Dash cams are often used by commercial vehicle fleets, and driving-facing models are becoming evermore popular — allowing employers to track behaviours such as situational awareness, distracted driving, and seat belt use.

But the increasing use of driver-facing cameras emphasizes the need to balance an employee’s right to privacy with an employer’s obligations to maintain a safe work environment.

The Personal Information Protection and Electronic Documents Act (PIPEDA) governs the collection, use and disclosure of personal information in the course of commercial activity and across borders. And it applies to employee information connected to federal work, undertakings or businesses. As a result, PIPEDA applies to transportation-related companies that employ drivers who cross provincial or federal borders on a regular basis.

PIPEDA also applies within provinces that do not have their own substantially similar private-sector privacy legislation. Currently, only Quebec, British Columbia, and Alberta have their own legislation. From a best practices standpoint, guidance from the Office of the Privacy Commissioner suggests that non-federally-regulated businesses should comply with PIPEDA, even with respect to their employees.

Although PIPEDA applies to federally regulated employees and does not expressly mention independent contractors, it is highly likely that an even stricter consent standard would apply to independent contractors.

Recordings and live streaming

Personal information about an identifiable individual includes any factual or subjective information about them. So video footage of a commercial driver operating a vehicle constitutes “personal information” for the purposes of PIPEDA. Even if the information is not a recording, such as real-time video surveillance, it constitutes personal information as long as it is about an identifiable individual.

The absence of a recording does not change the fact that the information is still personal.

PIPEDA also requires organizations to collect, use or disclose information with the knowledge and consent of the individual, and only collect personal information the businesses actually need. So fleets should reflect on whether there is a legitimate business reason to collect the information and whether there are less intrusive ways to obtain it.

Prior to requesting driver consent, meanwhile, drivers should be told why dash cams are being installed, how the devices will work, and how the video footage will be collected and stored — including how that footage might be used and to whom it might be disclosed in the future.

Access to footage should remain on a need-to-know basis, with everything stored in a safe and secure manner.

There should also be a written policy about the retention period for dash-cam footage. Drivers can request access to the retained recordings and other personal information, and should have the right to challenge the accuracy and completeness of the files.

They’re all details to be reflected in a company privacy policy. Have drivers sign an acknowledgement of receipt, and confirm that they have read and understood the policy.

Case law about inward-facing dash cams

In 2017, a Quebec court ordered Sysco Quebec to remove driver-facing cameras, citing a gross invasion of employee privacy rights. But this decision was not binding on the rest of Canada.

Since then, there have been arbitration board decisions in Ontario, Quebec, and British Columbia, each ruling that the employer’s use of inward-facing dash cameras was reasonable under the circumstances, either for accident prevention and safety purposes, or to address a specific safety issue. This suggests that the arbitration boards are moving away from the Sysco decision.

Arbitrators in these cases found the employers acted reasonably, given the dash cams served legitimate purposes that outweighed the intrusion on employee privacy, and there were no less intrusive alternatives to achieve the same objectives. In most cases, the in-cab cameras were used in a minimally intrusive manner. There was no real-time surveillance, and recordings were only saved in case of sudden braking, acceleration, or similar driving events.

The above-noted cases involving Linde Canada, BFI Canada, and Lafarge Canada also reject the argument that in-cab cameras should be removed or disabled.

In the Linde case, the arbitrator noted there were certain risk factors that could only be identified by a camera filming what was happening inside the vehicle — such as issues with sleep apnea, cell phone use while driving, or breached seatbelt rules. With BFI Canada, the arbitrator noted that “only the cab cam could confirm that the driver was alert, not distracted, and therefore fully aware of road conditions.”

Lastly, with Lafarge Canada, a witness testified about the stress caused by the in-cab camera. Nevertheless, the arbitrator found that the in-cab camera was an important part of the system because it depicted driver behavior that is not captured by exterior cameras, or behavior which can only be inferred from those records. Those behaviors include maintaining situational awareness, checking mirrors, distracted driving, and using seat belts.

These cases suggest that inward-facing dash cameras are generally being accepted in Canada where the employer can demonstrate that it had a safety problem — preventing accidents and supporting safety goals. They recognize that it is in the public’s interests for trucks to be driven safely.

However, it is extremely important to comply with obligations under privacy laws, such as notifying drivers about cameras prior to installation; having a robust privacy policy that outlines exactly how and why the camera is being used (and making sure the policy is being followed); having a retention policy setting out how long the footage will be maintained and under what circumstances; and using the camera in a way so that it is only recording during driving incidents and not on a continuous basis.

These cases don’t offer a blanket approval for trucking companies to use inward-facing dash cameras without restriction.