Here’s a slide deck from a presentation I delivered today at the CAUS 2014 conference, with some new content I developed on “student expression, policy and law.”
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.
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.
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.
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.”