Long-Term Care Law Newsletter
Video Surveillance in Nursing Homes: Are there any new developments?
Video surveillance has long been of interest to long-term care facilities. Many long-term facilities have surveillance of common areas, such as corridors. What if family members of a resident want to install a camera in a resident’s room to stay in closer contact? A recent decision out of Quebec addressed this issue. We summarize that case here, and comment on what it might mean for you.
Family members of a resident in a long-term care facility in Quebec set up a video camera (with the permission of the long-term care home) in the resident’s room. The family members were entirely satisfied with the level of the care their relative received. Two of the resident’s children lived overseas so did not have regular access to the facility. The family wanted the camera in place to provide a visual connection between them and the resident. The video might show employees who were in the resident’s room. Family members had sole access to the images on the camera; the long-term care home had no access whatsoever. The family members asked the facility for permission to install the camera, and the facility agreed.
The union representing employees at the facility filed a grievance challenging the facility’s decision to permit the camera installation. It appears that the union’s primary argument was that the operation of the camera was not a “fair and reasonable” condition of employment. The Quebec Charter of Human Rights and Freedoms states that, “Every person who works has right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being”.
The union and the employer agreed to remit the following two questions to an arbitrator:
- Is the employer permitted to allow family members to install a camera in the care home for the sole purpose of viewing a relative who lives there?
- Should the employer permit a resident’s family member to install a camera to conduct surveillance of the employees working in the care home?
The Arbitrator perceived the camera as surveillance and, ultimately, found that there was no justification for it. Given this conclusion and the fact that there was no justification under the Quebec Charter of Human Rights and Freedoms the Arbitrator upheld the grievance and ordered that the camera be removed.
The long-term care home applied for judicial review of the arbitrator’s decision. The Quebec Superior Court dismissed the application holding that the Arbitrator’s decision was a reasonable application of the Quebec Charter of Human Rights and Freedoms, specifically section 46.
Undeterred, the long-term care home appealed the decision to the Quebec Court of Appeal. The majority of the Court of Appeal in that case found that the Arbitrator’s conclusion that the camera was a surveillance device was unreasonable (Vigi Santé ltée c. Syndicat québécois des employées et employés de service, section locale 298 (FTQ), 2017 QCCA 959). The majority focused on the true intent behind the installation of the camera, which was to enable the resident to stay in contact with her family. Justice Parent focused on the fact that the long-term care facility was the resident’s home, not just the employees’ workplace. He wrote:
- Yes, the long-term care facility was permitted to allow a resident’s family to install a camera for the sole purpose of viewing that resident; and
- The camera did not result in surveillance of employees. As there was no surveillance of employees, there was no need to address the second question of whether it was reasonable.
The Court overturned the Arbitrator’s ruling, thereby allowing the camera to remain in the resident’s room.
What does this decision mean for long-term care facilities in Nova Scotia?
While the legal regime in Quebec is a bit different, this case is still helpful. It certainly highlights the sensitive nature of cameras in the workplace. In this case it was a matter of balancing the compelling wish for family members of a resident to remain in contact with her, against the privacy rights of employees. The scales tipped in favor of allowing the installation because (a) the resident’s room was her home and she had rights there; and (b) employee surveillance was not the reason for having the camera installed.
If, however, employers opt to undertake employee surveillance themselves, the surveillance must be for legitimate purposes and respect employee privacy. Depending on the nature of the workplace, the privacy expectations may vary. For example, an office worker may attract a greater expectation of privacy than an employee of a liquor store, as offices do not generally have any surveillance cameras while a retail business (especially a liquor store) does. Additionally, employees who work with vulnerable people (such as long-term care employees) can probably expect to have a lesser degree of privacy than some other employees. Also, employers should provide notice that the employees are or may be under surveillance.
This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and emerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are encouraged to consult their professional advisers before taking any action on the basis of information contained in this newsletter.
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