On August 12th, British Columbia Arbitrator Heather Laing declared unreasonable a driving safety program that entailed the annual collection of motor vehicle records to identify and address high risk drivers.
Arbitrator Laing held that the program engaged employee privacy rights and that the employer – whose vehicle incident record was actually improving – had not justified its use in light of less intrusive options for maintaining and improving driving safety (such as skills training). She distinguished Ontario Arbitrator David McKee’s recent Union Gas cases as dealing with access to Ontario driver abstracts, which are available to the public without consent.
This case will be upsetting to employers for its suggestion that employers need to prove a safety problem to justify any collection of personal information. Arbitrator Liang finds that the non-public nature of British Columbia motor vehicle records (which include height, weight and 5-year driving record information) is significant, but does not analyze the meaning of the information itself in making a reasoned conclusion about “sensitivity.” There is ample Charter jurisprudence that establishes the driving public sacrifices a great deal of privacy in exchange for the privilege operating a motor vehicle on public roadways that weighs in favour of “non-sensitive” finding. Collection of use of non-sensitive employee personal information for bona fide safety-related purposes should not be unreasonable.
Spectra Energy v. Canadian Pipeline Employees’ Assn. (Motor Vehicle Record Grievance), [2011] C.L.A.D. No. 266 (H. Laing) (QL).
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