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2006 PSLRB 70
Interim decision -- Admissibility of videotape evidence -- Refusal to reinstate to her former position -- Indefinite suspension – Termination -- Canadian Charter of Rights and Freedoms -- Reasonableness of the decision to videotape and the manner in which it was carried out -- Right to privacy -- Bad faith
The grievor was on leave following an accident at work and was in receipt of worker’s compensation benefits -- the provincial worker’s compensation board was advised that she had been seen by co-workers shopping at a mall, and a decision was made by the worker’s compensation board to investigate the grievor and videotape her in public places -- based on the results of the investigation, the grievor’s benefits were suspended and then terminated -- the grievor, with the support of her doctor, then requested of the Department of Foreign Affairs and International Trade (the employer) that she be able to return to work, but her request was refused -- given the results of the investigation the employer felt it had no choice but to suspend the grievor pending it’s own investigation -- following the employer’s investigation her employment was terminated -- the grievor’s representative objected to the employer’s intention to file in evidence the videotaped surveillance -- the adjudicator decided that, in order to be admissible, the employer needed to prove that, given the circumstances, it was reasonable to film the grievor and that the surveillance had been carried out in a reasonable manner without being unduly intrusive and was proportionate to the gravity of the situation -- the adjudicator rejected the employer’s argument that because it had not been the one to make the videotape it could not therefore be constrained to ensure that the evidence in question respected the grievor’s rights to privacy -- the adjudicator rejected the grievor’s argument that the employer had acted in bad faith -- the adjudicator also rejected the grievor’s contention that the employer should have directly questioned the grievor’s co-workers regarding the supervisor’s statements, as this would be more intrusive to the grievor’s private life and reputation -- he further rejected the grievor’s contention that she should be re-examined -- the worker’s compensation board’s decision to proceed by videotaping the grievor was appropriate and justified given the circumstances -- the adjudicator concluded that the evidence respected the approach set out in the jurisprudence and was admissible.