Month: January 2011

Owner with a site access drug testing policy not a co-employer

On January 11th, the Alberta Court of Appeal issued a significant site access drug testing decision in which it held the owner of a construction site did not co-employ a subcontractor’s employee for the purpose of Alberta human rights legislation.

The employee worked for a subcontractor on a construction site owned by Syncrude. Syncrude required all contractors’ employees to have a drug test as a condition of site access. The employee failed, filed a human rights complaint and succeeded in arguing that Syncrude was a co-employer before a human rights panel. The Panel chair stated, “It would be an organization façade to think that a company could circumvent human rights legislation by inserting a contractor between the company and the workers it requires to build its project.”

The Court of Appeal held that co-employment is possible under the Alberta Human Rights, Citizenship and Multiculturalism Act and articulated factors for assessing whether co-employment exists, but held that the Panel erred in finding Syncrude was a co-employer. It appears that Syncrude’s relationship with its general contractor and the various subcontractors on its site was nothing out of the ordinary. The Court commented:

It is Lockerbie & Hole [the complainant’s “true” employer] that must ensure that Mr. Luka’s rights under the Act are respected, and that any discrimination demonstrated by Mr. Luka is either a bona fide occupational requirement under ss. 7(3), or “reasonable and justifiable in the circumstances” under s. 11. Any duty to accommodate a disability that arises must be met by Lockerbie & Hole. Mr. Luka is not denied rights under the Act, but the burden of protecting them falls on Lockerbie & Hole…

If Mr. Luka worked for one of Lockerbie & Hole’s subcontractors, he presumably would have five employers: the subcontractor, Lockerbie & Hole, Marsulex, Kellogg Brown and Root, and Syncrude. If he was further down the contractual chain, he might have even more employers. This is not a result the Legislature should be taken to have intended by the use of the word “employer”.

This is an important site access drug testing decision. Furthermore, the Court’s reasoning on the meaning of “employer”  and the parameters for co-employment under human rights legislation are of general importance with implications outside of Alberta.

Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (CanLII).

SCOTUS background check case is very… American

Today, the Supreme Court of the United States unanimously decided that elements of a background check administered to contractors working at a NASA laboratory are constitutionally permissible.

The contractors challenged a question that asks whether individuals have “used, possessed, supplied or manufactured illegal drugs” in the last year and a question to those answering “yes” about “treatment or counseling received.” They also objected to the breadth of inquiries routinely made to references, including questions that sought facts potentially related to “honesty or trustworthiness,” “financial integrity,” “abuse of alcohol and/or other drugs,” and “mental or emotional stability.”

Justice Alito wrote the majority opinion. He assumes, without deciding, that a right to “informational privacy” exists under the United States Constitution but holds that, in any event, the background check questions at issue are justifiable on a contextual balancing of interests. He stresses that government, when acting as employer, has a much “freer hand” to deal with individuals, stresses the pervasiveness of similar screening questions in the private sector and stresses that the information collected is well-protected by the federal Privacy Act.

Justice Scalia, with Justice Thomas concurring, wrote a concurring opinion in which he holds there is no constitutional right to “informational privacy.” He mocks the contractors for their failure to rely on a single provision of the Constitution in written argument and criticizes the majority for its “damaging” “never-say-never” position.

Justice Scalia’s display of sharp wit is well worth a read, but as Canadian employment law practitioner, the following statement by Justice Alito is even more remarkable:

Like any employer, the Government is entitled to have its projects staffed by reliable, law-abiding persons who will“‘efficiently and effectively’” discharge their duties. See Engquist, supra, at 598–599. Questions about illegal-drug use are a useful way of figuring out which persons have these characteristics. See, e.g., Breen & Matusitz, An Updated Examination of the Effects of Illegal Drug Use in the Workplace, 19 J. Human Behavior in the Social Environment, 434 (2009) (illicit drug use negatively correlated with workplace productivity).

This shows such different values than currently reflected in our own screening law. In particular, Canadian adjudicators have expressed great discomfort with the suggestion that individuals who casually use illegal drugs outside the workplace will be less efficient, effective or reliable while at work. Justice Alito (and his six esteemed colleagues) draw the link between illegal drug use simpliciter and workplace performance so easily that it makes you wonder whether we are missing something.

NASA v. Nelson, 562 U.S. ____ (2011).

Court of Appeal quashes Ontario IPC order on “correctional records” exemption

Today, the Ontario Court of Appeal held that the IPC erred in finding that an exemption to the right of access to personal information for “correctional records” did not apply to records related to a period of pre-sentence detention. It quashed the IPC’s order and referred the unresolved issues in the matter back to the IPC to be considered afresh by a new adjudicator.

The decision is about an exemption to the right of access to personal information contained in section 49(e) of FIPPA. It reads:

49.  A head may refuse to disclose to the individual to whom the information relates personal information,

(e) that is a correctional record where the disclosure could reasonably be expected to reveal information supplied in confidence

The Court held the IPC’s distinction between pre- and post-sentence custody was “artificial,” “unworkable” and “unreasonable.” First, it suggested that the IPC gave too much weight to the dictionary definition of “correction” and too little weight to meaning derived from the (broad) definition of “correctional services” in the Ministry of Correctional Services Act. Second, it stressed the narrowness of the section 14 “law enforcement” exemption in rejecting an argument that application of section 49(e) to pre-sentence detention records would cause an inexplicable redundancy in the statute. Finally, the Court suggested the IPC’s interpretation was not “workable” in light of the objective context – that is, it held “that at every stage of the [detention] process, be it at the pre-trial custodial stage or the post-sentence supervisory stage, correctional authorities are liable to be exposed to sensitive information about an inmate that has been provided on a confidential basis.”

The legal finding here is narrow, but the Court does endorse a nice statement from Sullivan and Driedger on the use of dictionary definitions in statutory interpretation: “However, while definitions may provide a useful starting point in interpreting a statutory provision, ‘definitions found in dictionaries say very little about the meaning of a word use in a particular context’: R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at p. 27.”

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32.

Redaction preferred to sealing says court

The Federal Court of Appeal issued an illustrative order on January 6th in which it rejected a consent motion to seal documents that included the appellant’s SIN number. Instead, it ordered the respondent to redact and re-file. For some reason the Attorney-General filed the documents with SIN numbers for a second time on appeal after the appellant sought protection of the same information in the lower court hearing.

Grace Singer v. Canada (Attorney General), 2011 FCA 3 (CanLII).

Court of Appeal considers privacy expectation of regulated businesses

In R v. Clothier, 2011 ONCA 27, the Court of Appeal for Ontario held that the “entrapment” defence did not apply to the regulatory offence of a store clerk selling cigarettes to a minor in violation of the Smoke Free Ontario Act.  The minor was a “test shopper” for the local tobacco enforcement agency.  The clerk argued that this was entrapment.  The Court held that entrapment did not apply and that government authorities can use random test shopping to monitor compliance with the Act.  Of interest from a privacy point of view is the Court’s statement that regulated businesses should expect monitoring as a consequence of doing business:

First, these stores operate in a regulated commercial environment, and operating in this regulatory environment comes with consequences.  As Cory J. said in Wholesale Travel, at p. 229: “… those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility.”

Stores selling tobacco and their employees have this responsibility to the public.  One important consequence of this responsibility is their deemed acceptance of an undertaking to exercise reasonable care to ensure that the harm identified in the regulatory statute – here selling tobacco to minors – does not occur.  This entails a further
consequence.

Those who sell tobacco products must accept a greatly diminished expectation of privacy, as some form of monitoring will be necessary to ensure that they meet their due diligence responsibilities. The monitoring is done, not to punish past conduct, as would be the case for an offence under the criminal law, but to deter harmful conduct in the future – in other words, to prevent harm to the public from the illegal sale of tobacco to
minors.

… We recognize entrapment as a defence in criminal law because of our concern that random virtue testing will result in too great an invasion of personal privacy. That rationale simply does not apply in this regulatory context.

This is an interesting analysis in that it refers both to a diminished “expectation” of privacy and a diminished concern with the “invasion” of privacy in a particular context.

Arbitrator gives employers a “nugget” for justifying in-plant surveillance

Saskatchewan Labour Arbitrator William Hood made the following comment in dismissing a grievance that challenged the installation of video cameras in a distribution centre that supplies product to hospitals and pharmacies:

The Employer’s implementation of a video surveillance system passes the reasonableness tests both in terms of need and manner of use. To suggest there first must be a breach of the security of the premises before one can justify the use of video cameras for security purposes makes no sense to me in the circumstances. Why would management wait until someone stole the gold to install video surveillance at the Royal Canadian Mint?

This is a nice statement for employers, though the award was carried on a number of good facts.

Re Saskatchewan Joint Board, Retail, Wholesale and Department Store Union and McKesson Canada Corp. (Privacy Grievance), [2010] S.L.A.A. No. 26 (Hood) (QL).

What happens when institutions withhold records in which they claim solicitor-client privilege from an FOI adjudicator?

The Information and Privacy Commissioner/Ontario issued a university-sector FOI order late last year that dealt with a solicitor-client privilege claim. The outcome turns on the facts, but the order is nonetheless notable because it contains a narrative of how the IPC dealt with the University’s decision to only provide an index of records and supporting affidavit based on its solicitor-client privilege claim. Though not very clear in the order, it appears the IPC asked for a supplemental affidavit (to deal with exclusion claims also made to the withheld records), which led to an agreement to allow the IPC adjudicator to attend at the University to examine the records.

For another window into the process by which the IPC deals with institutions who elect not provide records to review, see this Divisional Court decision from last March.

York University (Re), 2010 CanLII 77658 (ON I.P.C.).

Judge distinguishes between true whistleblowers and partisan pretenders in ordering disclosure of confidential source

We’ve published here before about former Minister of Parliament Blair Wilson’s defamation lawsuit, part of which rests on an allegation that former British Columbia politician Judi Tyabji distributed an anonymous and defamatory letter.

On December 31st, Mr. Justice Williamson of the British Columbia Supreme Court ordered Elaine O’Connor, a reporter to whom the letter was provided under a condition of confidence, to disclose her source. His decision turns heavily on the characterization of the relationship between the confidential source alleged to be Tyabji and O’Connor. His Honour says:

I am satisfied that if the source is an arm’s length person disclosing information to a member of the media out a sense of civic responsibility grounded in a desire to foster accountability and responsibility in Members of Parliament, the public interest in protecting the identity of such a source outweighs the public interest in ensuring the proper administration of justice. But I also am satisfied that if the source is a participant in a scheme to favour the interests of one side in an acrimonious family dispute, or is a participant in a politically motivated scheme to defame and discredit an elected politician, then the public interest in fostering the proper administration of justice outweighs the public interest in protecting a journalist’s anonymous source.

Mr. Justice Williamson said that he was unable to find which of the two categories into which the anonymous source alleged to be Tyabji fell, and therefore held that O’Connor had failed to meet her burden of establishing the privilege she claimed.

This puts journalists in a particular dilemma given the evidence available to prove a source’s motive will always be limited if anonymity is to be maintained. The Globe and others report that the decision will be appealed. It seems like one that may have some legs.

Lougheed v. Wilson, 2010 BCSC 1871.

Banks prohibited by PIPEDA from disclosing mortgage discharge statement

In an interesting decision released today, the Ontario Court of Appeal held in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3, that PIPEDA prohibits banks from disclosing mortgage discharge statements to a third party.

Citi had a credit card debt against Pleasance and sought to enforce judgment through a sheriff’s sale of Pleasance’s home.  But the sheriff would not act without mortgage discharge statements, which the banks refused to provide on the basis that disclosure would be in breach of privacy rights under PIPEDA.  The Court called this a “knotty and interesting question”, but upheld the lower court decision prohibiting disclosure.  The Court held that mortgage discharge statements contain “personal information” which is not publicly available, that Citi’s interests (as a third party) are not factored in the balancing of interests under PIPEDA, and that Citi could have pursued alternate remedies through a judgment debtor exam or order in aid of execution.

A link to the decision is here.