Ontario Arbitrator Okays Collection of Driver’s License Numbers for Driving Safety Program

On May 11th Arbitrator David McKee held that an employer could collect driver’s license numbers to check the driving records of employees who drive personal vehicles in the course of their duties.

Arbitrator McKee had previously allowed the employer to conduct driving record checks on employees who drive company owned vehicles. In this decision, he holds that it is reasonable to conduct the same check on employees who drive personal vehicles in the course of their duties (and who are reimbursed by the employer for doing so) regardless of the extent to which they actually drive. Arbitrator McKee bases his conclusion on a contextual balancing of interests that stresses the following factors:

• the information at issue (the DL number and information in the driving record) is “not extraordinarily sensitive”
• the employer had taken steps to protect employee privacy in administering the program (i.e., by using an external service provider to conduct the check and only receiving driving record information for a class of “high risk” drivers)
• the employer established a legitimate, albeit general, interest in promoting safe driving and a safety-conscious public image
• the employer did not discipline employees with bad driving records but, rather, used the information to mitigate risk through training and management

Arbitrator McKee’s approach is pragmatic. Citing Justice Whitaker’s recent Jones v. Tsige decision, he says, “There is no legal doctrine that gives a particular weight or priority to everything that can be characterized as a privacy right.”

Union Gas Ltd. v. C.E.P., 2011 CarswellOnt 7295.