Communications, Energy & Paperworkers' Union of Canada (CEP) Local 433 v. Unisource Canada Inc.

2004 BCCA 351 Communications, Energy&Paperworkers' Union of Canada (CDP) Local 433 v. Unisource Canada Inc. COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Communications, Energy & Paperworkers' Union of Canada (CEP) Local 433 v. Unisource Canada Inc., 2004 BCCA 351 Date: 20040624 Docket: CA31133 Between: Communications, Energy & Paperworkers' Union of Canada (CEP) Local 433 Appellant And Unisource Canada Inc. Respondent Before: The Honourable Chief Justice Finch The Honourable Mr. Justice Mackenzie The Honourable Mr. Justice Lowry D.J. Rogers Counsel for the Appellant D.M. MacPhail M. Sveinson Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia June 11, 2004 Place and Date of Judgment: Vancouver, British Columbia June 24, 2004 Written Reasons by: The Honourable Chief Justice Finch Concurred in by: The Honourable Mr. Justice Mackenzie The Honourable Mr. Justice Lowry Reasons for Judgment of the Honourable Chief Justice Finch: I. INTRODUCTION [1] After hearing counsel on 11 June 2004, we dismissed this appeal as outside the jurisdiction of this court under s.100 of the Labour Relations Code, R.S.B.C. 1996, c.244 [the "Code"], with reasons to follow. These are the reasons. [2] The Communications, Energy & Paperworkers' Union of Canada (CEP), Local 433 (the "Union") appeals from an arbitration award Stephen Kelleher Q.C. (now Mr. Justice Kelleher) made on 16 July 2003 dismissing in part the Union's grievance that certain surveillance cameras installed by Unisource Canada Inc. (the "Employer") at its warehouse on Annacis Island violated the privacy rights of Union members. [3] Three issues were raised. The first is whether the Court of Appeal has jurisdiction under s.100 of the Code to review the award. The second is, if the court has jurisdiction, the standard of review applicable - correctness as the Union asserts, or patent unreasonableness as the Employer asserts. The third issue is the merits of the award, and whether the arbitrator's award was in error (or patently unreasonable) in failing to find a breach of the employees' right to privacy. It is only necessary to deal with the issue of this court's jurisdiction. II. THE ARBITRATOR'S AWARD [4] The Union's grievance was stated thus: The employer has infringed on the privacy rights of employees by installing and utilizing surveillance cameras in the workplace. This is a breach of common law, the B.C. Privacy Act and an unreasonable exercise of management rights. [5] There is no provision in the parties' collective agreement concerning the use of video surveillance. The Union asserted that the Canadian Charter of Rights and Freedoms, the Privacy Act, R.S.B.C. 1996, c.373, and the common law (as developed in arbitral jurisprudence), establish a right to privacy for its members which the Employer had infringed. [6] The arbitrator recognized, and counsel for the Union conceded, that the Charter had no direct application to this case because the Employer is not a government actor: Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174. The arbitrator acknowledged that principles of common law ought to be developed in a manner consistent with Charter values. He did not expressly state whether those values encompass a right to privacy. [7] The arbitrator also held that the Privacy Act did not bar the Employer from installing video surveillance. The relevant provisions of the Privacy Act the arbitrator considered were: Violation of privacy actionable 1(1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass. Exceptions . . . 2(2) An act or conduct is not a violation of privacy if any of the following applies: . . . (b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; [8] The arbitrator suggested that it is "debatable whether a security camera in the employer's workplace violates the rights of an employee". On briefly reviewing the statutory provisions, the arbitrator considered ss.1(2) and 2(2)(b) to mean that the Privacy Act does "not generally protect employees from surveillance in the workplace where the purpose is to deter theft". [9] Although not mentioned by the arbitrator, it is significant that the Privacy Act assigns exclusive jurisdiction for deciding actions for the statutory tort outlined in s.1(1) to the B.C. Supreme Court. Section 4 states: 4. Despite anything contained in another Act, an action under this Act must be heard and determined by the Supreme Court. [10] The arbitrator then considered how arbitral jurisprudence has addressed issues relating to employee privacy in the workplace, including the awards in: Puretex Knitting Co. Ltd. and Canadian Textile and Chemical Union (1979), 23 L.A.C. (2d) 14 (Ellis); Doman Forest Products Ltd. and International Woodworkers of America, Local 1-35 (1990), 13 L.A.C. (4th) 275 (Vickers); St. Mary's Hospital and Hospital Employees' Union (1997), 64 L.A.C. (4th) 382 (Larson); and Lenworth Metal Products Ltd. and United Steelworkers of America, Local 3950 (1999), 84 L.A.C. (4th) 77 (Armstrong). The arbitrator also referred to an article on the topic of surveillance in the workplace: N.M. Glass, "Surveillance" in Current Issues in Labour Arbitration (Continuing Legal Education of British Columbia, June 2003). [11] After reviewing those materials, the arbitrator held that in the absence of an express term in the collective agreement, there is no blanket prohibition of video surveillance in the workplace. He stated that where the use of surveillance is not surreptitious, but rather is disclosed to the employees as in this case, the test is "whether the surveillance is a reasonable exercise of management rights in all the circumstances of the case ". [12] The arbitrator held that the Employer had established a legitimate concern about theft and that the use of video surveillance was therefore permissible. He assessed the reasonableness of each of the nine cameras the Employer had installed with reference to its role in deterring and detecting theft: C1 is the camera which captures the cutting area. Even though it is now known to the employees, I do not accept that this camera meets the test of reasonableness. The evidence does not establish that this camera is consistent with the concern about theft. I direct that it not be used further. The evidence about camera C8 is that it covers a carousel where there are a large number of small valuable parts. This is a reasonable use of video surveillance equipment. I next turn to camera C9 which captures the employee entrance by the smoking area. The concern of the Union, which I accept, is that the camera may intrude upon the lunchroom area. There is no reason to restrain the use of the camera to monitor the entrance way. However, to the extent possible, this camera must be adjusted to prevent intrusion upon employees in the lunchroom. It is so directed. That leaves the six cameras C2 to C7 which were the subject of the original grievance. These cameras are for the purpose of deterring and detecting theft. They represent a legitimate exercise of management rights. The use of them is not a breach of the Collective Agreement. III. JURISDICTION A. Relevant legislation and law [13] The Court of Appeal's jurisdiction to review an arbitration award is stated in s.100 of the Code as follows: Appeal jurisdiction of Court of Appeal 100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1). [14] In order to understand that section, reference to the following provisions of the Code is also necessary: Purpose of Part 82(1) It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work. (2) An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute. Authority of Arbitration Board 89 For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may . . . (g) interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement Appeal jurisdiction of Labour Relations Board 99(1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that (a) a party to the arbitration has been or is likely to be denied a fair hearing, or (b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations. (2) An application to the board under subsection (1) must be made in accordance with the regulations. [15] The central issue to be resolved under s.100 is whether "the basis of the award is a matter or issue of general law not included in s.99(1)". The "basis of the award" has been described as its "real substance", "main constituent" or "determinative constituent": see Kinsmen Retirement Centre Assn. v. Hospital Employees' Union, Local 180 (1985), 63 B.C.L.R. 292 at 297 (C.A.) [Kinsmen]. [16] In interpreting the parallel provisions of the Industrial Relations Act, R.S.B.C. 1979, c.212, in Martin-Brower of Canada Ltd. v. General Truck Drivers and Helpers Union, Local No. 31 (1994), 87 B.C.L.R. (2d) 292, 112 D.L.R. (4th) 191 (C.A.), I reviewed the relevant case-law, including Kinsmen, supra, and summarized the proper approach at ¶25: With these authorities in mind, the analysis in determining whether this Court has jurisdiction to review an arbitrator's award should be along these lines: is the main or determining ingredient of the award a matter or issue of the general law? If not, the Court of Appeal has no jurisdiction. If so, is that matter or issue of the general law "included in section 108(1)[now s.99(1)]"? If it is, then again the Court of Appeal has no jurisdiction. Only if the basis of the award is a matter or issue not included in s.108(1) [now s.99(1)] does this Court have a power to review the award under s.109(1) [now s.100]. [17] Several subsequent cases have followed that same general approach: see, e.g. Vancouver Island West School District No. 84 v. Davies (1995) 5 B.C.L.R. (3d) 10, 57 B.C.A.C. 127 ¶14-18; United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999), 70 B.C.L.R. (3d) 74, 1999 BCCA 534 ¶11-16 [Fording Coal]; Weyerhauser Canada Ltd. v. Industrial Wood and Allied Workers of Canada (I.W.A. Canada), Local 2171 (2004), 23 B.C.L.R. (4th) 170, 2004 BCCA 6 ¶14-15. [18] Recently, in Health Employers' Assn. of British Columbia v. British Columbia Nurses' Union (2003), 20 B.C.L.R. (4th) 93, 2003 BCCA 608 [H.E.A. v. B.C.N.U.], Newbury J.A. further explained the proper approach to questions of jurisdiction under ss.99 and 100 as follows, at ¶114: [I]t is clear that the fact an award entails the application or interpretation of a statute of general application or a common law rule of general application will not in and of itself attract the jurisdiction of this court on review. The question in every case is the "basis" of the award. Once the basis is found to be a matter of general law, the fact that the award may involve other subsidiary matters which are not matters of general law does not mean this court thereby loses jurisdiction. On the other hand, if the basis of the award is an inconsistency with principles expressed or implied in the Code or in another "labour relations" statute, the fact that a matter of general law is somehow involved will not remove jurisdiction from the Board. Although Newbury J.A. dissented in the result of that case, I do not understand the majority to have disagreed with her statement of the correct test: see ¶153-54 per Mackenzie J.A. B. Analysis [19] How then is the basis of the arbitrator's award in this case to be characterized for the purposes of s.100? Is it the law of privacy, as the Union asserts, and therefore a matter of general law to which s.100 of the Code applies? Or is the basis of the award a consideration and determination of whether the surveillance is a reasonable exercise of management rights in all the circumstances, as the Employer asserts, and therefore an issue of labour relations within the jurisdiction of the Labour Relations Board under s.99 of the Code? [20] In my opinion, it is the latter. [21] The question the grievance raised was whether the Employer was justified in installing the cameras, an issue which raised not only questions of law relating to the employees' privacy rights, but more importantly the legitimacy of the Employer's concern about theft in the workplace and whether it acted reasonably to protect its property in all the circumstances. As the arbitrator's concluding camera-by-camera analysis makes clear, the basis of his award was the factual determination as to whether each camera represented a legitimate exercise of the management right to detect and deter theft. Viewed in that way, the basis of the award is properly characterized as a matter of labour management relations and not an issue of general law. [22] Appellant's counsel submitted that the issue before the arbitrator "engaged" questions about the nature and scope of the employees' right to privacy under the Privacy Act, Charter values and the common law. Those may well have been relevant considerations that relate to the general law, but the fact that they may have been "engaged" does not make them the basis of the award. As Mackenzie J.A. pointed out in H.E.A. v. B.C.N.U., supra ¶154, one must be careful not to bring "every link in the chain of reasoning leading to the decision or award within the description 'a matter or issue of the general law'" (citing Kinsmen, supra ¶16). [25] In order to come within s.100, the basis of the arbitrator's decision must be a general question of law that is its "real substance", "main constituent", or "determinative constituent", with application beyond the sphere of labour management relations. Only where such a question is determinative of the grievance is there a "matter or issue of the general law" under s.100. On the other hand, where the basis of the arbitrator's decision is primarily a factual determination, including whether the facts satisfy some recognized legal standard, the issue is not one of the general law: Fording Coal, supra ¶45-46, 57-58. [26] In the present case, although the arbitrator did state conclusions as to the appropriate tests for surreptitious and non-surreptitious surveillance in the workplace, he came to those conclusions after reviewing arbitration jurisprudence about how to balance the privacy of employees with the management rights of employers. He did not rely on any general law, such as the Privacy Act, to derive the applicable legal test. In this respect, the arbitrator's conclusions on matters of law do not extend to issues of "general law" but rather are confined to the sphere of labour management relations. The arbitrator's decision simply did not turn on the interpretation or construction of the provisions of the Privacy Act or other generally applicable legislation, unlike the awards at issue in Kinsmen, supra, Fording Coal, supra and Weyerhauser, supra. [27] Furthermore, it is clear that the true basis for the arbitrator's award in this case was not any matter of law but instead was primarily a factual determination. The main issues were the legitimacy of the Employer's concerns with theft and the reasonableness of the various cameras' locations in light of those concerns. Unlike the issues raised in the first two awards under appeal in Fording Coal, supra, those issues are not matters of general law. In my view, they are more similar to an arbitrator's decision about whether, as a matter of fact, an employer has fulfilled its duty to accommodate, which would fall within s.99, than about the general nature and scope of that duty, which would fall within s.100. [28] In my opinion any discussion of the law of privacy was, in this case, both confined to the particular context of labour relations and incidental to the arbitrator's factual decisions about whether the Employer's use of surveillance was a reasonable exercise of management rights in the circumstances. Accordingly, I conclude that the basis of the arbitrator's award was not a matter of the general law such as to give this court jurisdiction under s.100 of the Code. [29] The fact that the Union on this appeal now challenges the arbitrator's failure to directly apply Charter values or the Privacy Act does not bring the matter within s.100. It is the basis of the decision or award and not the basis of the appeal which determines the court's jurisdiction: Independent Canadian Transit Union, Local 1 v. Loomis Armoured Car Service Ltd., [1989] B.C.J. No. 371; Fording Coal, supra ¶32. IV. DISPOSITION [30] In my opinion, this court is without jurisdiction to hear the appeal, and it should be dismissed on that basis. "The Honourable Chief Justice Finch" I Agree: "The Honourable Mr. Justice Mackenzie" I Agree: "The Honourable Mr. Justice Lowry"