Is it legal to install cameras in long-term care facilities?By Maxime Arcand Lawyer
In Vigie santé vs. SQEES, section locale 298 (FTQ) (2017 QCCA 959), the Court of Appeal of Québec rendered an important ruling on the legality of a resident's family installing a camera in her room.
The dispute arose out of a union grievance against the installation of the camera. The union brought up the general principle that an employer cannot install a surveillance camera to monitor the work performance of an employee without reasonable grounds to do so (section 46, Charter of Human Rights and Freedoms [CQLR c C-12]).
In the case's arbitral award, arbitrator Jean Barrette sought to address two questions submitted by the parties that may be summarized as follows.
- Can an employer authorize the installation of a camera in a resident's room when the sole purpose of the camera is to ensure communication between the resident and her family?
- Can an employer authorize the installation of a camera in a resident's room when the purpose of the camera is to monitor the employees' work performance?
The arbitrator who heard the grievance responded to the questions by maintaining the previous state of the law, indicating that the camera was a surveillance camera and denying its installation. The Superior Court dismissed an application for review filed by the employer.
The decision was appealed and the majority of the Court provided a different analysis of the situation, highlighting particular facts of the case that may be summarized as follows.
- The camera is meant to ensure visual and sound contact between the resident and her family, who are the only people with access to the images.
- The employer has no access to the images that are captured and it is impossible to record the images, with the exception of screen captures.
- None of the employees complained about the installation of the camera.
- The family does not question the quality of the services provided by the long-term care facility.
In view of these facts, the Court of Appeal was of the opinion that the camera was not installed to monitor employees but rather to serve as a means of communication for the family. While the camera may indirectly monitor employee performance, the Court of Appeal likened the situation to that of a camera installed in a retail store, which also indirectly monitors employees. The Court recognized that the images that are captured may only be accessed by the family. These elements all serve to underscore the arbitrator's obvious error in reasoning with regard to the monitoring of employees' work performance. The Court therefore concluded that a fundamental distinction must be made between surveillance in the employees' workplace and the ties that the family seeks to preserve.
The Court of Appeal did not respond to the second question regarding the installation of a camera meant to monitor employee performance, affirming that the issue is theoretical in this particular case.
In short, the Court of Appeal did not amend the prior law with regard to an employer's right to monitor its employees using a camera system. Nevertheless, with the ruling, the Court of Appeal confirmed the right of residents in long-term care facilities to install or rely on a technological medium to communicate with their loved ones, even when the medium could indirectly lead to the monitoring of facility employees. Still, we believe that the images captured by a user or his/her family members could be admissible in evidence should they show reprehensible acts or behaviours by an employee, as the Superior Court ruled in Syndicat des travailleuses et des travailleurs du CSSS du Sud de Lanaudière (CSN) vs. Lalande (2010 QCCS 1239).