24/7 Camera in Nursing Home Is Not “Surveillance”

CCTV Camera or surveillance operating with monitor in background

The Quebec Court of Appeals recently held that a video camera in a resident’s room does not violate the privacy rights of retirement home employees, even though the video camera enabled viewers “to distinguish them, to hear them, to evaluate them and to photograph them.”[1]

The son of a resident in a Vigi Health retirement home set up a camera in his mother’s room to facilitate contact between his mother and her family members. The camera provided 24/7 visual and audio contact between the mother and her children. It transmitted live feed to the children’s cell phones and computers and showed all of the care given to the resident. Vigi Health and its employees were aware of the camera, and did not object to it.

Two months after the installation of the camera, the Quebec Union of Service Employees filed a grievance against Vigi Health, alleging that the camera violated their employees’ rights under the Quebec Charter. Specifically, the Union argued that the camera surveillance infringed upon the employees’ rights to dignity, honor and reputation, under s.4, to privacy, under s. 5, and to just and reasonable conditions of work, respecting health, safety and physical integrity, under s. 46.[2]

The two parties proceeded to arbitration, asking whether the employer could permit the installation of a camera in a resident’s room for the sole purpose of enabling her family members to see her, and, whether the installation of a camera could be permitted if its purpose were to supervise employees.

The arbitrator ruled in the union’s favour, finding that the camera amounted to surveillance of the employees, and therefore violated their rights under the Quebec Charter. It found that despite the son’s lack of intention to monitor the employees, the fact that the camera showed a continuous feed all of the care given to the resident, and allowed the viewers to hear the employees, distinguish them from one another, evaluate them, and photograph them, altogether constituted surveillance of the employees. The Superior Court of the District of Montreal affirmed the arbitrator’s decision, and Vigi Health, appealed to the Court of Appeals.

The Court of Appeals identified the standard of review to be one of reasonableness: a reviewing court can only intervene with the decision of an administrative tribunal “where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact.”[3] Using this standard, the Court of Appeals reversed the Superior Court’s decision, finding that the evidence did not reasonably support the arbitrator’s finding that the camera constituted surveillance and infringed upon the employees’ Quebec Charter rights.

The court’s decision noted that although s. 46 of the Quebec Charter protected employees against employer supervision at the workplace without just cause, it did not protect employees from the presence of any and all devices with the potential to capture image or sound. Since Vigi Health did not monitor or intend to monitor its employees using the camera, the camera did not constitute surveillance of the employees by their employer. The judge analogized the camera in the resident’s room to a security camera in a convenience store. If the arbitrator’s finding were applied, a security camera would also infringe upon employees’ rights, as it could indirectly monitor the work of employees. The judge found this result absurd, given that security cameras are tools for preventing crime, not for monitoring employees, and do not create unfair or unreasonable working conditions. Poulies Maska Inc. v. Union of Employees of Poulies Maska Inc supported this decision,[4] which found that filming store employees did not infringe upon the employees’ rights because the cameras were not installed to monitor them, only to protect the company’s premises, equipment and trade secrets. The camera was held to be an incidental consequence of the employer’s legitimate objective. In this case, the judge reasoned that the resident’s camera qualified even less as surveillance than security cameras, since it could not be accessed or controlled by the employer in addition to not being intended to monitor employees.

The judge also found that the camera did not constitute surveillance of the employees by the resident’s family, because the family was using the camera to maintain a relationship with their mother, not to monitor the employees. There had already been cameras in the resident’s previous two living environments enabling contact with family, so the camera did not appear to be a new development in reaction to Vigi Health’s employees. Further, the family had said that they did not need to monitor the employees, as they were very satisfied with their quality of service. The judge also pointed to the resident’s caregiver, who was present six days a week, and her family members, who regularly visited and video-called, finding that according to the arbitrator’s decision, the presence of family and caregivers would constitute indirect supervision violating s. 46 of the Charter, as they could observe the employees’ work. Finally, the judge reasoned that the resident had a right to have a camera in her room to maintain contact with family, given that her room could be characterized as her home where she lives permanently, which grants her that right.[5] Thus, the judge found that the employer could permit the installation of a camera in a resident’s room for the sole purpose of enabling her family members to see her.

Judge Giroux’s dissent characterized the standard of review of reasonableness, as one where, according to the Supreme Court’s decisions in Dunsmuir and Khosa, an administrative tribunal’s decision is reasonable if it complied with the principles of justification, transparency, and intelligibility, and belonged to the realm of possible and acceptable outcomes justified by the facts and law. In other words, a number of decisions may be reasonable, as long as their justification is reasonable. Here, Judge Giroux reviewed the arbitrator’s reasons of why the camera constituted surveillance, and found the decision to be reasonable, even if not necessarily the best decision. Since the arbitrator’s decision was one possible reasonable conclusion, Judge Giroux would have affirmed the decision.

[1] Vigi Santé ltée c. Quebec Union of Service Employees, Local 298 (FTQ), 2017 QCCA 959 (CanLII), <http://canlii.ca/t/h49pp> at para 90.

[2] https://www.canlii.org/fr/qc/legis/lois/rlrq-c-c-12/derniere/rlrq-c-c-12.html

[3] Fraternité des policiers et policières de la MRC des Collines-de-l’Outaouais c. Collines-de-l’Outaouais (MRC des), 2010 QCCA 816 (CanLII), <http://canlii.ca/t/29ghd> at para 24.

[4] Charter of Human Rights and Freedoms, RLRQ c C-12, <http://canlii.ca/t/69v6g>.

[5] The judge found that s. 1, 4, 5, 7, and 48 of the Quebec Charter supported the resident’s right to have a camera in her own home to maintain contact with her family.

This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.