CP initially determined the general access area in front of and to the west of the diesel shop was an appropriate area for surveillance because tools had disappeared and were presumed to have been stolen from GM's tool storage area. "However, when the union pointed out that the camera, so directed, captured an image of the doorway to the diesel shop's lunchroom and washrooms, we had ... redirect the camera to overlook GM's storage shed" (respondent's record, page 141).

(6)        CP chose to install three digital cameras to overlook the mechanical facility's parking lots, one of which is a lot for CPR-owned vehicles and the other a lot for CP employee vehicles. In terms of CPR-owned vehicles, surveillance of that lot was deemed to be necessary because of a noticeable increase in incidents of vandalism to CP vehicles during 2001. Two digital cameras were installed in the lot located to the south of the diesel shop because it was relatively dark and isolated. The aim was to protect the personal safety of CP employees and CP's concern was prompted in part by a 2000 complaint by a female employee.

(iii)       The affidavit of Gerry Moody

[40]            Gerry Moody, as noted, is the Chief of the Canadian Pacific Railway Police Service (the "Police Service") and has been so for the last seven years. The Police Service is responsible for crime prevention and security of CP's operations. In his affidavit, he made the following points:

(1)        The Police Service records between 16,000 and 17,000 rail-related incidents each year in North America.

(2)        CP has always had to be concerned with security on its property and has a dedicated police force to secure its operations and property. In light of 9/11, CP has come under increased pressure and scrutiny for the level of security provided to its customers, workers and various levels of government both in Canada and the United States.

(3)        It is a normal occurrence in CP rail yards across Canada to experience incidents of trespassing leading to serious injury to trespassers, including amputation and death.

(4)        It was not unusual for CP's Police Service to receive numerous complaints of thefts, vandalism, threats and breaking and entering across the country including the Toronto Yard.

(5)        It has always been a priority for CP to ensure a safe and secure working place for its workforce.

(6)        CP was in an era of budgetary constraint which made the expansion of patrols of the Toronto Yard unlikely in the future. At respondent's record, page 6, he states:

8.             The Toronto Yard is approximately 432 acres in size and is both difficult to patrol and cannot be fully secured against public access or crime by methods conventional to private property security without incurring unreasonable expense.

(7)        It would require approximately five full-time officers on a twenty-four hour, seven days a week rotation to do an adequate job of patrolling the Toronto Yard. Historically there had been as many as four police officers assigned to the Toronto Yard but currently, there are from one to two police officers assigned there who provide mobile patrols. None of those officers are based in the Toronto Yard nor do they exclusively spend their time in the Toronto Yard.

(8)        The nature of goods carried by CP is unique in many respects:

(a)            The goods transported constitute property entrusted in large volumes by a range of private and public parties. Unlike the security considerations of other businesses, the safeguarding of railway freight is a matter of wider economic and public interest than that of the rail company itself.

(b)           Unlike other private property, these goods are in transit over long distances thus requiring sophisticated monitoring.

(c)            Beyond the sheer quantity of goods being moved, the nature of the goods carried can be extremely dangerous involving toxic and hazardous materials .... If tampered with ... serious public danger can occur.

(d)           There is a significant volume of cargo which is desirable and a likely target for theft or vandalism.

(9)        Efforts were being made to improve the safety and security of CP's workforce through initiatives such as requiring new hires to clear a security check.

(10)      Following 9/11, the US Department of Transport issued an advisory message in regard to potential terrorist attacks. This heightened concern and gave as an example a suspicious device attached to a liquid propane gas tank in the Alyth Yard in Calgary on March 15, 2002.

(11)      At respondent's record, page 7, he states:

14.           ... Video surveillance is designed to address criminal activity by deterring crime, detecting crime and assisting in identifying suspects in post incident investigations. Video surveillance works to deter crime by increasing a potential criminal's perceived risk of getting caught before they are able to complete the crime and escape with a reward with a reward.

15.           Certainly video surveillance is a valuable tool for the Police Services in controlling criminal activity throughout its railyards including the Toronto yard. It is also of assistance in detecting trespassers and preventing harm to trespassers and CPR's workforce. [emphasis mine]

(12)      The Police Service has sought the assistance of employees of CPR with a roll out of an employee awareness program designed to maintain a safe CPR workplace by providing employees with practical techniques and knowledge to safely deal with trespassers, suspicious objects and situations and effectively report incidents to the Police Service.

(13)      Most crimes committed against the railway, its employees and customers start with unauthorized access by an intruder.

(iv)       The affidavit of Thomas Wojcik

[41]            Thomas Wojcik currently works at the mechanical facility in the Toronto Yard and is responsible for improving services there in terms of cost reduction and facility rationalization and also responsible for developing, recommending and implementing innovations to produce a safe working environment for CP employees and contractors.

[42]            He has been involved extensively with the operation of the six digital cameras. In his affidavit he states:

(1)        The Toronto Yard spans approximately four kilometres east-west and approximately two kilometres north-south. It covers 432 acres of land and has two vehicle entrances.

(2)        The Toronto Yard is surrounded by a number of public roads and numerous industrial complexes unrelated to CP and in his opinion due to its size it would be difficult, if not impossible, to keep trespassers out of the Toronto Yard through traditional policing and security measures without incurring unreasonable expenses.

(3)        The Toronto Yard has a complicated network of more than 144 kilometres of track sub-divided into a number of yards. There are approximately 9.5 kilometres of roadway within the Toronto Yard which are used by CP vehicles, employee vehicles, contractor vehicles and supplier vehicles to access various areas of the Toronto Yard. These roadways are also used by trespassers as a shortcut and by " « rail fans » who come to the Toronto Yard to watch the activity of the trains".

(4)        There are approximately 900 CP employees at the Toronto Yard spread over three shifts and, in addition, there are a number of train crews and contractors who come in and out of the Toronto Yard on a daily basis.

(5)        At respondent's record, page 47, he writes:

16.           The Mechanical Facility lies at the heart of the Toronto Yard and consists of the Diesel Shop, the Car Shop, the diesel service island, the spot car repair station, an ancillary building housing offices and a garage, several storage sheds and fuel stations. Among other things, there are oil tanks, diesel tanks, and methanol tanks in and about the Mechanical Facility.

(6)        There are approximately 300 people over three shifts working in the mechanical facility, 150 working out of the diesel shop and the other half out of the car shop.

(7)        There are eleven operational cameras in the Toronto Yard enabling CP coordinators to assess the status of various trains in the classification yard. These are known as GYO cameras. The range of GYO cameras does not extend to the mechanical facility or to the main lines. With respect to the mechanical facility, there were five Diesel Dispatch Planner cameras responsible for coordinating the locomotive and railcar maintenance services. Despite the zoom and pan capabilities of the planner cameras, the mechanical facility's parking lots are generally out of their range of view.

(8)        The six cameras at issue in these proceedings were described as "non-operational safety/security fixed cameras". He described their features and their location, aspects which have already been mentioned in these reasons.

(v)         The cross-examinations of the CP deponents

[43]            I take from the cross-examination of Mr. Jourdain the following:

(1)        When questioned whether prior to installing the video equipment CP gave consideration to fencing either all or part of the Toronto Yard, he answered at applicant's record, page 63, it had been considered in the past and when he was asked if cost estimates had been obtained, he answered at the same page of the transcript:

                A.            I have never seen estimates of costs. I can just talk to ... discussions with service area managers, local police, but it is very difficult to, as anybody knows, to keep people out with fences. We spend a lot of money in CP rail with fences that do not keep out individuals. They just come through.

He confirmed no consideration had been given to just fencing in the mechanical facility.

(2)        He confirmed at page 65 of the applicant's record CP might be liable to GM if GM loses tools and the loss is as a result of CP's negligence or omissions and liability to CP would depend upon the circumstances.

(3)        He stated CP had costed out hiring security guards to patrol the mechanical facility and confirmed installing video cameras at an approximate cost of $30,000 made the choice of hiring security guards very much more expensive (applicant's record, page 69). He could not remember specifically what those cost estimates were.

(4)        At applicant's record, page 70, he confirmed employees would be captured on the cameras while entering or leaving their particular work area even if the cameras were not pointed at actual work areas. Mr. Jourdain added visitors, contractors, and anyone in those areas would also be captured.

(5)        He was asked whether there were or were not particular incidents which gave rise to the installation of the cameras. Mr. Jourdain responded as follows at applicant's record, page 75:

                A.            I guess my concern is more the big picture concern. And with the infrastructure changes and changes to how we manage locomotives and how we ... I had to take into consideration also how we changed on the car Mechanical Facility, changing of the planners, building structure changes, new materials. Not only our materials, CP materials, OmniTrax's materials, GM's materials. My concern was more the big picture. How do we protect everybody's interests around the Mechanical Facility.

(6)        At pages 76 and 77 of applicant's record, he confirmed trespassers who drive their vehicles through the Toronto Yard might be caught by the video cameras.

(7)        On redirect, he was asked whether fencing the mechanical facility would be effective against vandalism and theft. He answered it would be very difficult to fence the mechanical facility because of all of the incoming and outgoing tracks and roads (applicant's record, pages 98 and 99). He concluded fencing the mechanical facility would not be feasible for CP's operations at the Toronto Yard.

(8)        At applicant's record, page 100, he confirmed there had been complaints filed by CP employees with respect to harassment in the workplace under the Canadian Human Rights Act in addition to the two complaints which he referred to in his affidavit.

(9)        Also on redirect, he stated terrorism threats after 9/11 had an impact where the cameras would be placed (applicant's record, pages 101 and 102).

(10)      At applicant's record, page 102, he expressed the view the cameras would have been of value in the investigation of the loss of equipment and vandalism mentioned in his affidavit.

[44]            I take from the cross-examination of Gerry Moody the following:

(1)        The number of police officers on his staff totalled 70 with nine officers in Toronto and no police officers were actually stationed in the yard (applicant's record, pages 159 and 160).

(2)        He was not consulted about the option of installing video surveillance cameras with recording capability in the Toronto Yard (applicant's record, page 162).

(3)        He confirmed there was a reduction of the policing resources within CP and that, on occasion, CP might employ security guards in other locations than the Toronto Yard (applicant's record, pages 161, 162 and 163).

(4)        He estimated the expenses associated with hiring a police constable, including equipment, to be approximately $125,000 and added at applicant's record, page 167, even if CP hired five full-time officers for the Toronto Yard, there would still be a need for the cameras because the cameras "provide a very important support role in security in any of our facilities where they are installed". That is because police officers are patrolling property and are constantly called away. The cameras are there when the police officers are not in the area.

(5)        In terms of the use by the police of the cameras, he stated at the same page that if an incident occurs in the Toronto Yard, the police would be in a position to "be able to review the tapes to assist them in their investigation, so they become an investigative aid to the police. As well, the mere fact that the cameras are there act as a deterrent in the first instance".

[45]            I take from the cross-examination of Rohan Gosine the following:

(1)         He confirmed one of the instances of sexual harassment occurred both inside the diesel shop and outside at a drinking establishment.

(2)        At applicant's record at page 116, he confirmed the cameras would capture employees while they are going into their work location. While denying the cameras would record some or all employees while they were actually working, he acknowledged the cameras might capture an employee actually working if he/she was working in the areas the cameras are aimed at. For example, if an employee was driving a forklift or pushing some parts or if some repair and maintenance was done outside the repair shops (applicant's record, page 116).

(3)        He confirmed the cameras would capture employees leaving the building until they were out of the camera's footprint.

[46]            From Thomas Wojcik's cross-examination, I take the following:

(1)        He agreed the cameras would produce identifiable images of persons captured (applicant's record, page 141).

(2)        He confirmed the recording equipment and the monitor is in a locked cabinet but nobody else had the key (applicant's record, pages 141 and 142).

(3)        He agreed the cameras would capture at least some employees entering their work location, leaving their work location and, on some occasions, engaged in the work itself (applicant's record, page 143).

(b)        For the applicant        

(i)         Mr. Corriveau's affidavit

[47]            The applicant, Erwin Eastmond, did not swear an affidavit in support of his application. Rather, that affidavit was provided by André Corriveau, a CP employee since 1972 who is also the chairperson responsible for representing the shopcraft employees in the diesel shop.

[48]            He described CP as operating a fully integrated class-1 railway providing rail and intermodal freight transportation services over a 14,000 mile network across Canada and the Midwest and Northeast United States. He described the Toronto Yard, the number of its employees, the tasks performed by shopcraft employees confirming three shifts for the diesel shop and the car shop, shifts being from 7:00/8:00 a.m. to 3:00/4:00 p.m., 3:00/4:00 p.m. to 11:00 pm/and midnight to 7:00/8:00 a.m.

[49]            Workers employed in the car and diesel shops come to work by bus or car and may park their cars in lots. They walk to the car and diesel shop from the parking lot.

[50]            While CP has police who are designated Special Rail Constables, CP does not post such constables in and about the premises of the diesel or car shops at the Toronto Yard and he was unaware of any rule or circumstance which would preclude CP from so posting CP police.

[51]            At paragraph 19 of his affidavit, Mr. Corriveau states:

19.           In the past 30 months, the respondent has not reported to me, as chief union representative in the diesel shop, any significant problem, trend, or unusual occurrences of or regarding theft of workers' personal items in the diesel shop.

[52]            He makes reference to GM and Omni-Trax as contract supervisors in the diesel shop and states neither manager of those companies "have reported to me any concern regarding the theft of their corporations' property or the lack of security regarding their operations" mentioning "it is those companies who supply CP workers in the diesel shop with tools and safety equipment required to do their jobs".

[53]            At applicant's record, page 20, paragraph 25, Mr. Corriveau states:

25.           As a responsible union official, I am able to report that in the past 40 months, there have been no workers discharged from the diesel shop due to possession of drugs and/or alcohol, participation in fights or similar acts of aggression or violence.

[54]            Prior to going on vacation in early December 2001, no agent or representative of CP spoke to him about any plans to install surveillance cameras or the need to do so nor did they approach his colleague in the car shop.

[55]            At paragraphs 29 and 30 of applicant's record, pages 21 and 22, he writes:

29. I confirm that the corporation, prior to the installation of these impugned video surveillance cameras never approached me to highlight any concern about the increased occurrence of unsafe acts in and about the workplace.

30. In my view, there has been no irregular, undue or increased record of unsafe events or acts in and about our workplace in the past 3 years.

[56]            He confirmed the applicant's filing of a complaint with the Office of the Privacy Commissioner on January 17, 2002.

[57]            On January 27, 2002, he delivered a grievance in connection with the matter to Blaine Forbes, a Human Resources Manager with CP and that subsequently, on January 29, 2002, the Union outlined its concerns in a step two grievance submission filed with the General Manager, Operations, CP, at the Toronto Yard.

[58]            On March 21, 2002, CP replied to the grievance about the Union's concern on camera surveillance. That reply reiterated CP's reason for the decision to put the video camera system in the Toronto facilities. They related to incidents over the past months of the theft of a welding machine, vandalism involving forced entry into locked doors, recent complaints about material thefts, protection liability regarding third party injury, increased third party traffic in core areas due to warranty service agreements, complaints of unauthorized personnel on the property and increased security in parking lots in particular for female employees in off shift.

[59]            Mr. Corriveau then referred to Mr. Kie Delgaty's appointment as an investigator for Mr. Eastmond's complaint. Mr. Delgaty came to the Toronto Yard on July 11, 2002, and he participated at a meeting with him along with Mr. Eastmond and another union representative, a meeting which lasted approximately 90 minutes. He states at paragraph 42 of his affidavit (applicant's record, page 25,):

42.           Mr. Delgaty interviewed us. The applicant explained that the impugned surveillance cameras are not designed or used to protect the safety of yard workers in relation to the movement of rail cars or locomotives. It was explained to Mr. Delgaty that the corporation has a sophisticated system of radio communications which is used to ensure the safe movement of rail cars and locomotives.

[60]            Mr. Delgaty visited the diesel shop and viewed at least two of the impugned surveillance cameras in their presence. He understood Mr. Delgaty also met with CP officials on July 11, 2002.

[61]            He confirmed the cameras had no rotating capacity and the monitor is not designed to display live pictures, that it is not accessible to anyone except the manager of the diesel shop. The cameras do not track rail cars or locomotives as they progress through the yard.

[62]            He says Mr. Delgaty came to the Toronto Yard on November 19, 2002, and on this occasion, the investigator met with both the Union and corporate representatives.

[63]            Mr. Delgaty posed four questions to the persons present and sought their input. His first question was:

What is the problem that the use of the surveillance cameras are designed to remedy?

[64]            CP's representative replied the surveillance camera system was to address the problem of vandalism and that he replied on behalf of the applicant and the Union the company had not reported any particular problem with vandalism to the Union in the past.

[65]            Mr. Delgaty's second question was:

If the company uses this surveillance camera system will it resolve the identified problem?

[66]            Mr. Corriveau states the company representative answered in the affirmative and he replied there was no data or report to justify such an answer.

[67]            Mr. Delgaty posed his third question:

Is the violation of the privacy right in question justified by the identified problem?

[68]            Mr. Corriveau states the company representative replied in the affirmative and suggested it would prepare and provide and report regarding vandalism at the premises of CP at the Toronto Yard. He states neither the Union nor the applicant has been provided with such a report.

[69]            Mr. Delgaty posed his fourth question asking:

Is there another way to resolve the problem?

[70]            He states one of the CP representative said CP management had cut their police staff and associated police services and one of the reasons CP decided to implement a surveillance system was because it was more cost effective and productive to use cameras than CP police constables.

(ii)        Mr. Corriveau's cross-examination

[71]            I take from Mr. Corriveau's cross-examination the following:

(1)        He is Shop Chairman of the diesel shop; there is also a Shop Chairman for the car shop and generally he would have no dealings with car shop employees (respondent's record, page 151).

(2)        The applicant is a human rights representative for the diesel shop.

(3)        He conceded at respondent's record, page 176, the managers at GM, GE and Omni-Trax had no obligations to talk to him about theft and vandalism.

(4)        He agreed that while no workers were terminated from the diesel shop due to possession of drugs, alcohol, etc., some workers were disciplined for doing so (respondent's record, pages 176-177).

(5)        He agreed there was nothing in the collective agreement which would require CP to speak to him respecting plans to install surveillance camera systems (respondent's record, page 181).

(6)        He agreed the level of awareness about threats would have risen after 9/11 (respondent's record, page 184).

(7)        His comment about no increases in incidents was confined to the diesel shop.

(8)        He qualified the comment he made about Mr. Forbes' letter to the effect the video system would be used against employees. What he took from Mr. Forbes was if a worker does what he is supposed to do, he/she will not have anything to fear from the video system (respondent's record, page 187).

(9)        Mr. Corriveau was asked several questions about the meeting Mr. Delgaty held jointly with CP and he and Mr. Eastmond. He agreed it was possible CP's spokesperson may not have confined the need for surveillance camera to vandalism. He said that was his recollection but he did not have any notes and could not confirm his view.

(10)      He confirmed the union was representing Mr. Eastmond for the purposes of this application (respondent's record, page 198). He confirmed the union had filed a grievance about the installation of the surveillance cameras. He, in fact, was the union officer who filed the grievance and confirmed the grievance initiated by him was because of his concern there had been a violation of the collective agreement by implementing the video surveillance cameras (respondent's record, page 201). He also confirmed his grievance had nothing to do with the operational cameras.

(11)      He confirmed the grievance had been filed January 15, 2002 (respondent's record, page 204).

(12)      He confirmed the applicant's complaint with the Privacy Commissioner was filed two days after he had filed his grievance and both the grievance and the complaint relate to the same cameras.

(13)      He confirmed he did not take the grievance to step two (respondent's record, page 204). It was not within his mandate to go to step two; that was the responsibility of his vice-president. He confirmed the vice-president engaged step two.

ISSUES RAISED

(a)        Issue 1 - jurisdiction

[72]            CP states this Court does not have jurisdiction (or should decline it) to hear the applicant's application because the Privacy Commissioner lacked jurisdiction to entertain the applicant's complaint.

[73]            The essence of Mr. Eastmond's complaint to the Privacy Commissioner, its essential character, according to CP, evidences a workplace dispute arising from the interpretation, application, administration or violation of the collective agreement entered into between CP and the Union.

[74]            In the circumstances coupled with by reference to various provisions of the Canada Labour Code, CP argues the dispute gives rise to the exclusive labour arbitration model espoused by the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

[75]            Both counsel for the applicant and counsel for the Privacy Commissioner disagree. They point to this Court's statutory jurisdiction under section 14 of PIPEDA. They also point to subsection 13(2) of the statute which provides the Commissioner is not required to prepare a report if the Commissioner is satisfied the complainant ought first to exhaust grievance or review procedures otherwise reasonably available. They say Weber, supra, has no application in the circumstances and, in addition, cite several cases for the principle of concurrent jurisdiction in this field of dual regulatory regimes.

(b)        Issue 2 - the nature of the proceedings

[76]            One of the issues raised was what kind of proceeding was before the Court under section 14 of PIPEDA and how much deference is owed to the Privacy Commissioner's findings.

[77]            Both counsel for CP and counsel for the Privacy Commissioner say the proceeding before the Court is a de novo hearing on fresh evidence. The application to this Court by the complainant is to determine whether CP has breached its privacy obligations under PIPEDA. Counsel for the Privacy Commissioner argues some deference should be given to the Privacy Commissioner's determination in the area of his expertise while CP would give, in the circumstances, no weight to the Privacy Commissioner's findings because he argues the Privacy Commissioner erred in substantial ways.

[78]            Counsel for the applicant's position is the hearing before me is akin to judicial review with the standard of review of the Privacy Commissioner's being reasonableness simpliciter.

(c)        Issue 3 - Did CP breach its PIPEDA obligations?

[79]            Approaching this fundamental question on the merits, all parties were remarkably in agreement on a number of points.

[80]            They agreed for this Court to find CP breached its PIPEDA obligations, two sub issues need to be dealt with first: were CP's purposes appropriate and second, did CP require the applicant's consent to collect his personal information?

[81]            The first sub-issue is whether CP's purpose in installing the surveillance system in the area of the mechanical facility at the Toronto Yard was justified in the sense that personal information, under PIPEDA, cannot be collected by CP unless objectively speaking a reasonable person would consider the reasons for the surveillance and monitoring appropriate or legitimate in the circumstances.

[82]            All parties agree that to determine the purpose question, in the case of camera surveillance, the four part test devised by the Privacy Commissioner is an appropriate analytical base.

[83]            Where the applicant and CP disagree is whether the evidence before me was sufficient to enable CP to discharge its burden. CP says it has satisfied its burden for two reasons. The Commissioner erred in his appreciation of the facts before him and, in addition, his investigation was not thorough. In any event, and more importantly, CP argues, I have additional evidence before me which the Privacy Commissioner did not have.

[84]            Counsel for the applicant argues the evidence before the Privacy Commissioner and before me clearly indicates CP had insufficient reasons to install the surveillance camera system and, in any event, clearly failed to consider alternatives to this intrusive device.

[85]            The Privacy Commissioner took no position on whether the evidence before him, or before me, satisfied the four-part test.

[86]            In terms of sub-issue 2 dealing with consent, CP argues, under PEPIDA, it did not need the applicant's consent to install the surveillance cameras. CP's argument hinges first on the wording of clause 4.3 of the CSA model code which provides for an exception to the requirement that knowledge and consent of the individual are required for the collection of personal information. That exception is where such knowledge and consent would be inappropriate. CP pointed to a number of factors why, in this case, obtaining consent from all persons caught in the video of the surveillance cameras, would be inappropriate.

[87]            As a back-up argument, CP argues, in any event, it qualifies for the exemptions set out in the provisions of paragraph 7(1)(b) of the Act itself whose marginal note reads collection without knowledge and consent.

[88]            Counsel for the applicant and the Privacy Commissioner, as a matter of statutory construction, disagree with the self-standing attribution which CP would give to the words "except where inappropriate" in clause 4.3 of the model code contained in Schedule 1. They argue these words are linked to section 7 and section 7 gives consent to and state the only four exceptions where knowledge and consent would not be appropriate. They argued none of those exemptions applied.

ANALYSIS

Issue 1 - jurisdiction

[89]            There are a number of reasons for rejecting CP's challenge on jurisdiction.

[90]            First, in terms of this Court's jurisdiction, it is statutory. To engage it, section 14 of PIPEDA simply requires two conditions precedent:

(1)        a complainant applying to the Court for a hearing; and

(2)        on any matter in respect of which the complaint was made or that is referred to in the Commissioner's report.

Both conditions are met.

[91]            In Maheu v. IMS Health Canada, 2003 FCA 462, a case engaging PIPEDA, Justice Evans wrote the following at paragraph 6 of his reasons:

¶ 6       It is conceded that Mr. Maheu had standing to make his complaint to the Privacy Commissioner. If he had standing to complain to the Commissioner, then he surely had standing to seek judicial review of the Commissioner's disposition of his complaint. The Commissioner did not dismiss the complaint on the ground of the Respondent's motive, even though the Commissioner may decline to prepare a report if satisfied that a complaint is "trivial, frivolous or vexatious or made in bad faith": PIPEDA, paragraph 13(2)(d).

[92]            Second, in terms of the Privacy Commissioner, I do not think the exclusive arbitration model espoused by the Supreme Court of Canada in Weber, supra, has any application in this case.

[93]            It is clear the principle in Weber, supra, and in subsequent cases, is grounded on legislative intent - a statutory provision such as exists in the Canada Labour Code stipulating that disputes arising under a collective agreement shall be resolved by binding arbitration.

[94]            Weber, supra, was a case where a Union had filed grievances concerning Mr. Weber's suspension. In the meantime, Mr. Weber commenced a court action claiming damages on account of Ontario Hydro having hired private investigators who kept him under surveillance.

[95]            The case before me does not engage the legislative will over an ordinary court action. What we are faced with in this case are two statutory regimes: one provided for under PIPEDA and the other mandated by the Canada Labour Code, a situation which the Ontario Court of Appeal faced in Ford Motor Company of Canada v. Ontario (Human Rights Commission), [2001] O.J. No. 4937, where the provisions of the Ontario Human Rights Act and the Ontario Labour Code were at play. Notwithstanding the fact an arbitrator had ten years earlier ruled the complainant's discharge was justified, a Board of Inquiry established under the Human Rights Act took jurisdiction and ordered his reinstatement.

[96]            Abella J. A. referred to the Supreme Court of Canada's decision in Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, at pages 373-374. She wrote the following at paragraph 45 of her reasons:

¶ 45       The same analysis applies when the jurisdictional conflict is between tribunals. As Bastarache J. stated in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioner, [2000] 1 S.C.R. 360 at pp. 373-74:

        Before proceeding to an analysis of the ambit of the collective agreement, it is important to recognize that in Weber this Court was asked to choose between arbitration and the courts as the two possible forums for hearing the dispute. In the case at bar, The Police Act and Regulations form an intervening statutory regime which also governs the relationship between the parties. As I have stated above, the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature. The question, therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act and Regulations. ... [T]he approach described in Weber applies when it is necessary to decide which of the two competing statutory regimes should govern a dispute. [emphasis mine]

[97]            She went on to state that in order to determine whether the arbitrator had exclusive jurisdiction over Mr. Naraine's human rights complaints, one had to consider the essential character of the dispute and where the legislative intended it be resolved. She stated human rights legislation had consistently been found to occupy a uniquely protected sphere in the legal orbit. It enjoys quasi-constitutional status and can only be overridden by express and unequivocal legislative language. She added the following at paragraph 48 of her reasons:

¶ 48       There is jurisprudential and academic support for the conclusion that the legislature did not intend labour arbitrators to have exclusive jurisdiction over human rights issues. In Gendron v. Supply and Services Union, P.S.A.C., [1990] 1 S.C.R. 1298 at 1320, for example, the Supreme Court of Canada held, in obiter, that:

... In other instances, such as in the context of human rights violations, while the statute may apply, the breach may not be properly characterized exclusively as a labour relations matter. In these circumstances jurisdiction may be grounded elsewhere.

[98]            She concluded both statutory regimes were concurrent and both were meant to operate.

[99]            The Privacy Commissioner urged upon me the position that PIPEDA and the Canada Labour Code regime were concurrent and neither ousted the other. Based on Ford Motor Company, supra, and a trilogy of cases decided by Justice Vancise of the Saskatchewan Court of Appeal in Dominion Bridge Inc. v. Routledge (1999) 173 D.L.R. (4^th) 624, Prince Albert (District Health Board ) v. Saskatchewan (Occupational Health and Safety), [1999] 173 D.L.R. (4^th) 588, and Cadillac Fairview Corp. v. Saskatchewan Human Rights Commission [1999] S.J. No. 217, I agree Parliament's intention was not to exclude unionized workers from PIPEDA's scope. I also find for reasons expressed below, the essence of the dispute before me does not arise from the collective agreement.

[100]        I have no hesitation in classifying PIPEDA as a fundamental law of Canada just as the Supreme Court of Canada ruled the federal Privacy Act enjoyed quasi-constitutional status (see Justice Gonthier's reasons for judgment in Lavigne v. Canada (Office of the Commissioner of Official Languages, [2002] 2 S.C.R. 773 at paragraphs 24 and 25.

[101]        I am aware of Justice Pinard's ruling in L'Écuyer v. Aéroports de Montréal, 2003 FCT 573, where he applied Weber, supra, to dismiss an application under section 14 of PIPEDA on the grounds an arbitrator had exclusive jurisdiction over the dispute because the essential nature of the dispute arose from the collective agreement.

[102]        For the reasons set out below, it is my view this case is distinguishable from the case at bar on the point of the essential nature of the dispute between the parties. I also note Justice Pinard did not have the benefit of full argument on the point. The plaintiff was self represented and the Privacy Commissioner had not intervened.

[103]        Counsel for CP also cited Justice Blais' decision in Englander v. Telus Communications Inc., 2003 FCT 705. Clearly, Justice Blais was correct in stating the Court under PIPEDA had no jurisdiction over the setting of fees for an unlisted number because Parliament had given the CRTC mandate over the setting of such fees. That determination by Justice Blais does not engage the Weber, supra, analysis.

[104]        I consider Justice Tremblay-Lamer's decision in Canadian Broadcasting Corp. v. Paul, [1999] 2 F.C. 3, more apt. I note the Federal Court of Appeal set aside her decision but not on this point (see, 2001 FCA 93). One of the issues before her was whether an arbitrator had exclusive jurisdiction over a complaint arising from of an alleged violation of the Canadian Human Rights Act, when the impugned conduct was prohibited by the collective agreement which contained an arbitration clause. She ruled Weber, supra, had no application because the Supreme Court of Canada was not addressing the situation where there was concurrent jurisdiction given by the legislator to another forum.

[105]        She focussed on subsection 41(1) of the Canadian Human Rights Act which provided the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available. This clause is in identical terms to paragraph 13(2)(a) of PIPEDA.

[106]        Justice Tremblay-Lamer wrote the following at paragraphs 40, 41, 42, 43, 44 and 45 of her reasons:

¶ 40       Subsection 41(1) of the CHRA clearly gives jurisdiction to the Human Rights Commission to deal with any complaint arising from a collective agreement, unless it decides that the grievance procedure should be exhausted.

¶ 41       Given the plain language of the Act, it is difficult to sustain the argument that the intention of the legislator was to limit the jurisdiction of the Commission. I note that the statute contains a number of provisions limiting the jurisdiction of the Commission and that each such limitation has been worded in express terms.

¶ 42       The issue of statutory interpretation was clearly outlined by the Supreme Court of Canada, in the case of R. v. McIntosh. The Supreme Court affirmed that statutes are to be interpreted in a manner consistent with their plain meaning and that legislation is deemed to express completely what the legislator wanted to say.

. . . a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise.

                                                                      . . .

        Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say . . . .

The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment. [See Note 15 below]    Note 15: [1995] 1 S.C.R. 686=">R. v. McIntosh, [1995] 1 S.C.R. 686, at paras. 18 and 26, pp. 697 and 701.]

¶ 43       In the present case, the legislation is clear and plain: under section 41 of the CHRA the Commission is to decide if the complainant ought to exhaust the grievance or review procedures, or if the matter would more appropriately be dealt with under another Act of Parliament.

¶ 44       The next question is whether or not section 57 of the Canada Labour Code may be construed as an exception to the jurisdiction of the Commission?

¶ 45       The applicant asks the Court to read Weber [See Note 16 below] and St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219 [See Note 17 below] as an invitation to exclude any other forum for the resolution of disputes arising under a collective agreement. I disagree with such a proposition. In St. Anne Nackawic the Court indicates that arbitration "is an integral part of that scheme, and is clearly the forum preferred by the legislature for the resolution of disputes arising under collective agreements" [emphasis mine]. [See Note 18 below] However, in that case, the Court was not dealing with a statute like the CHRA, where the legislator has clearly provided another forum for disputes arising from allegedly discriminatory practices.

[107]        She further buttressed her reasons by stating section 41 of the Canadian Human Rights Act is a subsequent enactment to section 57 of the Canada Labour Code and that the rule in such a case is clear. The earlier enactment is repealed by implication insofar as it confers exclusive jurisdiction to an arbitrator in matters specifically given, by the legislature, to the Canadian Human Rights Commission.

[108]        Weber, and the City of Regina, cases, supra, teach if the essential character of the dispute between the parties arises either explicitly or implicitly from the interpretation, application, administration or violation of a collective agreement, the dispute, if the legislature expressed itself to that effect, is within the sole jurisdiction of an arbitrator.

[109]        To determine the essential characteristic of the dispute, the decision-maker examines the nature of the dispute in the factual context in which it arose and the ambit of the collective agreement.

[110]        I have no hesitation in finding the essential characteristic of the dispute between the application and CP is a complaint made by the applicant against CP alleging CP's violation of PIPEDA through its collection of personal information via surveillance cameras for which it did not have the applicant's consent.

[111]        Clearly, the factual matrix behind the applicant's complaint to the Privacy Commissioner is the collection of personal information. The applicant specifically engaged PIPEDA in his complaint.

[112]        It is true André Corriveau filed a grievance under the collective agreement and invoked articles 28 (which deal with grievances) and 43 (which deals with human rights) of the collective agreement as did Guy Lemire in step 2 of the grievance. They also invoked a violation of PIPEDA.

[113]        CP denied the grievance on March 21, 2002, stating at applicant's record, page 40:

I must point out that there is nothing in the collective agreement 101 which deals explicitly with this issue of video surveillance, nor can I see how Rule 28 and 43 have been violated in this situation as suggested by yourself.

[114]        I examined the scope of article 43 of the collective agreement. Under article 43, CP and the union agree there shall be no discrimination, interference, restriction or coercion permitted in the workplace with respect to race, national or ethnic origin, colour, religion, age, sex, marital status, family status, sexual orientation, disability or conviction for which a pardon has been granted. The next subsection states CP and CAW recognize that harassment or sexual harassment is unacceptable behaviour and will not be tolerated in the workplace. I see nothing in article 43 which deals with personal information and how it may be collected in the workplace. This was conceded by counsel for CP at the hearing.

[115]        As a result, I find the dispute between CP and the applicant does not arise from the collective agreement and if an arbitrator had been appointed, that arbitrator would not have any jurisdiction.

[116]        There is another point to be made. By enacting paragraph 13(2)(a) of PIPEDA Parliament intended to give the Privacy Commissioner the discretion to investigate a complaint or defer it if he considered it appropriate a complainant should exhaust a grievance.

[117]        In my view, a respondent to a complaint must at the earliest opportunity raise this issue with the Privacy Commissioner if that respondent thinks another review procedure is available. A respondent is not entitled to raise alternative review after the Privacy Commissioner has issued his report. It is by then, too late to argue the matter of jurisdiction on the basis of the exclusive arbitration model.

Issue 2 - Nature of the proceedings

[118]        A proceeding under section 14 of PIPEDA is not a review of the Privacy Commissioner's report or his recommendation. It is a fresh application to this Court by a person who had made a complaint to the Privacy Commissioner under PIPEDA and who, in order to obtain a remedy under section 16, bears the burden of demonstrating CP violated its PIPEDA obligations.

[119]        In Englander, supra, Justice Blais stated at paragraph 29 and 30:

¶ 29       The present hearing is therefore not an appeal of the Commissioner's report, nor is it an application for judicial review in an administrative legal sense.

¶ 30       Accordingly, I am required to exercise my own discretion de novo.

[120]        I agree with Justice Blais. I also note the de novo nature of a review proceeding under the Access to Information Act and the Privacy Act is well recognized. See Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, where LaForest J., dissenting, but not on this point, spoke about a de novo review.

[121]        A question arose at this hearing whether the Privacy Commissioner's report was entitled to some deference. In Englander, supra, Justice Blais wrote the following at paragraph 33:

¶ ¶ 33       While it is true that he is granted no statutory authority to impose his conclusions or recommendations, I believe that as a statutorily created administrator with specialized expertise, the PCC is entitled to some deference with respect to decisions clearly within his jurisdiction.

[122]        I accord the Privacy Commissioner some deference in the area of his expertise which would include appropriate recognition to the factors he took into account in balancing the privacy interests of the applicant and CP's legitimate interest in protecting its employees and property.

[123]        However, I do not accord any deference on the Commissioner's findings of fact because I am satisfied the evidence before me is considerably different than that gathered by the Privacy Commissioner's investigation.

[124]        The introduction of additional evidence makes the situation before me analogous to proceedings under the Trade Marks Act where, on an appeal, additional evidence may be introduced. Justice Rothstein, in Molson Breweries v. John Labatt Ltd. et. al., [2000] 3 F.C. 145 (C.A.), stated at paragraph 51, where evidence is adduced in the Trial Division that would have materially affected the Registrar's finding of fact or the exercise of his discretion, the Trial Division Judge must come to his or her own conclusion as to the correctness of the Registrar's decision.

(c)        Issue 3 - Did CP breach its PIPEDA obligations

[125]        As noted, the issue whether CP breached its PIPEDA obligations turns, in this case, on one or two questions.

(1)        The first question and it is a necessary one to be answered, is whether the reasons given by CP to collect, by recording on a surveillance camera, the personal information of CP employees and others walking to and from the shops or buildings in the mechanical facility at the Toronto Yard and on occasion recording their activities at work, are purposes that a reasonable person would consider appropriate in the circumstances.

In this case, we know the Privacy Commissioner came to the view CP had produced insufficient evidence to persuade him CP's purposes were reasonably appropriate.

(2)        If CP's purposes are appropriate, a question then arises whether CP violated its PIPEDA obligations by not obtaining the consent of its employees and others before collecting the information on video tape. This is a question which the Privacy Commissioner did not address and was not obliged to in view of his finding CP failed on the purposes issue.

(i)         Were CP's purposes reasonably appropriate

(A)        The test

[126]        In answering this question, all parties urged I adopt the factors or considerations which the Privacy Commissioner looked at to determine whether CP's purposes for collecting personal information are those a reasonable person would consider are appropriate.

[127]        I am prepared to take into account and be guided by those factors which I repeat are:

•            Is camera surveillance and recording necessary to meet a specific CP need;

•           Is camera surveillance and recording likely to be effective in meeting that need;

•           Is the loss of privacy proportional to the benefit gained;

•           Is there a less privacy-invasive way of achieving the same end?

[128]        As argued by all parties, these considerations or factors enumerated by the Privacy Commissioner are those which, over the years prior to PIPEDA, arbitrators adjudicating privacy issues under collective agreements involving camera surveillance have taken into account in balancing privacy interests of employees with the legitimate interests of employers.

[129]        There is no doubt Parliament mandated the balancing of interests. The need for balancing is clear from the purpose clause which is section 3 in PIPEDA. The purpose is to establish rules that govern the collection, use and disclosure of personal information in a manner that recognizes on the one hand the right of privacy of individuals with respect to their personal information and, on the other hand, the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.

[130]        I agree with counsel for CP the factors which the Privacy Commissioner took into account in this case may not necessarily be relevant in other contexts.

[131]        Parliament clearly provided the appropriateness of purposes or why personal information needs to be collected must be analysed in a contextual manner looking at the particular circumstances of why, how, when and where collection takes place. Also, the appropriate purposes for collection may be different than the appropriate purposes for use and the appropriate purposes for disclosure of collected information, all of which suggests flexibility and variability in accordance with the circumstances.

[132]        In terms of surveillance cameras, arbitrators have drawn a bright line between surreptitious collection of information and collection of information by cameras whose locations are known, where employees and others are told recordings are being made and the use of those recordings.

[133]        Arbitrators have also generally condemned the use of surveillance cameras to record the productivity of workers.

[134]        I cite a few examples:

(1)        Re Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979), 23 L.A.C. (2d) 14 .

[135]        At issue before Arbitrator Ellis, in an interest arbitration, where nine surveillance cameras were distributed as follows: one camera moving continuously back and forth and the only one with zoom capability, was installed on a pole overlooking a parking lot and the loading docks; three were installed in the production area constantly rotating but with no videotaping capability and four were installed on the first floor, one in the back of the loading dock, two others on the ceiling of storage areas and the last one in the area where packing and shipping work was done.

[136]        The arbitrator found as a fact the cameras were installed for the purpose of deterring theft. "They are not hidden cameras and are not designed to catch thieves. Neither were they designed nor are they apt for supervision or checking of production work or of the work performance or conduct of individual production employees".

[137]        He also found as a fact these surveillance cameras were installed after the discovery of a major but isolated theft committed by a plant employee. The arbitrator also found as a fact the actual experience of theft in the plant had not been very serious.

[138]        He noted the major theft prompted the discussions amongst management of ways and means of improving security in the plant and that hiring security guards was given some consideration but rejected as too costly; apparently some thought was also given to the possibility of sewing some kind of detector in the garments that would be electronically triggered by a searching device at the door.

[139]        Arbitrator Ellis wrote the following at pages 29 and 30 of his report:

The issues are not different in the industrial context. The full-time use of closed-circuit television systems for constant observation of the work performance and conduct of employees in an industrial setting would be widely regarded, I believe, as seriously offensive in human terms. I am certainly of that view. And as M. Dulude in the Liberty Smelting case suggests, it is difficult to conceive of circumstances in which considerations of efficiency would justify such an affront to human dignity, although even so, perhaps it is not impossible to do so... . [emphasis mine]

[140]        Arbitrator Ellis stated "[C]hanges in the quality and purpose of the surveillance may also lessen its « inhuman » quality so that less compelling considerations of efficiency would be seen to justify its use". He stated "[T]hus, where a company gives assurances that cameras will not be resorted to for disciplinary purposes or for supervising production work, even constant surveillance may be justified in order to deal with a massive intractable security problem". He opined "[O]r non-constant surveillance (i.e., rotating cameras) may be justified to deal with a theft problem so serious that it threatens a company's existence".

[141]        He concluded at page 30 as follows:

It is clearly a matter of balancing competing considerations after recognizing that any use of cameras that observe employees at work is intrinsically seriously objectionable in human terms, with the degree of objection depending on the way the cameras are deployed and the purpose for which they are used and ranging from unacceptable in the case of constant surveillance of conduct and work performance to probably non-objectionable in the case of short-term individual application for training purposes. [emphasis mine]

[142]        He ruled the cameras in the production areas of the plant could not be justified even though they are rotating cameras which do not keep employees under constant surveillance and are not used to check on production. He stated they were objectionable because the employees experience a sense of constant surveillance since they cannot keep track of the camera's movements and cannot know minute from minute whether or not they are in the camera's eye. He found there were no sufficient countervailing justifications and repeated his view the evidence did not, in his opinion, establish a theft or pilfering problem of serious proportions.

[143]        He did conclude, however, similar objection could not be taken to the cameras in the storage areas, in the loading dock or in the parking lot. In particular, he placed no restriction on the use of the camera in the parking lot but stated the company was only entitled to retain the loading dock camera and the cameras in the storage areas on the first floor so long as it continues to use them in a rotating fashion and for security purposes only.

(2)        Ross v. Rosedale Transport Ltd., [2003] C.L.A.D. No. 237.

[144]        Adjudicator Brunner had to decide whether Mr. Ross had been dismissed without just cause. Mr. Ross had been the subject of surreptitious video surveillance by private detectives hired by the employer, Rosedale Transport Ltd., who suspected Mr. Ross was defrauding the company deliberately by not returning to work after suffering a work-related back injury. The video caught him lifting and carrying furniture from a house to a pick-up truck.

[145]        Counsel for Mr. Ross objected to the admissibility of the video tape of the surveillance on the grounds it constituted the collection of "personal information" without Mr. Ross' consent in breach of subsection 7(1) of PIPEDA. He contended the collection of personal information was not reasonable for the purposes related to investigating a breach of an agreement within the meaning of subsection 7(1) of PIPEDA.

[146]        Being of the view that had the company advised Mr. Ross it intended to conduct the video surveillance and attempted to obtain his consent to videotape his activities, this would likely have compromised the accuracy of the information, Adjudicator Brunner went on to state the sole question was whether or not the collection of the personal information was reasonable for the purposes related to investigating a breach of his employment agreement.

[147]        He stated at paragraph 32 as follows:

¶ 32       Prior to the date the Act came into force, arbitrators considering the admissibility of video surveillance have generally embarked upon a balancing of an employee's right of privacy against the employer's right to protect its own interests and have in the process developed a number of tests.

1. Was it reasonable, in all the circumstances, to request a surveillance?

2. Was the surveillance conducted in a reasonable manner?

3. Were other alternatives open to the company to obtain the evidence it sought?

[148]        Adjudicator Brunner wrote as follows at paragraph 33 of his reasons:

¶ 33       This issue was also reviewed in Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996), 59 L.A.C. (4th) 111 (M. G. Picher). Examining the corresponding interests of the employee and the employer, the Arbitrator said the following at page 13 (Q.L.):

'The employment relationship is generally based on the payment of money by the employer to the employee for good consideration, subject to certain well-established conditions. Part of the bargain in many contemporary employment relationships involves the payment by the employer or its insurance carrier of sickness benefits or other forms of insurance or indemnities, short term or long term, when an employee is incapacitated by illness or injury. An employer obviously has a legitimate interest in preventing abuse of that system of employee protection by those who would advance fraudulent claims.

That interest must be fairly balanced with what is becoming recognized as the employee's interest in a respect for his or her personal privacy. The employer's interest does not extent to justifying speculative spying on an employee whom the employer has no reason to suspect will be dishonest. As a general rule, it does not justify resort to random videotape surveillance in the form of an electronic web, case like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it. What constitutes such cause is a matter to be determined on the facts of each case.'

[149]        He was of the opinion the general principles he referred to "are also apposite in the interpretation of Section 7(1) of the Act [PIPEDA] given the purpose of the Act as prescribed in Section 3" (paragraph 34). He stated "the question that must be answered is whether or not it was reasonable for Rosedale to conduct the video surveillance without the knowledge and consent of Ross for purposes related to the investigation of an alleged breach of the employment agreement" (paragraph 34).

[150]        He concluded the evidence must be excluded. He pointed to the fact there was absolutely no evidence Mr. Ross had ever been anything other than an honest employee. He had no disciplinary record. He had never submitted a false or fraudulent claim for insurance or other benefits. There were a number of other means available to the employer to test the true extent of his injury and the bone fides of his recovery. If the company really thought Mr. Ross was malingering or pretending not to be able to resume his duties, it was open for Rosedale to ask for an independent medical examination, a matter which was conceded by the private investigator.

[151]        The adjudicator, again quoted Arbitrator Picher in Canadian Pacific Ltd., supra, and stated:

As a general rule, it [the employer's interest] does not justify resort to random videotape surveillance in the form of an electronic web, cast like a net, to see what it might catch. Surveillance is an extraordinary step which can only be resorted to where there is, beforehand, reasonable and probable cause to justify it. What constitutes such cause is a matter to be determined on the facts of each case.

[152]        He was of the view the collection of the personal information in the form of the video surveillance tape was not reasonable for any purpose related to the investigation of the breach of the employment agreement. Its collection, without the knowledge and consent of Mr. Ross, violated paragraph 7(1)(b) of PIPEDA.

(3)        In the matter of an arbitration between Pope and Talbot Ltd. and Pulp, Paper and Woodworkers of Canada, Local No. 8.

[153]        This arbitration again concerned a surveillance camera at a barge unloading facility ("BUF"). It was decided by arbitrator Munroe on December 18, 2003.

[154]        The camera was a fixed video camera; it did not swivel in any direction nor did it zoom. It produced a single image of the critical production area. The monitor was located in the responsible supervisor's office.

[155]        The images captured the activities of the barge unloader who unloads wood chips on the barges by means of a large rubber wheeled loader.

[156]        The arbitrator found the camera surveillance not to be surreptitious because the surveillance is known to the employees and there is a warning sign at the BUF stating the area is under camera surveillance. He found the camera's field of vision was limited with the result employees were not under constant personal surveillance at their work sites throughout the day. The arbitrator found the camera not to be a security camera nor a process camera "monitoring automated or unmanned equipment or processes and only incidentally capturing the movements of employees who may briefly be within the camera's field of vision".

[157]        The arbitrator found while the surveillance camera monitoring the BUF was not intended to capture and generally would not capture the personal movements or activities of the Barge Unloader, "the camera is intended, at least in part, to monitor and supplement the human supervision of the Barge Unloader's work production, and to act as a deterrent to inappropriate down time". It was the only such camera - installed for that purpose, anywhere in the mill.

[158]        The arbitrator noted the monitor is not always watched by a supervisor and that often, the supervisor was away several hours particularly if there was a major breakdown somewhere in the mill.

[159]        Arbitrator Munroe articulated the balancing test by stating at page 15 of his reasons the following:

                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; ...

But just as an employee's privacy interests require protection against the overzealous exercise of management rights, so also must an arbitrator acknowledge the employer's legitimate business and property interests. What is required, then, is a contextual and reasonable balancing of interests. There is no absolute rule affording precedence to one legitimate interest over the other. It is a question of whether the particular camera surveillance, in the purported exercise of a management right, is reasonable in the circumstances. ...

The union's institutional concerns about the camera surveillance, and the employees' personal subjective concerns, cannot per se override the employer's competing and legitimate business interests. But neither can those concerns be regarded as de minimus. Constant camera surveillance of an employee's productivity, whether that is the primary purpose or just incidental, would obviously be preoccupying and may understandably be regarded in some circumstances as a diminution of one's sense of personal dignity or privacy. ... the threshold for determining the reasonableness of non-surreptitious video surveillance is lower than with surreptitious video surveillance; however, a meaningful threshold does exist.

[160]        The arbitrator ruled, at page 17, the employer's reasons for the BUF video camera "as articulated . . . providing a reasonable justification for the purposes stated by Mr. Heller [the employer's witness]". He accepted "as legitimate the managerial concern that unnecessary down time was sometimes occurring at the BUF at shift change; and that transitions were sometimes unnecessarily delayed, due to a lack of effective communication or the lack of firsthand supervisory knowledge of the progress of the unloading". Given the location of the BUF, the arbitrator accepted "the legitimacy and the reasonableness of video technology to assist in the supervision of the shift changes, and to efficiently allow the supervisors to do periodic visual checks of the progress of the chip unloading so as to ensure timely transitions".

[161]        Arbitrator Munroe emphasized he was making this ruling in the context the camera was non-surreptitious, a fixed camera with neither swivel nor zoom that depicts a fairly small area and without recording any images.

[162]        However, he was of the view the reasons given by the employer as justifying the installation of the video camera, which he accepted as reasonable, did not justify "the monitor running 24 hours each day in the supervisor's office, leaving the employees with the preoccupation of being electronically watched every minute of that shift". To him, this was an unreasonable exercise of management rights.

[163]        Arbitrator Munroe then placed restrictions on who could view the monitor and the times the camera could be activated, i.e., only twenty minutes commencing at shift change and only periodically during the shift by shift supervisors or the lead hand for up to five minutes on each occasion for the purpose of checking chip levels on the barges so as to ensure timely transition.

(4)        Unisource Canada Inc. and C.E.P., Loc. 433 [Re] (2003), 121 L.A.C. (4^th) 437.

[164]        This was an arbitral decision rendered in July 2003 by Arbitrator Kelleher before his appointment to the Bench.

[165]        The cameras involved were security cameras - they were visible to employees and visitors. They were installed to strengthen security procedures, act as a deterrent and assist management in the investigation of lost items. They were installed in locations throughout the warehouse and office monitoring entrance and exit points.

[166]        In correspondence between the employee and the union, the employer's manager identified the reason for the cameras was a $78,000 loss of fine paper in the last year. The point was made the cameras were not installed to monitor production; they were installed to monitor who was entering the warehouse and who was leaving the warehouse adding the company would not ignore incidents observed by the cameras or guarantee the cameras would not be used in investigating incidents.

[167]        Arbitrator Kelleher, as he then was, stated the manager for the employer was unable to swear the loss of the fine paper was due to theft and not clerical error.

[168]        He concluded in absence of an express term in the collective agreement, there is no blanket prohibition of video surveillance in the work place.

[169]        He drew a distinction between surreptitious use of video surveillance which he said could only be justified where:

(1)        there is a substantial problem;

(2)        there is a strong possibility the surveillance will be effective; and

(3)        there is no reasonable alternative to surreptitious surveillance.

[170]        He stated the threshold is lower with respect to surveillance that is non-surreptitious, i.e. announced to the employees affected. There is no blanket prohibition against videotaping. Rather, the test is whether the surveillance is a reasonable exercise of management rights in all of the circumstances of the case.

[171]        He agreed the evidence established a legitimate concern about theft. He added the employer could not prove beyond a reasonable doubt the $80,000 loss was sustained because of theft and not because of clerical error. He added "[N]onetheless, it is the Employer's bona fide belief that the problem was theft".

[172]        The evidence persuaded him "there is a problem of potential theft and that, generally speaking, the use of video surveillance is permissible".

[173]        He analysed each camera individually and he allowed six cameras to remain on the grounds they were for purpose of deterring and detecting theft which represented a legitimate exercise of management rights and their use did not breach the collective agreement.

(B)        Conclusions on this point

[174]        Applying the appropriate factors to all the evidence before me, I conclude a reasonable person would consider CP's purposes for collecting by recording the images of CP employees and others on video camera appropriate in the circumstances.

[175]        I focus first on the cameras themselves and what personal information they collect and how the recordings are viewed. I find the system CP devised and implemented has several appropriate fences.

[176]        The collection of personal information is not surreptitious - warning signs are displayed. The collection of personal information is not continuous - it is brief, capturing only a person's image when that person is within the footprint of the camera. The collection is not limited to CP employees - it captures the images of contractors, visitors, suppliers and trespassers. The collection is not to measure a CP employee's work performance and while it is true a camera may occasionally capture a CP employee at work outside the shops, CP could not use those images to measure that employee's productivity because such a use of the information would be a use for a purpose other than that which prompted its collection as a security measure. More importantly, the recorded images are kept under lock and key and the recordings are only accessed by responsible managers and CP police if there is an incident reported. If there are no incidents recorded which require investigations, the recordings are destroyed within an appropriate time frame.

[177]        The evidence satisfies me CP has established a legitimate need to have the cameras installed where they were and to record those persons who would pass its fixed footprints. While the cross-examination of CP deponents established, in some cases, a lack of correlation between camera location and incidents and, in other cases, between cause of loss, I am satisfied, on the whole of the evidence, CP identified numerous past incidents which justify the need to have surveillance cameras in place.

[178]        The applicant's emphasis on past events was misplaced in my view. The utility of these cameras is in the future deterring theft, vandalism; deterring trespassers and enhancing the security of its employees and others and the security of its goods which includes hazardous and toxic materials either on location or being transported. These cameras are also useful as a tool for investigation.

[179]        Again, while the cross-examination of CP deponents showed, in some cases, the video cameras might not have caught one of the incidents mentioned in their affidavits, the evidence, as a whole, establishes on a balance of probabilities, the cameras are effective in meeting CP's needs. The evidence establishes, and the Privacy Commissioner so found, there had been no recorded incidents since they were put into place, a performance similar to that which CP had experienced itself in other locations such as Golden, B.C. As an aside, the Privacy Commissioner speculated in his report deterrence might be attributed to the warning signs but failed to appreciate warning signs and cameras go hand-in-hand - you cannot have one without the other.

[180]        I find the loss of privacy was minimal. Indeed, if there were no recorded incidents, it means none of the images captured by the cameras were viewed. The Privacy Commissioner was of the view a person whose images might be recorded had a low expectation of privacy because the cameras were located to capture personal information in locations which were public places. I share his assessment. Generally, such a view accords with the thrust of the cases decided by the Supreme Court of Canada in section 8 Charter cases where an analysis of a reasonable expectation of privacy is weighed.

[181]        On this point, it must be remembered the recordings are never viewed unless an incident requiring an investigation occurs. This factor, coupled with my findings of how and what the cameras capture, lead me to conclude the loss of privacy is proportional to the benefit gained from their collection.

[182]        On the last factor, I am satisfied CP looked at alternatives and weighed them in the context of its operations at the Toronto Yard which, needless to say, are very extensive and are carried out over a very wide area. CP concluded, as I do, those alternatives such as fencing and the use of security guards, was not cost effective or would be disruptive of its operations. This factor, weighed with my finding about the low loss of privacy, satisfies me the last branch of the test put forward by the Privacy Commissioner is met.

(ii)         Was consent required to collect the information

[183]        CP argues the words "except where inappropriate" found in section 4.3 of Schedule 1 to PIPEDA is self-standing and enables the Privacy Commissioner or this Court to make a determination when the knowledge and consent of the individual whose personal information is being collected is unnecessary in the circumstances. I do not accept CP's arguments.

[184]        In Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, Justice Iacobucci wrote the following on statutory interpretation at paragraph 21:

¶ 21       Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

        Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[185]        In my view, CP's argument results in section 4.3 not being read harmoniously with the scheme of the Act particularly when it is appreciated how the Act and Schedule 1 fit together with the purpose of sections 7 to 9 of the Act serving as modifiers to the model code which is its Schedule 1.

[186]        As counsel for the applicant and counsel for the Privacy Commissioner argue, subsection 7(1) of the Act whose marginal note is "Collection without knowledge of consent" prescribes only four circumstances where that collection may take place without knowledge and consent. In other words, subsection 7(1) of the Act has given content to the words "except where inappropriate" found in section 4.3 of the Schedule. This is clear from the opening words of the subsection "[F]or the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause".

[187]        In my view, however, CP may, on the facts of this case, collect the applicant's personal information without his knowledge and consent because CP benefits from the exemption provided for in paragraph 7(1)(b) of PIPEDA.

[188]        There is no CP official looking at the monitor at the time the cameras are capturing a person's image. Rather, that person's image is recorded on videotape. The recording is never viewed unless there is a triggering event. The recording is wiped out after 96 hours with the result that person's image is never seen if there is no event.

[189]        In this context, I accept CP's argument collection of the person's information takes place when CP officials view the recording to investigate an incident. Assuming the recording captured an individual committing an act of theft asking for his/her permission to collect the information would compromise the availability of the information for the purpose of investigation.

[190]        This interpretation does not strain the purposes of the exemption in paragraph 7(1)(b). Clearly, the exemption would apply if a CP official had monitored and recorded live a person attempting to commit a crime. The same result should apply if monitoring is delayed as is the case here.

[191]        The issue of implied consent was raised but really not argued. That issue is better left to a determination in another case.

[192]        For all of these reasons, the applicant's application is dismissed with costs.

"François Lemieux"

                                                                                            J U D G E               

OTTAWA, ONTARIO

JUNE 11, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:       T-309-03

STYLE OF CAUSE: Erwin Eastmond

          -and-

Canadian Pacific Railway

           -and-

Privacy Commissioner of Canada

PLACE OF HEARING:         Toronto, Ontario

DATE OF HEARING:           Monday, April 19, 2004 - Tuesday, April 20, 2004

REASONS FOR ORDER : Lemieux J.

DATED:          June 11, 2004

APPEARANCES:

Ms. Catherine Gilbert

FOR APPLICANT

Mr. Norman Trerise

Ms. Alexis Kerr

FOR RESPONDENT               (Canadian Pacific Railway)

Mr. Steven Welchner

FOR RESPONDENT               (Privacy Commissioner of Canada)

Ms. Nathalie Daigle

FOR RESPONDENT (Privacy Commissioner of Canada)

SOLICITORS OF RECORD:

                        CAW-Canada Legal Department

Toronto, Ontario           FOR APPLICANT

Fasken Martineau Dumoulin

Vancouver, British Columbia      FOR RESPONDENT

                                    (Canadian Pacific Railway)

Nelligan O'Brien Payne LLP

Ottawa, Ontario

FOR RESPONDENT

                        (Privacy Commissioner of Canada)

Office of the Privacy Commissioner

Ottawa, Ontario

FOR RESPONDENT

(Privacy Commissioner of Canada)