Quebec: Considerations When Conducting Surreptitious Video Surveillance

By Katie Nadworny February 19, 2020
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video camera lens

​The doctor was in the parking lot when he spotted his patient. She was coming in for a company-ordered exam, because she had been on paid leave for months due to a shoulder injury. As the doctor watched her, he noticed something strange: The patient seemed to be using her shoulder normally, even carrying her purse on her injured shoulder.

Based on what he had seen, the doctor recommended that the employer conduct video surveillance in a recently litigated case about her.

Some Limitations on Surveillance

Laws in Quebec are fairly permissive when it comes to employers' surveillance of their employees, as long as the underlying reasoning for the surveillance is sound. The landmark ruling in Canada that addresses surveillance in the workplace is the Bridgestone/Firestone decision from 1999, which dealt with a case of an employee exaggerating an injury to extend a paid medical leave.

Bridgestone/Firestone "basically said that surveillance of employees by an employer is not illegal per se," said Guy Lavoie, an attorney with Lavery in Montreal. So long as the employer has reasonable grounds to believe that the employee is lying about or mis-using a medical condition as an excuse not to work and still get paid, surveillance will be allowed, he added.

Employees can still expect a reasonable level of privacy in the workplace.

"The main concern that the regulators have is to make sure that we're not implementing video surveillance in a way where you would be coincidentally filming someone when doing their job," said Antotine Aylwin, an attorney with Fasken in Montreal. "For example, if you have some concern about some[one] stealing in the workplace, you would film the place where the things that were stolen would be, instead of filming the individuals constantly to see what they're doing."

Suspicion of Fraud

In the recently litigated case, after the doctor's recommendation to conduct video surveillance, the employee with the injured shoulder was followed and filmed three times, all of them in public places. In the videos, she is seen shopping and going about daily life, with a shoulder that appears to be completely uninjured.

The employer fired her, but, because she was a member of a union, the case went to an arbitrator. The arbitrator asserted that the employer had not had reasonable grounds to conduct surveillance.

The case was appealed.

The arbitrator's reasoning was incorrect, according to the Court of Appeals, which ruled that the doctor's strong suspicion of fraud was reason enough to conduct the surveillance. 

Moreover, the workers' compensation fraud captured in the surveillance made the surveillance evidence admissible. The arbitrator's ruling was overturned.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

Strategic Decision Whether to Use Surveillance

Quebec is the only place in Canada where, before a labor tribunal, a lawyer can put an employee involved in litigation on the stand as the first witness and cross-examine him or her at length before divulging that surveillance was undertaken. 

Surveillance, of course, doesn't always show evidence of fraud. Sometimes, it reveals nothing. Other times, it proves the employee's claim. If they are consulted beforehand, lawyers recommend that companies do not undertake surveillance unless there are reasonable grounds to suspect that it will be successful.

Katie Nadworny is a freelance writer in Istanbul. 

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