June 14, 2017
Giroux, Schrager, Parent
Appeal from a judgment of the Superior Court dismissing an application for judicial review of an arbitral award. Allowed, with dissenting reasons.
The issues submitted to the grievance arbitrator were whether an employer could allow the family of a resident of a residential and long-term care centre to install a camera in the resident’s room for the sole purpose of allowing the family members to see the resident, and whether the employer could allow the camera to be installed if its purpose was the surveillance of the centre’s employees. The arbitrator allowed the union’s grievance and ordered the employer to remove the camera that had been installed.
In the present case, the arbitrator’s decision was unreasonable. He based his decision on the premise that the camera installed in the resident’s room was intended to monitor the work performed by the employees providing her care. The evidence, however, does not reasonably support this conclusion. The employer had no power over the camera and did not have access to the images, which were not recorded; it merely allowed its installation. None of the employees complained that they felt spied on or that the camera imposed unfair or unreasonable working conditions on them. The arbitrator applied case law requiring an assessment of the employer’s reasons for monitoring its employees when it had no reason to do so. This case involves a refusal of a person’s right to have a camera in their domicile. The question the arbitrator should have asked was whether the employer was using the camera to monitor its employees. Moreover, sections 1, 4, 5, and 7 of the Charter of human rights and freedoms (CQLR, c. C-12) cannot be left out of the analysis. Residents’ rights go beyond the rights of aged and handicapped persons guaranteed by section 48 of the Charter, namely the right to protection against any form of exploitation. The arbitrator also committed an unreasonable error by confusing the surveillance of employees by a camera or any other means with the connection that a family may want to maintain with a loved one living in such a residence. As for the second issue, the lack of observable context prevents a reasonable response.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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