Case Report – Arbitrator says vehicle telematics data is not personal information

22 Sep

On August 30, Arbitrator Steeves of British Columbia dismissed a privacy grievance that challenged the implementation of a fleet telematics program. The decision is significant because Arbitrator Steeves dismissed the grievance before balancing interests, based on a finding that the telematics data collected by the employer was not personal information in the context. He explained:

It is true that the data contains information about the stop times of a vehicle and this may also be information about the activities of the driver/employee. However, I agree with the analysis in Nav Canada, supra, that this type of information does not engage the right to privacy of individual employees. It is also true that the Telematics data may lead to decisions by the Employer to discipline employees. There are two responses to this concern. First of all, the data does not provide a complete or reliable picture of the activities of an individual and other information would be required to sustain just cause for discipline (actual cases of discipline will have to be judged on their individual circumstances).

Second, to paraphrase Nav Canada, the possible use of the data to evaluate the performance of employees does not transform the information into personal information under PIPA. The information may have the effect of permitting or leading to the identification of a person and it may assist in a determination as to how he or she has performed his or her task in a given situation. “But the information does not thereby qualify as personal information. It is not about an individual, considering that it does not match the concept of “privacy” and the values that concept is meant to protect. It is non-personal information transmitted by an individual in job-related circumstances” (Nav Canada, supra, paragraph 54, emphasis in original). I note in Nav Canada that the information related to recorded communications of employees and there was no real dispute that the information was about the employees. Therefore, it was more directly applicable to issues of discipline than the information in this case which primarily relates to the operation of company vehicles.

In summary, I am not persuaded that the collection and use of an employee’s name, by itself, is collection and use of information that is “fundamental” to the “dignity and integrity” of the employee (Dyment, supra). Put another way, in the circumstances of this case, the collection of information about the operation of a company vehicle, that also includes the name of the driver of the vehicle, does not transform that data into “personal information” under PIPA. I conclude that the data from the Telematics devices can be considered in the same way as the information obtained from the tachograph in Dominion Dairies, supra. The Employer in this arbitration is entitled to know what its employees are doing when they are working and when they are using company vehicles. This information assists management by providing reliable and objective information to improve the efficiency of the vehicle fleet. The same information is not “about” an individual employee and it may be used as part of Employer investigations of disciplinable offences without violating the privacy of employees. As stated in Nav Canada, supra, information that is transmitted by an individual in job-related circumstances is not information about that individual.

Whether information is “about an individual” is a very contextual question. In this case, the outcome was driven by the nature of the data collected (which could only support general inferences about individuals), the employer’s restriction on personal vehicle use and a conclusion that the employer’s primary purpose for collecting the data related to vehicles and not to individuals. Though the case is therefore fact driven, Arbitrator Steeves’ analysis is strong and adds nicely to the arbitral privacy jurisprudence.

Otis Canada v. International Union of Elevator Constructors, Local 1 (Telematics Device Grievance), [2010] B.C.C.A.A.A. No. 121 (Steeves) (QL).

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