Case Report – FCA quashes order for failure to consider privacy interest of non-party

On February 8th, the Federal Court of Appeal quashed an order by the Public Service Staff Relations Board because it accepted a consent order between a union and several employers that required the employers to disclose employee home addresses and telephone numbers to the union.

The Board held that the employers breached the Public Service Labour Relations Act by failing to provide the union with “some” contact information to facilitate its representational role. It reserved judgment on remedy, raised the issue of employee privacy to the parties and encouraged them to seek agreement on a remedy. The parties later came back before the Board and it endorsed their agreement in a consent order without reasons. The applicant, a one-time advocate against the kind of disclosure agreed to, was not given notice of the hearing. When she learned of the order, she commenced an application for judicial review.

The Court held that the Board erred in law by simply endorsing the consent order and failing to exercise its jurisdiction. The Court explained that this rarely-challenged practice can be fatal when there are non-parties whose privacy interests are affected by an agreement:

The Board was seized of the questions which it had raised because those questions went beyond the interests of the employers and the union and engaged the interests of persons who were not before it. Those persons had statutorily protected privacy rights of which the Board was well aware. The Board had an obligation to consider those rights and to justify interfering with those rights to the extent that it did. It could not abdicate that responsibility by simply incorporating the parties’ agreement into an order.

The Court ordered the matter to be remitted to the Board, ordered it to give notice to the Office of the Privacy Commissioner and suggested that the applicant also be given notice and standing.

For a very different take on non-party privacy and standing, see this decision of the British Columbia Court of Appeal.

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII).

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII)

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