Will in-cab cameras survive privacy challenges?

TORONTO, Ont. — Canada has a lot of workplace privacy legislation on the books, some of which can be applied to driver-facing cameras. Some jurisdictions seem favorably disposed to the video monitoring of operators (drivers) in safety-sensitive positions, while others suggest cameras might be OK, as long as no other reasonable mechanism exists to achieve the same results.

Tobi Cohen, senior communications advisor for the Office of the Privacy Commissioner of Canada, told Today’s Trucking that “video surveillance should only be deployed to address a real, pressing and substantial problem, and it should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative.”

For example, the Commissioner’s Office made submissions to Parliament regarding Bill C-49, which mandates voice and video recorders in trains and became law in May.

“In the context of C-49 we acknowledged the impact of audio/video recordings on employee privacy but based on the evidence put forward by the Transportation Safety Board, we generally accepted that their use for safety reasons was reasonable, provided appropriate controls are in place to prevent use for inconsistent purposes,” Cohen said.

Policy and guidelines coming from the Privacy Commissioner of Canada through the Personal Information Protection and Electronic Documents Act (PIPEDA) apply only to federally regulated business, including inter-provincial and international trucking.

According to Lyndsay Wasser, a partner the McMillan law firm, several provinces also have legislation in place regarding employee privacy that would apply to intra-provincial operators. In Ontario, for example, there is no legislation in the private sector that applies to employee personal information.

“That doesn’t mean there are no laws,” she says. “There are tort laws relating to privacy, such as ‘intrusion upon seclusion’, which is invading someone’s privacy in a manner that would seem highly offensive to a reasonable person.”

Typically, monitoring for safety reasons, to track stolen vehicles, or to improve client service efficiency is more likely to meet the test for being reasonable than monitoring for employee performance for management purposes, she says. Usually, but there are no guarantees.

The Quebec division of an international food service company recently lost a court challenge to its use of driver-facing cameras as a safety tool. The action followed a grievance filed by the Teamsters Union. In its decision the Quebec Superior Court ruled — we paraphrase here — that installing driver-facing cameras was a “preemptive” measure rather than a response to a specific risk, such as a pattern of repeated driver errors, which did not warrant such an invasive solution. Less-invasive measures were available, such as cameras that face forward only.

“We are on record as opposing driver-facing cameras as they infringe upon a driver’s right to a reasonable expectation of privacy in the vehicle,” says John McCann national freight director, Teamsters Canada. “We are satisfied with the Quebec Superior Court ruling that found there are less invasive ways of monitoring drivers and improving fleet safety.”