Category Archives: Privacy

When a union’s representational rights and an employee’s privacy rights collide

The Supreme Court of Canada recently issued a decision confirming that there are limits on an employee’s right to privacy vis-à-vis his or her union.

In Bernard v. Canada (Attorney General), the Court held that a union was entitled to the home contact information of the employees it represented, and that individual employees did not have the right to opt-out of having their information shared with the union.

Elizabeth Bernard was a member of a bargaining unit in the federal public service, but was not a member of the union that represented her. Ms Bernard strongly objected to her employer providing the union with her home contact information. Ms Bernard challenged the union’s right to obtain that information all the way up to the Supreme Court of Canada.

The Supreme Court of Canada dismissed Ms Bernard’s appeal, and provided the following general commentary on the relationship between employers, employees and unions, and the impact of that relationship on employees’ privacy rights:

  • A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit. While an employee is undoubtedly free not to join the union, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
  • The Court endorsed two basic rationales as to why it was an unfair labour practice for the employer to refuse to provide the union with employee home contact information.
    • A union needs an effective means of contacting employees in order to discharge its representational duties.
    • There is a special, tripartite relationship between the employee, the employer and the union, which means that the disclosure of the information to the union is not like disclosure of the information to the public.
  • Although section 2(d) of the Charter protects freedom from association as well as freedom of association, it does not provide protection from all forms of involuntary association. The compelled disclosure of an employee’s home contact information by an employer to a union is not a violation of that employee’s Charter rights.

There are some aspects of the Court’s analysis in Bernard that are very fact-specific. For example, the Court was interpreting specialized legislation that only applies to the federal public service (i.e. the Public Service Labour Relations Act and the Privacy Act). However, the Court did appear to endorse the decision of the Ontario Labour Relations Board in The Millcroft Inn Limited, the leading case on the issue in Ontario that also confirms the right of a union to obtain information from the employer about employees in the bargaining unit.

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Filed under Collective Bargaining, Duty of Fair Representation, Labour, Privacy

Supreme Court of Canada strikes down Alberta’s privacy legislation

The Supreme Court of Canada recently released an important decision regarding the constitutionality of Alberta’s Personal Information Protection Act (PIPA), the legislation that governs the collection, use and disclosure of information in the private sector in Alberta. The Court’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 involved the balancing of the interests of individuals in controlling their personal information and a union’s freedom of expression.

The dispute occurred during a lawful strike at a casino in West Edmonton Mall in 2006. The strike lasted for approximately 10 months. During that time, both the Union and a security company hired by the employer video-taped and photographed the picketline near the main entrance to the casino. A number of individuals who had been recorded by the Union filed complaints with the Alberta Information and Privacy Commissioner. Their primary complaint was that their personal information (i.e. images of them that were captured when they were in the vicinity of the picketline) was being collected, used and disclosed without their consent contrary to PIPA.

The Court determined that PIPA directly limited the Union’s freedom of expression contrary to section 2(b) of the Charter and could not be justified under section 1. PIPA prohibited the Union from recording the picketline for legitimate, expressive purposes related to labour relations, such as dissuading people from crossing the picketline line and persuading them to support the Union. This infringement on the Union’s right to freedom of expression was out of proportion to the corresponding benefits the legislation sought to promote by providing individuals with control over the personal information that was at issue.

The Court declared PIPA to be invalid but has suspended the declaration of invalidity for a period of 12 months. During that time, the Alberta legislature will have the opportunity to decide how to amend PIPA to make it constitutional. In the meantime, a number of other jurisdictions will need to consider what effect the Court’s decision will have on the constitutionality of their own private-sector privacy legislation. For example, the Federal government, British Columbia, Quebec and, more recently, Manitoba, have all enacted legislation that is similar to PIPA in many important respects and would therefore be vulnerable to a similar constitutional challenge.

While the decision is of course important simply for the result and the potentially wide-ranging effect it will have on privacy legislation across Canada, the Court also made a number of noteworthy comments with respect to privacy law generally. For example:

  • PIPA and similar legislation are part of an “international movement towards giving individuals better control over their personal information” (paragraph 13).
  • Privacy legislation “should be characterized as ‘quasi-constitutional’ because of the fundamental role privacy plays in the preservation of a free and democratic society” (paragraph 19).
  • The objectives of privacy legislation are “increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes” (paragraph 20).
  • “The importance of the protection of privacy in a vibrant democracy cannot be overstated” (paragraph 22).

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Filed under Employment, Labour, Legislative Updates, Privacy

Employer’s computer vs. employee’s privacy rights

Christopher McClelland

The Supreme Court of Canada (SCC) has released its decision in a privacy case that has been winding its way through the courts for more than 4 years. In R. v. Cole, the SCC determined that an employee has a reasonable expectation of privacy in the information contained on their work computers, provided their employer permits some personal use of those devices.

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Filed under Employment, Privacy, Workplace Policies