Eastmond v. Canadian Pacific Railway et al., 2004 FC 852

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: June 11, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 FC 852;(2004), 254 F.T.R. 169 (FC)

Eastmond v. CPR (2004), 254 F.T.R. 169 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. JN.040

Erwin Eastmond (applicant) v. Canadian Pacific Railway (respondent) and Privacy Commissioner of Canada (respondent)

(T-309-03; 2004 FC 852)

Indexed As: Eastmond v. Canadian Pacific Railway et al.

Federal Court

Lemieux, J.

June 11, 2004.

Summary:

Canadian Pacific Railway (CP) installed six digital video recording surveillance cameras in the mechanical facility area of its main rail classification and maintenance yard in Scarborough, Ontario. Eastmond, a CP employee, filed a complaint with the Privacy Commissioner of Canada pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA). The Privacy Commissioner issued a report recommending that CP remove the cameras. The Privacy Commissioner found that CP's use of this type of video surveillance for the purposes stated by CP was not appropriate and that CP was in contravention of s. 5(3) of the PIPEDA. Eastmond applied to the court for a hearing pursuant to s. 14(1) of the PIPEDA, seeking, inter alia, an order confirming the Privacy Commissioner's report.

The Federal Court dismissed the application. The court concluded that a reasonable person would consider CP's purposes for recording the images of CP employees and others on video camera appropriate in the circumstances. Further, CP benefited from the exemption in s. 7(1)(b) of the PIPEDA in this case and it could collect Eastmond's personal information without his knowledge and consent.

Labour Law - Topic 7041.3

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Respecting statutory rights - [See first Trade Regulation - Topic 9428 ].

Trade Regulation - Topic 9423

Electronic commerce, communications and information - Remedies (incl. complaints, investigations, reports and particular remedies) - Privacy Commissioner's report - Alternative grievance or review procedures - Section 13(2)(a) of the Personal Information Protection and Electronic Documents Act (PIPEDA) provided that the Privacy Commissioner was not required to prepare a report if the Commissioner was satisfied that "the complainant ought first to exhaust grievance or review procedures otherwise reasonably available" - The Federal Court stated that "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. 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" - See paragraphs 116 to 117.

Trade Regulation - Topic 9428

Electronic commerce, communications and information - Remedies (incl. complaints, investigations, reports and particular remedies) - Hearing respecting Privacy Commissioner's report - General - Canadian Pacific Railway (CP) installed digital video recording surveillance cameras in the mechanical facility area of its main rail classification and maintenance yard in Scarborough - Eastmond, a CP employee, filed a complaint with the Privacy Commissioner of Canada pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA) - The Privacy Commissioner found that CP's use of this type of video surveillance for the purposes stated by CP was not appropriate and that CP was in contravention of s. 5(3) of the PIPEDA - Eastmond applied to the court for a hearing pursuant to s. 14(1) of the PIPEDA, seeking, inter alia, an order confirming the Privacy Commissioner's report - CP argued that the essential character of Eastmond's complaint was a workplace dispute arising from the collective agreement and the court did not have jurisdiction to hear Eastmond's application because the Privacy Commissioner lacked jurisdiction to entertain Eastmond's complaint - The Federal Court rejected CP's argument - The court's jurisdiction was statutory and was engaged upon the conditions in s. 14 of the PIPEDA being met - Further, the essence of the dispute did not arise from the collective agreement and an arbitrator would not have any jurisdiction - See paragraphs 89 to 115.

Trade Regulation - Topic 9428

Electronic commerce, communications and information - Remedies (incl. complaints, investigations, reports and particular remedies) - Hearing respecting Privacy Commissioner's report - General (incl. nature of hearing) - Canadian Pacific Railway (CP) installed digital video recording surveillance cameras in the mechanical facility area of its main rail classification and maintenance yard in Scarborough - Eastmond, a CP employee, filed a complaint with the Privacy Commissioner of Canada pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA) - The Privacy Commissioner found that CP's use of this type of video surveillance for the purposes stated by CP was not appropriate and that CP was in contravention of s. 5(3) of the PIPEDA - Eastmond applied to the court for a hearing pursuant to s. 14(1) of the PIPEDA, seeking, inter alia, an order confirming the Privacy Commissioner's report - The Federal Court stated that "a proceeding under s. 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 s. 16, bears the burden of demonstrating CP violated its PIPEDA obligations" - See paragraph 118.

Trade Regulation - Topic 9428.2

Electronic commerce, communications and information - Remedies (incl. complaints, investigations, reports and particular remedies) - Hearing respecting Privacy Commissioner's report - Scope of review - Canadian Pacific Railway (CP) installed digital video recording surveillance cameras in the mechanical facility area of its main rail classification and maintenance yard in Scarborough - Eastmond, a CP employee, filed a complaint with the Privacy Commissioner of Canada pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA) - The Privacy Commissioner found that CP's use of this type of video surveillance for the purposes stated by CP was not appropriate and that CP was in contravention of s. 5(3) of the PIPEDA - Eastmond applied to the court for a hearing pursuant to s. 14(1) of the PIPEDA, seeking, inter alia, an order confirming the Privacy Commissioner's report - The Federal Court stated that "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. 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" - See paragraphs 122 to 123.

Trade Regulation - Topic 9443

Electronic commerce, communications and information - Protection, collection or disclosure of personal information - When appropriate - Canadian Pacific Railway (CP) installed digital video recording surveillance cameras in the mechanical facility area of its main rail classification and maintenance yard in Scarborough - Eastmond, a CP employee, filed a complaint with the Privacy Commissioner of Canada pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA) - The reasons given by CP for installing the cameras were to reduce vandalism and deter theft, to reduce CP's potential liability for property damage and to provide security for staff - The Privacy Commissioner found that CP's use of this type of video surveillance for the purposes stated was not appropriate and that CP was in contravention of s. 5(3) of the PIPEDA - Eastmond applied to the court for a hearing pursuant to s. 14(1) of the PIPEDA, seeking, inter alia, an order confirming the Privacy Commissioner's report - The Federal Court dismissed the application - The court concluded that a reasonable person would consider CP's purposes for recording the images of CP employees and others on video camera appropriate in the circumstances - Further, CP benefited from the exemption in s. 7(1)(b) of the PIPEDA in this case and it could collect Eastmond's personal information without his knowledge and consent - See paragraphs 174 to 191.

Trade Regulation - Topic 9444

Electronic commerce, communications and information - Protection, collection or disclosure of personal information - Consent to collection or disclosure - [See Trade Regulation - Topic 9443 ].

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, consd. [para. 74].

Maheu v. IMS Health Canada et al. (2003), 314 N.R. 393; 2003 FCA 462, refd to. [para. 91].

Human Rights Commission (Ont.) and Naraine v. Ford Motor Co. of Canada Ltd. et al. (2001), 158 O.A.C. 380 (C.A.), consd. [para. 95].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 96].

Dominion Bridge Inc. v. Routledge et al. (1999), 177 Sask.R. 114; 199 W.A.C. 114; 173 D.L.R.(4th) 624 (C.A.), refd to. [para. 99].

Prince Albert District Health Board v. Occupational Health and Safety (Sask.) (1999), 177 Sask.R. 97; 199 W.A.C. 97; 173 D.L.R.(4th) 588 (C.A.), refd to. [para. 99].

Cadillac Fairview Corp. v. Human Rights Commission (Sask.) et al. (1999), 177 Sask.R. 126; 199 W.A.C. 126; 173 D.L.R.(4th) 609 (C.A.), refd to. [para. 99].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282, refd to. [para. 100].

L'Ecuyer v. Aéroports de Montréal (2003), 233 F.T.R. 234; 2003 FCT 573, dist. [para. 101].

Englander v. Telus Communications Inc. (2003), 235 F.T.R. 1; 2003 FCT 705, consd. [para. 103].

Canadian Broadcasting Corp. v. Paul, [1999] 2 F.C. 3; 158 F.T.R. 161 (T.D.), varied (2001), 274 N.R. 47; 2001 FCA 93, consd. [para. 104].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 120].

Molson Breweries, A Partnership v. Labatt (John) Ltd. et al., [2000] 3 F.C. 145; 252 N.R. 91; 5 C.P.R.(4th) 180 (F.C.A.), refd to. [para. 124].

Puretex Knitting Co. v. Canadian Textile and Chemical Union (1979), 23 L.A.C.(2d) 14, consd. [para. 135].

Ross v. Rosedale Transport Ltd., [2003] C.L.A.D. No. 237, consd. [para. 144].

Unisource Canada Inc. and C.E.P., Local 433, Re (2003), 121 L.A.C.(4th) 437, consd. [para. 164].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 184].

Statutes Noticed:

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, sect. 5(3), sect. 7(1), sect. 13(2), sect. 14(1) [para. 26].

Counsel:

Catherine Gilbert, for the applicant;

Norman Trerise and Alexis Kerr, for the respondent, Canadian Pacific Railway;

Steven Welchner and Nathalie Daigle, for the respondent, Privacy Commissioner of Canada.

Solicitors of Record:

CAW-Canada Legal Department, Toronto, Ontario, for the applicant;

Fasken Martineau Dumoulin, Vancouver, British Columbia, for the respondent, Canadian Pacific Railway;

Nelligan O'Brien Payne LLP, Ottawa, Ontario, and Office of the Privacy Commissioner, Ottawa, Ontario, for the respondent, Privacy Commissioner of Canada.

This application was heard on April 19 and 20, 2004, at Toronto, Ontario, before Lemieux, J., of the Federal Court, who delivered the following judgment on June 11, 2004.