Review of IPC exclusion decisions now (officially) subject to reasonableness review

8 Aug

A friend just brought a notable FIPPA judicial review from February 24th to my attention. In it, the Divisional Court affirmed an IPC order to disclose the full names of FRO employees in response to a request for personal information.

The IPC held that the employment-related records exclusion in FIPPA did not apply to certain records containing employee names – records of services provided to the requester. The Court reviewed this on the reasonableness standard, finding that pre-Alberta Teachers case law supporting a review on the correctness standard no longer applies. On the application of the exclusion, the Court rejected an argument that the records of service provided were employment-related in the context:

To qualify for the exclusion, the record must be about labour relations or employment-related matters. The dictionary definition of the word “about” requires that the record do more than have some connection to or some relationship with a labour relations matter. “About” means “on the subject of” or “concerning”: see Concise Oxford English Dictionary, 11th ed., 2004, s.v. “about”. This means that to qualify for the exclusion the subject matter of the record must be a labour relations or employment-related matter.

Adopting the Ministry’s broad interpretation of “about” would mean that a routine operational record or portion of a record connected with the core mandate of a government institution could be excluded from the scope of the Act because such a record could potentially be connected to an employment-related concern, is touched upon in a collective agreement, or could become the subject of a grievance. This interpretation would subvert the principle of openness and public accountability that the Act is designed to foster.

This should be read to be consistent with the Divisional Court’s earlier decision that there need only be “some connection” with excluded subject matter for the exclusion to apply: see Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII). Records that have some connection (i.e. a partial connection) to excluded subject matter are arguably still excluded, but the connection must be real, not speculative and not driven by the context in which a request is made.

The Court also affirmed the IPC’s finding that full name information is not exempt under the “unjustified invasion of personal privacy” exemption.

Question. Why not argue that the information at issue – full names or identifying information – is not “personal information” to which the right of access to personal information applies? The right of access to personal information applies to information and not whole records. In the absence of a special context, the identity of employee/service provider names should not constitute the requester/service recipient’s personal information.

Ministry of Community and Social Services v Doe et al (2014), 120 O.R. (3d) 451.

Arbitrator dismisses complaint that union misused employer’s confidential information

7 Aug

On June 9, Arbitrator Marcotte dismissed an employer grievance that alleged a breach of confidence by its union.

In preparing for a discipline grievance that related to service provided to a client of the employer, a union business agent contacted the client for information. The employer grieved, claiming both a violation of the collective agreement and PIPEDA. The collective agreement did not contain an express confidentiality clause. The employer relied on a number of other collective agreement provisions to support an “implied right” and ground arbitral jurisdiction, including a purpose clause that called for “orderly and harmonious relations.”

Arbitrator Marcotte held that the employer was not alleging the breach of a right granted by the collective agreement. He also held that PIPEDA does not apply.

Recall Canada and Teamsters, Local 938 (9 June 2014, Marcotte).

BCLRB affirms decision denying grievor anonymity

2 Aug

There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.

On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.

Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.

The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.

Look for an appeal on this very principled and important issue.

Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).

BC court strikes privacy breach claim as being within OIPC’s exclusive jurisdiction

31 Jul

On July 14th, the Supreme Court of British Columbia dismissed a privacy breach claim against a public body as being within the exclusive jurisdiction of the Office of the Information and Privacy Commissioner for British Columbia.

The plaintiff sued the ICBC and others for wrongs arising out of the collection and use of his personal information. He framed his action in a number of valid legal bases including breach of contract and breach of confidence. The claim referred to duties under the British Columbia Freedom of Information and Protection of Privacy Act; the plaintiff said these references were simply recitations of  “material facts.”

The Court found that significant parts of the claim (in their essence) addressed subject matter governed exclusively by FIPPA and its complaint resolution process. It said:

In summary, I conclude that FIPA is an exhaustive legislative scheme for the investigation and adjudication (subject to judicial review) of complaints related to the collection, use and disclosure of personal information in this province. Investigations of complaints about how a public body such as ICBC has collected, used or disclosed personal information are prescribed in FIPA. I am unable to find a role for the civil courts in these matters (except for judicial review).

This issue has been litigated in Ontario. For a case in which the Ontario Superior Court of Justice struck a claim based solely on a breach of MFIPPA, see Sampogna v Smithies. For a more recent case in which the Ontario Superior Court of Justice allowed a privacy breach claim to proceed against an health information custodian and others despite an argument that the Ontario Personal Health Information Protection Act covered the field, see Hopkins v Kay. Hopkins has been appealed to the Court of Appeal for Ontario.

Cook v The Insurance Corporation of British Columbia, 2014 BCSC 1289.

Ontario arbitrator upholds discharge for Facebook postings

26 Jul

On May 15th, Arbitrator Trachuk upheld the discharge of a short service crane operator for posting disparaging and sexually explicit comments about a female coworker on his Facebook. The decision is fact specific and not surprising. Arbitrator Trachuk, however, does make the following statement about admissions and apologies (in the context of a social media offence) that is sensible and of note:

The union asserts that the grievor’s apology is another mitigating factor. The grievor did apologize to the company in his first meeting and offered to apologize to X. An admission and an apology are not exactly the same thing. An admission after a person has already been caught is not worth much. The grievor’s offense was visible on his Facebook for many people to see for many hours. Therefore, admitting he had posted the comments was not the act of accountability that it would have been if he had come in and confessed before anyone had complained. However, a person may still be truly sorry after he is caught, although such apologies usually appear to be self-serving. That is why a grievor who wants to persuade an arbitrator about his sincerity will testify. This grievor did not. The grievor’s admission and apology can only be considered minor mitigating factors due to their timing and the grievor’s failure to testify.

United Steel Workers of America, Local 9548 and Tenaris Algoma Tubes Inc. (15 May 2014, Trachuk).

Alberta CA deals with FOI standing issue, settlement privilege and more

19 Jul

The Court of Appeal of Alberta issued a decision on July 16th that dealt with a significant FOI standing issue among other issues relevant to FOI practitioners.

The Court quashed the Alberta OIPC’s appeal of a lower court decision to quash an order by which the OIPC compelled the Minister of the Environment to disclose a remediation agreement it entered into with Imperial Oil. It also, in obiter, affirmed the lower court’s decision.

The Court quashed the appeal based on a finding that the OIPC had no standing. Alberta case law establishes that a statutory tribunal whose own decision has been quashed on judicial review cannot appeal from that order unless its own jurisdiction is in question. The Court applied this to the OIPC despite the OIPC’s arguments about the unique role of an FOI adjudicator.

In addressing whether the remediation agreement was accessible to the public, the Court held that the agreement was subject to settlement privilege and that the OIPC had erred in finding that settlement privilege does not apply to final agreements. The application of settlement privilege to final agreements gives potentially wide protection to agreements between public institutions and outside parties and is now supported by the the Supreme Court of Canada based on its June 2013 decision in Sable Offshore Energy Inc. v Ameron International Corp.

The Court also interpreted a requirement common to third-party harms exemptions in Canadian FOI statutes that demands information “of the third-party” to qualify. It said:

The exception does not necessarily require ownership in the strict sense; the private party supplying the information would not have to prove that it had a patent or copyright on the information. If the private entity took scientific, financial, or commercial information that was in the public realm, and then applied that information to its specific business, property, and affairs, the resulting data would still be “of the third party”. In other words, it is the information as applied to the business of the third party that would be “of the third party”, not the background scientific or economic principles underlining that information.

The Court held that the OIPC erred in finding that expert reports prepared for Imperial Oil and appended to the agreements did not contain information “of Imperial Oil” because the reports “were developed at the request of the Public Body or in consultation with it.”

Imperial Oil Limited v Alberta (Information and Privacy Commissioner), 2014 ABCA 231 (CanLII).

Scope of employer’s forensic examination criticized by PSLRB

15 Jul

There are a some notable points in a June 6th decision of the Public Service Labour Relations Board that upholds the discharge of a federal public servant for forwarding e-mails to his personal e-mail account.

The employer had discharged the employee for sending home restricted-access documents about internal job competitions, including documents related to a competition in which he had participated and documents containing the personal information of 108 other employees. The Board held that the grievor, who was an HR assistant, had engaged in a serious breach of trust and caused the employer embarrassment: “Progressive discipline does not apply to this case since very serious misconduct occurred.”

Although the Board dismissed the grievance with this strong and favorable employer endorsement, it did express a “concern” about the manner in which the employer conducted its forensic investigation into the grievor’s system usage. It said:

The grievor also raised concerns about the lack of concern that the employer showed for his privacy, specifically that it gave no specific instructions to Mr. Roussel about protecting the grievor’s privacy when Mr. Roussel conducted his investigation. I am also concerned about it. Furthermore, in the absence of such instructions, Mr. Roussel included in his report personal information about the grievor that had nothing to do with the purpose of the investigation, which was to inquire into the grievor conducting personal business using the employer’s network. I did not report on it since it was irrelevant to deciding the four grievances in front of me. However, this lack of respect for the grievor’s privacy does not reduce the seriousness of his misconduct. At this point, I can recommend only that in the future, the employer take employees’ privacy under consideration when conducting that type of investigation.

It’s not clear from the decision how exactly the employer erred given the Board’s limited description. In any event, employers should create and administer a protocol that governs non-routine access to system information and non-routine system monitoring – e.g., access for the purpose of conducting audits and investigations.

Gravelle v Deputy Head (Department of Justice), 2014 PSLRB 61 (CanLII).

 

Follow

Get every new post delivered to your Inbox.

Join 1,473 other followers