Toronto Catholic District School Board v. Canadian Union of Public ...

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Case Name:
Toronto Catholic District School Board
v. Canadian Union of Public
Employees, Local 1280 (Colella Grievance)
IN THE MATTER OF an Arbitration
Between
Toronto Catholic District School Board (the "Employer"), and
Canadian Union of Public Employees, Local 1280 (the "Union")
AND IN THE MATTER OF the Discharge Grievance of Anna Colella
[2011] O.L.A.A. No. 180
No. MPA/Z100046
Ontario
Labour Arbitration
Toronto, Ontario
Panel: Robert J. Herman (Arbitrator)
Heard: February 17, 2011.
Award: April 5, 2011.
(23 paras.)
Labour arbitration -- Process and procedure -- Arbitration -- Preliminary objections.
Labour arbitration -- Evidence -- Objections.
Labour arbitration -- Evidence -- Admissibility and weight -- Electronic surveillance.
The union raised a preliminary objection to the admissibility of videotape evidence. The grievor, a
caretaker at the employer school board, claimed that she had been unjustly dismissed. The employer
sought to adduce a videotape from surveillance cameras located in its schools. The employer
typically used the cameras for safety purposes and did not typically review the videotapes. The
employer unilaterally adopted a policy, which included a statement that video surveillance could not
be used for monitoring staff performance. The employer, in investigating complaints that the

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grievor was not doing her work and was leaving the school during work hours, reviewed the
videotapes to determine whether the grievor had answered its questions honestly.
HELD: Preliminary objection dismissed. It was not unfair or unreasonable for the employer to have
reviewed the videotapes. The employer did not review the videotapes of the grievor as part of a
practice of checking tapes for performance deficiencies. It had received a complaint and was
investigating it, and the grievor had provided information that did not appear to be accurate. It
would have been detrimental to a full and fair hearing to preclude either party from seeking to rely
upon the arguably relevant videotape evidence.
Statutes, Regulations and Rules Cited:
Labour Relations Act, s. 48(12)
Municipal Freedom of Information and Protection of Privacy Act, Part II, s. 31, s. 31(b), s. 32(c), s.
33, s. 51, s. 51(1), s. 51(2), s. 52(3), s. 52(4)
Appearances:
For the Employer: Sharon Duffy, Bob Dubniak.
For the Union: Denise Carter, David Gorringe, George Ferlenda, Anna Colella.
INTERIM AWARD
1 The grievor, Ms. Anna Colella; is a caretaker who was working on modified duties for a
number of years at one of the schools operated by the Employer, the Toronto Catholic District
School Board (the "Board"). She was discharged for improper performance, leaving the premises
without authorization, taking extended breaks, incorrectly documenting cleaning tasks and break
times, and untruthfulness. A grievance was filed over her discharge. It is agreed that I have
jurisdiction.
2 The parties agreed to first address the Union's preliminary objection to the admissibility of
certain videotape evidence. The instant decision deals only with this preliminary objection.
3 For a number of years, the Board has used surveillance cameras in some of its schools. The
cameras are located in a number of common areas, such as hallways and cafeterias, and on the
exterior of school buildings. The cameras are in plain sight, readily visible, and there are signs
posted in the schools indicating that the premises are under such surveillance. Access to the

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videotapes is restricted to administrative staff, principals and vice-principals, and the Manager of
Operations. The camera system has typically been used by the Board to protect the safety of persons
on school premises and to protect property; for example, to deter break-ins, vandalism, burglary,
fires being set and so on. The Board does not review the videotapes at regular intervals nor does it
review them regularly or occasionally to check on the performance of employees. Prior to the
instant case, videotapes were reviewed perhaps six times by Board personnel, to review incidents
such as a burglary or a fire, and once to verify when a caretaker departed from a school. In this
latter case, no discipline resulted. Until the instant matter, the videotape system has not been used in
support of any disciplinary action against an employee. The Union has been aware of the use of the
video surveillance system and does not object to the use of the system for purposes such as
reviewing videotapes to assist in deterring burglaries or fires or catching those responsible for them.
4 Part II of the Municipal Freedom of Information and Protection of Privacy Act (the "Act")
applies to the Board. Relevant sections read:
Use of personal information
31. An institution shall not use personal information in its custody or under its
control except,
(a)
if the person to whom the information relates has identified that
information in particular and consented to its use;
(b)
for the purpose for which it was obtained or compiled or for consistent
purpose; or
(c)
for a purpose for which the information may be disclosed to the institution
under section 32 or under section 42 of the Freedom of Information and
Protection of Privacy Act.
Where disclosure is permitted
...
32. An institution shall not disclose personal information in its custody or under
its control except,
(c)
for the purposes for which it was obtained or compiled or for a consistent
purpose;
...

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Consistent purpose
...
33. The purpose of a use or disclosure of personal information that has been
collected directly from the individual to whom the information relates is a
consistent purpose under clauses 31 (b) and 32 (c) only if the individual might
reasonably have expected such a use or disclosure.
Information otherwise available
51. (1) This Act does not impose any limitation on the information otherwise
available to a party to litigation.
(2) This Act does not affect the power of a court or tribunal to compel a witness to
testify or compel the production of a document.
Non-application of Act
...
52. (3) Subject to subsection (4), this Act does not apply to records collected,
prepared, maintained or used by or on behalf of an institution in relation to any of
the following:
...
Exception
1. Proceedings or anticipated proceedings before a court, tribunal or other
entity relating to labour relations or to the employment of a person by the
institution.
(4) This Act applies to the following records:
...
1. An agreement between an institution and a trade union.
5 The Information and Privacy Commissioner of Ontario has issued "Guidelines for Using Video
Surveillance Cameras in Schools" (revised July 2009) (the "Guidelines"). On page 1, the Guidelines

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state "These Guidelines were created to assist school boards intending to use or expand existing
video surveillance to introduce these programs in a manner that ensures stringent privacy controls.
The IPC recommends that all school boards using video surveillance implement formal policies
governing their use." On page 13, the Guidelines state "Video surveillance should not be used for
monitoring staff performance." The Guidelines do not make reference to sections 51or 52 of the
Act.
6 The Board has adopted a Policy concerning "Video Security Surveillance" (the "Policy"). There
is no evidence that the Policy was negotiated with and agreed to by the Union, nor is the Policy
found in the Collective Agreement. Regulation #7 of the Policy states "Video surveillance shall not
be used for monitoring staff performance."
7 In this context, the events in issue took place. During the last week of January, 2010, the
grievor's supervisor, Fabrizio Macieri, received a phone call from caretakers at Michael Power/St.
Joseph, one of the Board schools. They phoned to say that they needed to see Macieri urgently.
Because of other demands, Macieri could not attend at the school until Friday, January 29, 2010.
That day, he met with some of the caretakers there. They were irate and upset because they claimed
that the grievor was not performing her work. They complained that she was spending hours in the
computer room and was palming off her work onto them. They also claimed that she would leave
the building. Macieri and the caretakers walked around parts of the building. Areas the grievor
should have cleaned had not been cleaned. Macieri took photos of those areas. He told the other
caretakers to clean up the grievor's areas that had not been cleaned. He also inspected the grievor's
entries in the log books, books the grievor was required to fill out daily, and he found parts of them
to be empty or tasks recorded there that had apparently been performed by others. The caretakers
told Macieri that the grievor had been doing nothing since November.
8 Macieri spoke with his manager, Suzy Kawasaki, later that day. On Wednesday, February 3,
2010, Macieri and Kawasaki drove to the grievor's school, parking across the street. While sitting in
the car, they observed the grievor leaving the school premises, crossing the street and going into a
Tim Horton's fast food outlet and then into a variety store. Caretakers are not to leave their school
during shifts without telling their supervisor, logging in that they are leaving, or by calling security.
Macieri and Kawasaki went across the street to greet the grievor but somehow missed encountering
her. They then went into the school and spoke to the Principal and Vice-Principal, explaining why
they were there. They saw the grievor enter the school, and found her shortly thereafter having
coffee with another cleaner in the library. By then, about 30 to 40 minutes had passed since they
had seen the grievor leave the premises to go to the Tim Horton's.
9 The other cleaner left the library at their request. When asked where she had gotten the coffee,
the grievor replied that someone else had brought it for her. When asked what work she had
performed, the grievor showed Macieri and Kawasaki the rooms she said she had cleaned. They
were the same rooms Macieri had asked other cleaners to clean the Friday before because the
grievor had not cleaned them. When asked again about buying the coffee, the grievor again denied

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having bought it, acknowledging that she was aware that she was not to leave the premises during
her shift. She was then told that they had seen her leaving the building and were aware of how long
a break she had been taking. At that point, the grievor told them that she didn't want to say anything
further until she spoke with her Union representative. The grievor was asked to return her keys and
leave the school, and she was advised that she would be contacted for a meeting. The grievor did as
requested. Macieri then questioned other caretakers on shift.
10 Macieri and Kawasaki determined that the grievor had been lying to them about leaving the
school to go get coffee and suspected she was also lying to them about what work she had done.
While at the school on February 3, 2010, they reviewed the grievor's log books and sign-in/sign-out
sheets and took copies of them, discovering that there were now discrepancies between them and
what had been in them when Macieri had looked at them previously on January 29, 2010. Then, no
tasks were entered for January 29, 2010, but on February 3, 2010, a whole week of tasks had been
entered.
11 Macieri checked the videotapes, to see whether they verified or contradicted what the grievor
was telling them about the work she had performed. He reviewed the tapes for February 3, 2010,
and because of the complaints from the other caretakers and her untruthfulness about the incident on
February 3, 2010, he also reviewed about six or seven days randomly selected from the previous
three to four weeks. Because the Union objects to the introduction of the videotapes, the Board did
not lead evidence of what was discovered on the videotapes when Macieri reviewed them.
12 In its submissions, the Union does not challenge the use of surveillance cameras in the schools
or the taking and collection of videotape recordings but it does object to the admissibility of the
videotape evidence in this proceeding. The Union submits that the Board is seeking to use the
videotapes of the grievor at work for purposes of monitoring her performance, contrary to its own
policy that indicates it will not do so. It makes no difference, the Union argues, whether the
videotapes are reviewed regularly in order to monitor how staff are performing their work or in a
particular instance because of concern over a specific staff member. In either case, the Union
submits, the Board is using the videotapes in order to monitor staff performance. It asserts that the
Guidelines dictate that the Board devise and publish a policy if it intends to use surveillance
cameras in the schools, and because of the provisions of the Act, any policy it adopts has to be in
compliance with the Guidelines. While the Policy as written complies with the requirements of the
Guidelines, the Union submits that the Board's actions in reviewing the videotapes concerning the
grievor and seeking to introduce them in this proceeding are in breach of the Policy.
13 The Board responds that the Guidelines are just "guidelines", recommendations or suggestions
not binding upon the Board. It submits that the provisions of the Act do not apply to the matter in
issue because of sections 51(1) and (2), which contemplate that a party to litigation will be entitled
to production or disclosure consistent with applicable rules, despite any other provisions of the Act.
When read in conjunction with section 48 (12) of the Labour Relations Act, the Board submits, it is
clear that an arbitrator retains authority to order production of material relevant to the matter and

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authority to admit such evidence in the arbitration. Even if the Act did apply to the admissibility of
the videotape evidence, sections 31 (b) and 32 (c) permit the use of material collected for a purpose
consistent with the purpose for which it was obtained, and section 33 indicates that a use is for a
consistent purpose where the individual might reasonably have expected such use or disclosure. The
Board asserts that it would reasonably have been anticipated by the grievor and/or the Union that
the videotapes would be reviewed to determine whether the grievor was being truthful about the
work she had performed. The Board submits that the review of the videotapes and its intention to
introduce them in evidence is not inconsistent with the Policy statement that video surveillance will
not be used to monitor staff performance. Here, it notes, the Board responded to a particular
complaint from fellow caretakers that the grievor was not performing her job. it observed the
grievor and interviewed her and other caretakers, examined some of the rooms she was to have
cleaned, as well as her log book entries and other records, and determined that the grievor had not
been truthful and probably had not been performing her job. Only then did it review some of the
videotapes. The Board submits that this does not constitute "monitoring" performance. It argues that
it would be unfair if the grievor could lie about some events and the Board was prevented from
demonstrating through the videotapes that the grievor was lying. Alternatively, the Board notes that
its Policy is not a policy agreed to or adopted by the Union, but a policy it has unilaterally adopted
outside the Collective Agreement, and even its actions might be in breach of the Policy, the
existence of the Policy does not preclude it from seeking to tender the videotapes in evidence.
14 The parties referred to a number of arbitration decisions, but none of them consider what
constitutes "monitoring" staff performance.
15 For purposes of the objection, the videotapes are assumed to contain arguably relevant
material. Turning first to the issue of the applicability of the provisions of the Act, neither party
relies upon section 52 (3) of the Act, which stipulates that the Act does not apply to records used by
an institution in relation to a proceeding before a tribunal or other entity relating to labour relations
or the employment of the individual by the institution. This arbitration is such a proceeding.
Accordingly, the Act may not apply at all to the records in question insofar as the issue of
introducing those records into evidence in this arbitration is concerned. However, whether or not
section 52 (3) by itself excludes the application of other provisions of the Act to the matter in issue,
section 51 of the Act preserves the authority of an arbitrator to rule upon production and
admissibility questions despite other provisions of the Act.
16 As to the impact of the Information and Privacy Commissioner's Guidelines, there does not
appear to be any authority for the proposition that school boards are required by law to follow the
Guidelines. As noted above, at page 1 the Guidelines state that "These Guidelines were created to
assist school boards intending to use or expand existing video surveillance to introduce these
programs in a manner that ensures stringent privacy controls. The IPC recommends that all school
boards using video surveillance implement formal policies governing their use." These are
"guidelines", recommendations for policies to be adopted by school boards. And as "guidelines",
absent statutory or regulatory requirement that they be applied and followed by the Board, the

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Guidelines are not binding upon the Board. Further, as the Guidelines do not refer to sections 51
and 52 of the Act, it is not easy to discern from them what the Commissioner's position is or would
be on the use of videotape evidence in an arbitration, the matter in issue here.
17 The issue then is whether the Board Policy precludes the use of videotapes in this proceeding.
The Policy states that "Video surveillance shall not be used for monitoring staff performance." The
videotapes were not surreptitiously made, and the grievor and other employees were aware that the
areas in which they worked were being filmed. The word "monitoring" suggests a viewing,
checking or surveillance over a period of time, so that "monitoring" staff performance involves
viewing employees' performance over a period of time to determine how they are performing.
Monitoring would occur, for example, if the Board were to regularly or periodically review the
videotapes as a method of checking the work performance of employees. The Policy does not
permit this use of the videotapes. However, the Board did not review the videotapes of the grievor
at work as part of a general review of the videotapes to see how any other caretakers or the grievor
were performing their work.
18 Rather, the Board reviewed the videotapes for a particular period of time after it had received
a complaint about the grievor's performance related to that period and then investigated that
complaint. Before it reviewed any videotapes, the Board uncovered evidence of non-performance,
and after interviewing her and inspecting her log books and other written records, it believed that
the grievor was not being truthful about her behaviour and performance, both reasonable
conclusions for the Board to have reached based upon the evidence it had by then discovered. Only
at that point did the Board review videotapes of the grievor at work, and it did so for days within the
period subject of allegations by the other caretakers. The videotape of February 3, 2010 was first
reviewed, and then other dates to determine if the grievor had been lying about cleaning her
assigned rooms. Those videotapes were not reviewed as part of a pre-existing monitoring process,
but as a search for evidence with respect to particular allegations against the grievor, allegations the
grievor denied and that the Board on reasonable grounds believed to be true. In these circumstances,
the review of the videotapes did not constitute part of a "monitoring" of staff performance, and
seeking to introduce then into evidence does not constitute or sanction a breach of the Policy.
19 Alternatively, assuming that the introduction of the videotapes into evidence would be in
breach of the Policy, it does not follow that the videotapes would not still be admissible. There is no
objection to the recording of the videotapes and, as noted, for purposes of the objection, the
videotapes are taken to contain arguably relevant evidence. Since the Policy is not policy contained
in a collective agreement or otherwise reflective of an agreement between the parties, the
evidentiary issue is whether it would for some reason be unfair, unreasonable or inappropriate to
permit the introduction of this evidence at the arbitration.
20 In the circumstances, I cannot find that it was unfair or unreasonable for the Board to have
reviewed the videotapes. The Board did not have a practice of reviewing tapes to monitor staff
performance, and it did not review the videotapes of the grievor as part of a practice of checking

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tapes for performance deficiencies. It had received a complaint and was investigating it, and the
grievor had provided information that did not appear to be accurate. The videotapes existed and
could be checked to verify or to undermine the grievor's assertions. It was reasonable for the Board
to check the videotapes, and indeed, it might have acted unreasonably had it not checked them to
see if there was evidence confirming the grievor's story, just as it might have acted unreasonably
and unfairly if the Board had denied access to the videotapes to the Union. If the videotapes support
the grievor's story, it would be unfair to prevent the Union from seeking to rely upon them in this
arbitration. Similarly, in the face of the reasonable grounds it had for its belief that the grievor had
not been performing her job adequately and the grievor's denial of certain facts obtained through its
investigation, it would be unfair to preclude the Board from relying upon videotape evidence
permissibly and openly recorded that the Board asserts will demonstrate what really occurred.
Precluding the Board from relying upon the videotape evidence would be particularly unfair if the
grievor were to testify to a version of events that the videotapes demonstrate to be inaccurate.
21 Accordingly, even if the reliance upon the videotapes here would somehow be in breach of the
Board Policy, it would in my view be detrimental to a full and fair hearing to preclude either party
from seeking to rely upon the arguably relevant videotape evidence.
22 In the result, the Board is not precluded from seeking to introduce into evidence the
videotapes in issue.
23 This matter will continue on dates previously scheduled.
Dated at Toronto this 5th day of April, 2011
Robert J. Herman - Arbitrator
qp/s/qlspi