Teresa Scassa - Blog

Wednesday, 06 September 2017 11:09

Privacy, surveillance and long-term care facilities

Written by  Teresa Scassa
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The long-term care context is one where privacy interests of employees can come into conflict with the interests of residents and their families. Recent reported cases of abuse in long-term care homes captured on video camera only serve to highlight the tensions regarding workplace surveillance. A June 2017 decision of the Quebec Court of Appeal, Vigi Santé ltée c. Syndicat québécois des employées et employés de service section locale 298 (FTQ), considers the workplace privacy issues in a context where cameras were installed by the family members of a resident and not by the care facility.

The facts of the case were fairly straightforward. The camera was installed by the family of a resident of a long term care facility, but not because of any concerns about potential abuse. Two of the resident’s children live abroad and the camera provided them with a means of maintaining contact with their mother. The camera could be used in conjunction with Skype, and one of the resident’s children present in Quebec regularly used Skype to receive updates about his mother from the private personal care person they also paid to be with their mother for part of the day, six days a week. The camera provided a live feed but did not record images. The operators of the long-term care facility did not have access to the feed. The employees of the facility were informed of the presence of the camera and none objected to it. The privately hired personal care worker was often present when staff provided care, and the court noted that there were no complaints about the presence of this companion. The family never complained about the services provided to the resident; in fact, they indicated that they were very satisfied. The resident had been in two other facilities prior to moving to this one; similar cameras had been used in those facilities.

The employees’ union challenged the installation of the video, and two questions were submitted to an arbitrator for determination. The first question was whether the employer could permit the family members of a resident to install a camera in the resident’s room for the sole purpose of allowing family members to see the resident. The second was whether the employer could permit family members to install a camera in the room of a resident with the goal of overseeing the activities of employee caregivers. The arbitrator had ruled that, as far as employees were concerned, in both cases the camera was a surveillance camera. He went on to find that the employer had no justification in the circumstances for carrying out surveillance on its employees. Judicial review of this decision was sought, and a judge of the Quebec Superior court confirmed the decision. It was appealed to the Court of Appeal.

Under the principles of judicial review, an arbitrator’s decision can only be overturned if it is unreasonable. The Court of Appeal split on this issue with the majority finding the decision to have been unreasonable. The majority emphasized that the arbitrator had found that the family’s motivation for installing the camera was not to carry out surveillance on the staff, and also highlighted the fact that none of the staff had complained about the presence of the camera.

Although the majority agreed that the privacy guarantees of the Quebec Charter of Human Rights and Freedoms protected employees against unjustified workplace surveillance by their employer, they found that the camera installed by the family for the purpose of maintaining contact with a loved one did not constitute employee surveillance. Further, it was not carried out by the employer. They noted in particular the fact that the images were not recorded and the feed was not accessible to the employer. The majority criticized the arbitrator for characterizing the family’s decision to install the camera as being motivated by a disproportionate concern (“une inquietude démesurée”) over their mother’s well-being, because there was no evidence of any mistreatment.

The majoirty cited jurisprudence to support its view that a camera that captured activities of workers was not necessarily a surveillance camera. It noted several Quebec arbitration cases where arbitrators determined that cameras installed by employers to provide security or to protect against industrial espionage were permissible, notwithstanding the fact that they also captured the activities of employees. Any surveillance of employees was incidental to a different and legitimate objective of the employer.

The majority went further, noting that in this case, the issue was whether an individual (or their family) had a right to install a camera in their own living space. For the majority, it was significant that the care home was the resident’s permanent living space because she had lost her ability to live on her own. The camera allowed her to remain in greater contact with her loved ones, including two children who lived abroad. They considered that the family’s choice in this matter had to be given its due weight, and found that the arbitrator should have ruled, in answer to the first question, that the employer could permit the installation of a camera, by family members, for the goal of permitting the family members to maintain contact with a resident.

The second question related to the rights of family members to install cameras with the goal of carrying out surveillance on caregivers. The majority declined to answer this question on because the facts did not provide a sufficient context on which to base a decision. The Court noted that the answer would depend on circumstances which might include whether there had already been complaints or reported concerns, the nature and extent of notice provided to employees, and so on.

Justice Giroux, in dissent, found that it was reasonable for the arbitrator to have characterized the camera as a surveillance camera. The arbitrator had noted that the camera was placed in such a way as to allow for a continuous view of all care provided by employees to the resident. The resolution was good enough to identify them, and in some cases to hear them. While there was no recording of the feed, it was possible to create still photographs through screen capture. The arbitrator had also turned his attention to the special nature of the care home, noting that it was a home to residents but at the same time was a workplace for the employees. The workplace was governed by a collective agreement, and disputes about working conditions were meant to be resolved by an arbitrator, meaning that courts should exercise deference in review. The arbitrator had found that by permitting the installation of the camera by the family of the resident, the employer had adopted as its own the family’s reasons for doing so, and was responsible for establishing that the level of surveillance was consistent with the Quebec Charter. The arbitrator had found that the family members had demonstrated a disproportionate level of concern, and that this could not be a basis for permitting workplace surveillance. He concluded that in his view the decision of the arbitrator should have been upheld.

 

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