Video Cameras in the Ontario Workplace

Increases in affordability and availability have made video cameras ubiquitous in both public and private places across Ontario. More so than ever before employers are installing cameras in the workplace.

Video camera surveillance raises interesting employment law issues for both employees and employers. While video cameras are common place in retail stores, banks, manufacturing facilities and casinos, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?

Right to privacy at work

The Ontario Courts have commented that the Ontario legislature “has not gone very far in safeguarding an employee’s right to privacy in the workplace.” In Ontario, there is no specific privacy legislation aimed at the private sector. Neither the Employment Standards Act nor the Occupational Health and Safety Act make any mention of an employer’s obligation or the employee’s rights regarding privacy. Only Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies.

PIPEDA requires a genuine purpose for video camera surveillance in the workplace. Or, in other words, a purpose that a “reasonable person would consider appropriate in the circumstances.” The test set out by the Office of the Privacy Commissioner of Canada (the “OPCC”) to determine the appropriateness for video camera monitoring is as follows:

  1. Is the camera demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy-invasive way of achieving the same end?

Although its aimed at public institutions, the OPCC publishes some very instructive examples:

  • “A minor offence such as littering would, in general, not be considered a substantial or pressing problem. It would, therefore, not meet the required criteria to justify the use of video surveillance.”
  • “A dimly lit area of a public school has been the site of ongoing vandalism and violence. Before considering video surveillance, the school should evaluate the effectiveness of less intrusive alternatives such as increased lighting and foot patrols.”
  • “A video camera that monitors a parking lot indirectly captures information about adjacent properties. To limit the amount of personal information collected by it, the camera is set up to automatically avoid or black out any area or property adjacent to the parking lot.”

Legitimate purpose can be to ensure the safety and security of customers and employees, reduce or deter illegal conduct, or to reduce the risk of legal liability.

Employers must balance the need for video surveillance vs employees’ right to privacy

For purposes of deterring theft, vandalism, assault and sexual harassment, surveillance cameras may be permitted. In grocery stores, banks, manufactories, retail or restaurants, where cash and inventory are stored, there is a reasonable purpose for having cameras. Further, for employees who work in public facing places, such as at reception of a business, there may be no reasonable expectation of privacy in the first place.

On the other hand, in private locations such as washrooms and lunch or break areas it is reasonable for both employees and customers to expect privacy.

In the case of Colwell v. Cornerstone Properties Inc., Ms. Colwell sued for constructive dismissal after her employer installed a secret hidden camera in her private office. The Court did not expressly address whether video cameras are permitted in the office, but instead found that the placement of the hidden cameras, and subsequent lies, violated the implied contractual term of employment, that “each party would treat the other in good faith and fairly”, and poisoned the work environment. Subsequently the Courts have stated that “the placement of a video camera in an employee’s office without his or her knowledge is a serious and intrusive violation of the employee’s privacy.”

Video cameras may be permitted in an office if employees are informed

In a decision from February, 2018, Rouse v. Drake & Drake, Justice Conlon dealt with a wrongful dismissal action of a hygienist from a Dental Office. In this case, Ms. Rouse made her dislike for the surveillance cameras clear prior to, during, and after their installation. She was found by the Court to have “deliberately manipulated the security cameras.” The Court considered her intentional conduct, in rendering the surveillance camera in her office ineffective, as one of the factors that could justify a termination for cause. Ultimately, however, the Court decided for other reasons that there was not cause for her termination.

Audio recording is not permitted

Did you know that Amazon’s Echo can be set up to allow listening in on conversations in other rooms. Amazon calls this feature “drop in”. Given how accessible devices like these are, what is an employees reasonable expectation of privacy, when it comes to their conversations around the office?

In terms of audio recording, employers could find themselves criminally liable under section 184 of the Criminal Code if they are intercepting private conversations unless one or more of the participants consents. Practically speaking this means that conversations between employees cannot be recorded.

Take away

Video cameras can be used in Ontario Workplaces to record video, but not audio, so long as there is a genuine purpose for doing so and employees are informed. Employers should publish and circulate to their employees a video surveillance policy containing guidelines and procedures for the collection, use, and disclosure of the information obtained by video surveillance and publish signage to remove any reasonable expectation of privacy.

In addition, employers should take measures to ensure the recorded images are stored securely, with limited access, and regularly destroyed or deleted.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Ontario Election 2018: Do employees get paid time off to vote?

With the Ontario Provincial Elections around the corner, some employees may be entitled to paid time off to vote pursuant to the Ontario Elections Act.

The Elections Act states:

Employees to have three consecutive hours for voting

[6](3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request.

 Deduction from pay prohibited

(4) No employer shall make any deduction from the pay of any employee or impose upon or exact from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3).

 Time off best suiting convenience of employer

(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.

The 2018 Provincial Election is scheduled for July 7, 2018, and polls are open between 9:00am and 9:00pm. Accordingly, (1) if an employee is working on voting day, (2) does not have three consecutive hours to vote while polls are open, and (3) requests time off to vote, then their employer must provide them with paid time off to vote.

An employer does not have to give paid time off, or time off at all, if their employee is off work for a consecutive 3 hour period during poll open times. That means no paid time off is required for 9:00am to 5:00pm employees because there is more than 3 consecutive hours after work ends for the employee to vote.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Stealth in a Mareva Injunction: Ontario’s First Ex Parte Appeal

This article originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.: Stealth in a Mareva Injunction: Ontario’s First Ex Parte Appeal.

The Mareva injunction is the best tool available for victims of fraud by ensuring that a defendant’s assets do not vanish before a plaintiff can collect on a judgment. Especially in the context of an alleged fraud, Marevas are typically sought ex parte–without notice– to the defendants. It is not difficult to see why. If given advanced notice that their accounts may be frozen, accused fraudsters may dissipate their assets leaving themselves judgment proof and their victims without recourse.

In the case of 2092280 Ontario Inc v Voralto Group Inc. 2018 ONSC 2305 (“Voralto”), the appellant-plaintiffs were a landlord and contractor allegedly defrauded by the respondent-defendants in a waste scam. Waste scams are a common fraud that involve the illegal dumping of waste on private property freeing the perpetrators of proper disposal costs. The plaintiffs brought a motion ex parte for a Mareva to freeze the defendants’ bank accounts.

The motion judge refused. Instead, it was ordered that the motion be brought back with notice to the defendants. The motion judge reasoned:

In light of the delay in pursuing a remedy, the delay in advancing this claim for injunctive relief, the fact that the defendants have not been served, and the lack of evidence that these Defendants are dissipating assets, I am not prepared to grant relief without giving them an opportunity to respond.

The plaintiffs sought to appeal on the belief that giving notice to the defendants would defeat the entire underlying purpose of a Mareva injunction. The Rules of Civil Procedure (the “Rules”), however, provide no mechanism to appeal an Order without notice to the defendants. Rules 61.03 and 62.02 of the Rules, which govern appeals to the Divisional Court from an interlocutory order, require that notice be given to the opposing parties.

The plaintiffs therefore sought an unprecedented order permitting the motion for leave to appeal and the appeal to be heard ex parte on the basis that requiring the plaintiff to give notice would again be self-defeating. The Divisional Court agreed and the motion for leave to appeal and the appeal were heard without notice to the defendants.

At the appeal, the plaintiffs argued that ex parte motions are brought in two separate and unique contexts. The first being urgency; where there is not enough time to serve a defendant. The second, and the context applicable to Marevas, being stealth. They argued that delay or timeliness is not a relevant factor for ex parte motions brought in the context of stealth. They relied on the fact that timeliness is not one of the five requirements for a Mareva injunction as set out in the case law.

The Divisional Court held that:

While delay may be a relevant factor in some cases, particularly where urgency is alleged as a basis of moving without notice under Rule 37.07 (3), it is not a relevant factor where a risk of dissipation of assets is the basis for moving without notice under Rule 37.07(2).

Ultimately, the Divisional Court allowed the appeal and granted the Mareva injunction, reasoning that:

The Mareva injunction is an important tool for Plaintiffs to try and recover their losses due to fraud or theft. A requirement to notify the perpetrators of a fraud in advance of an impending Mareva injunction would significantly waterdown an important remedy for protecting innocent victims. Judgments for damages cannot reasonably be expected to be affordable or collectable against fraudsters. If funds cannot be frozen in advance, a vital arrow in the civil law’s quiver to address serious fraud will be lost. This is a narrow exception to the general rule against prejudgment execution. It is therefore a remedy that is not readily available. However, where evidence discloses a strong prima facie case that Defendants perpetrated a premeditated, substantial fraudulent scheme against innocent victims, the law’s reluctance to allow prejudgment execution must yield to the more important goal of ensuring that the civil justice system provides a just and enforceable remedy against such serious misconduct.

To conclude, in Voralto, the Divisional Court has recognized the importance of stealth in the context of fraud and motions for Mareva injunctions. This case will act as a strong precedent for fraud-victims seeking civil remedies and provide a process for appealing ex parte orders where stealth is key.

P. James Zibarras and Justin W. Anisman of Brauti Thorning Zibarras LLP were counsel for the successful appellants. They can be contacted for further details about this decision.

 


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Featured on the Front Cover of Law Times

I am thrilled to be featured on the front page of law times along with my firm’s managing partner, James Zibarras.

Equal Pay for Part Time Work begins April 1, 2018

For Ontario employers, employing part time and temporary workers is about to become a lot more expensive. On April 1, 2018, the “equal pay for equal work” amendments to the Employment Standards Act, 2002 (the “ESA”) by Bill 148, the Fair Workplaces, Better Jobs Act 2017, come into legal effect.

Ontario employees have long had the protection of the Pay Equity Act, and similar provisions in the ESA, that prevented women (and men too) from being paid less than their peers on the basis of sex. As of April 1, 2018, the ESA will now provide for an entitlement for equal pay from an employer regardless of a difference in employment status.

“Difference in employment status”, in respect of one or more employees, will now be defined as:

a difference in the number of hours regularly worked by the employees; or a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status

As a result, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as:

  • they perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • their work is performed under similar working conditions.

The legislature has attempted to define “substantially the same” to mean “substantially the same but not necessarily identical.” How this will be interpreted by the Ontario Courts is anyone’s guess but likely it will be used to grant discretion to the Tribunal, Judge or Jury on whether two similar jobs are “substantially the same”.

Exceptions

Differences in pay between employees of different sex or similar employment status are permitted so long as the difference in rate of pay is the result of:

  • a seniority system – a system that pays employee based on length of service;
  • a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  • a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  • any other factor other than sex or employment status.

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

The Process

Any employee who believes that their rate of pay does not comply with the Equal Pay for Equal Work section of the ESA, may request a review from their employer. Employers are, thereafter, required to either:

  • Adjust the employee’s pay; or
  • Provide a written response setting out the reasons for refusing.

As discussed in my article Important Upcoming Changes to the Ontario Workplace, any written response must be saved according to the new record keeping requirements in the ESA for five (5) years.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

What documents are helpful to my employment lawyer?

Most Toronto employment lawyers, including myself, offer free initial consultations to prospective clients. To make the most out of the meeting or telephone call, it is important to organize all of important documents and information.

Your lawyer will want to bring with you the following:

  • Photo identification. It is a requirement of the Law Society of Ontario that lawyers confirm the identity of their clients by reviewing original photo identification of every client and retaining a copy for their records.
  • Your employment contract, if you have one, and any other letter, memo, or email exchanged around the time you were hired.
  • Likewise, your lawyer will want to see all the paperwork your employer gave you when you were fired, including your Record of Employment and termination letter.
  • Any letters, memos, or emails that might help to show why you were fired
  • Documents or other things that show what you did to claim your rights as a worker
  • Any notes you made about things that happened at work, especially if you feel discriminated against or believe there was some other wrong doing by your employer.
  • Contact information for co-workers or others who saw or heard things that could help you show why you were fired.
  • T4 and your most recent pay stubs.
  • Any other paper work you think may be important to your case.

Contact Justin W. Anisman

To contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing, call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Important Upcoming Changes to the Ontario Workplace

On November 27, 2017, the Fair Workplaces, Better Jobs Act 2017 received royal assent and became Law in Ontario. Set out below are some of the most important changes to Ontario’s workplaces.

Read more