Understanding the criteria for admissibility of a surveillance operation as evidence
Last October 3, the Court of Appeal of Québec issued an important decision in the CSSS Vallée-de-la-Gatineau Workers’ Union1 case, concerning the admissibility as evidence of a videotape obtained as part of a surveillance operation. In this case, the Court of Appeal nullified an arbitration award that had previously refused to admit into evidence a videotape showing an employee engaged in activities that were incompatible with her state of disability.
In this case, the employee was an orderly at a Health and Social Services Centre (CSSS). She was put on work leave due to a procedure related to a shoulder injury. Some months later, the physician appointed by the employer expressed an opinion in which he concluded that the employee was faking her condition, since he was able to observe her getting out of her vehicle and using her arm normally. The physician also noted that the employee had previously made false statements about her health status during another period of disability. In this context, the physician recommended that the employer proceed with a surveillance operation.
Surveillance of the employee over the course of a day found that she travelled by car and visited a business establishment and a food market. After viewing the videotape, the employer fired the employee.
The arbitrator declared the video recording inadmissible and annulled the employee’s dismissal. The Superior Court then allowed the appeal for judicial review and nullified the arbitration award.
The Bridgestone/Firestone ruling2
This decision refers to the landmark ruling in the matter, issued by the Court of Appeal in 1999 in the Bridgestone/Firestone case, establishing the principles applicable to the admissibility of evidence collected as part of a surveillance operation.
It can be summarized as follows:
- A surveillance procedure is prima facie an invasion of privacy;
- Although it involves an apparent violation of the right to privacy, surveillance outside of the establishment may be permitted if: (1) it is justified by serious and rational reasons, which the employer must possess before subjecting an employee to surveillance; and (2) it must be conducted by reasonable means, as required by Article 9.1 of the Charter of human rights and freedoms;
- For the choice of means, the surveillance must appear necessary for verification of the behaviour of the employee and, moreover, it must be conducted as unobtrusively as possible;
- If the employee disputes the surveillance’s admissibility as evidence, he must demonstrate, under Article 2858 of the Civil Code of Québec (hereinafter: “C.c.Q.”), that it constitutes: (a) a violation of one or more fundamental rights; and (b) that use of this evidence would discredit the administration of justice. These two criteria are cumulative.
The conclusions of the Court of Appeal
In this case, the Court of Appeal recalled that under Article 2858 C.c.Q., the decision-maker must imperatively carry out a two-part analysis: first, deciding whether the evidence was obtained under conditions that violate fundamental rights and freedoms, and then deciding whether the use of this evidence is liable to discredit the administration of justice. The Court of Appeal insisted on the imperative nature of this two-part analysis.
In his decision, the arbitrator concluded that the employer did not have reasonable cause to carry out the surveillance and did not believe that he was authorized to admit the evidence, despite the existence of the second part. He stated:
 I do not believe that the second part of Article 2858 C.c.Q. authorizes me to admit the evidence that the Employer wishes to use. In this respect, I use the reasoning of arbitrator Brault at Concordia University. To permit the use, in this case, of evidence established in disregard of the Plaintiff’s right to privacy, when I have come to the conclusion that the Employer did not have reasonable grounds to undertake a surveillance operation, would trivialize the violation of a fundamental right and would imply that otherwise inadmissible evidence could become admissible simply because it confirmed, a posteriori, a suspicion or impression. In the circumstances of this case, I am of the opinion that the sole impression of the consulting physician of the Employer does not constitute reasonable grounds to authorize the Employer to undertake the surveillance operation of September 23. Therefore, I am of the opinion that exhibit E-4, the DVD-R created by witness Lapointe of Bélanger & Associés, is inadmissible as evidence.
The Court of Appeal concluded that the arbitrator was mistaken in his analysis of the test of Article 2858 C.c.Q. and that this error was of a nature to render the arbitration award unreasonable. In this case, the Court of Appeal criticized the arbitrator for limiting his examination to the first part of Article 2858 C.c.Q, and his circular reasoning according to which the violation of fundamental rights makes the use of video evidence liable to discredit the administration of justice, which is contrary to the current state of the law. The Court of Appeal emphasized that a proportionality test must be carried out, and that the severity of the violation of fundamental rights, with regard to its nature, purpose, motivation and legal interest of the violating party and the means of its execution, must be evaluated in order to determine whether administration of justice is liable to be discredited.
Finally, the Court recalled that “the search for truth must prevail if the circumstances are not sufficiently serious or sufficiently exceptional to contravene from the rule that all relevant evidence should, in principle, be admissible.” In this context, the Court concluded that the videotape should have been admitted as evidence by the arbitrator.
This decision reiterated the principles established by the Court of Appeal in the Bridgestone/Firestone case. Moreover, the Court of Appeal insisted on the importance of the second part of the analysis, which involves verifying whether the admissibility of evidence is of a nature that may discredit the administration of justice. The Court reaffirmed the principle of the importance of the search for truth and concluded that only in serious and exceptional circumstances may this principle be set aside.
Surveillance is an interesting element to consider when an employer has concerns about the loyalty of an employee on disability. The employer should base its decision to carry out the surveillance on reasonable grounds and it would be beneficial for the surveillance to be carried out under conditions in which the privacy of the employee is not violated in an unreasonable or abusive manner. In this context, the risk of upholding an objection to the admissibility of video evidence will be significantly reduced.
1 2019 QCCA 1669
2 D.T.E. 99T-846 (C.A.)