Alberta arbitrator awards $1,250 per unauthorized credit check

5 Jun

On April 5th Arbitrator Sims awarded $1,250 to each member of a group of 26 government of Alberta employees because the government checked each employee’s credit without authorization or sufficient justification.

An internal investigator conducted the checks to see if any the employees were in financial difficulty, which he thought might indicate a motive to engage the fraud he was investigating. The government admitted a breach and apologized, but its employees’ union grieved to seek damages. Arbitrator Sims heard the grievance based on an agreed statement of facts that stipulated the employees had “suffered emotional stress in their personal lives and in the workplace.”

Arbitrator Sims relied on the Court of Appeal for Ontario’s decision in Jones v. Tsige and the Federal Court’s decision in Nammo v. Trans Union of Canada in crafting a damages award. He said:

Having weighed all these considerations and the facts in this case, I find this is an appropriate case for a modest award of damages for each grievor, which I set at $1,250.00 per grievor. I accept the point from Nammo (supra) that steps taken to correct a breach do not mean no breach occurred. Here, a breach did occur, and one of real significance in terms of the grievors’ privacy rights and their sense of security and well being as employees. Paragraph 12 of the agreed facts confirm damages, although they are intangible in nature. The Assistant Deputy Minister’s reply at Level II of the grievance procedure speaks of “an environment of mistrust” having been created.

The Department’s clear and unrestrained admission of error and its apology goes some considerable distance in rectifying that mistrustful environment and must have, to a significant degree, calmed the employees’ anxieties over the Employer’s attitude towards their right to privacy. I have also taken into account the fact that the Equifax system does not report on such “soft requests”, although they remain within its system. No steps have apparently been taken to have these entries erased, but they could be and, to the extent that involves cost, the Employer has agreed to cover any such expenditure. Considering the facts overall, I find the conduct and the harm in this case to be considerably less egregious and damaging than that in either Nammo (supra) or Jones.

Alberta v. Alberta Union of Provincial Employees (Privacy Rights Grievance), [2012] A.G.A.A. No. 23 (Sims) (QL).

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One Response to “Alberta arbitrator awards $1,250 per unauthorized credit check”

  1. Jeremy Maddock June 8, 2012 at 6:12 am #

    On one hand, it’s good to see see a much-need symbolic vindication of individual privacy rights. On the other hand, I have to wonder how much actual stress and embarrassment were caused to these particular individuals, and whether these “damages” should be coming out of the pockets of taxpayers.

    Those whose privacy was breached should definitely get something, but the focus should be more on deterring the behaviour of this “internal investigator.” $100 to each of the victims, deducted from the investigator’s salary might be a little more meaningful.

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