Arbitrator gives notice to affected individuals after ordering their PI to be produced

2 Oct

On July 14th, Arbitrator Kuttner ordered an employer (and MFIPPA institution) to disclose retiree contact information to a union and to deliver a notice to retirees about his production decision.

MFIPPA does not apply to employment-related records nor, in general, does it give employees and retirees of MFIPPA institutions privacy rights. Arbitrator Kuttner seemed to accept this in finding that MFIPPA did not preclude him from making the requested order, though he also made a finding that the requested disclosure was permissible under MFIPPA as a “consistent purpose.”

More significant is how Arbitrator Kuttner dismissed the employer’s argument that the procedural rights of affected retirees must be respected in determining the production motion. He said:

The situation before me is far removed from that dealt with by the [Court of Appeal for Ontario’s decision] in Re Bradley. There are not here two groups of employees covered by the same collective agreement competing for benefits under its terms, with one group stripped of benefits previously accorded in favour of another group to which they are newly afforded. Rather a bargaining agent, bound to represent fairly before an employer a discrete group of retired employees whose common interests under a collective agreement are in jeopardy, seeks disclosure of their personal contact information held by the employer, so that it can fulfill its representational role. As discussed above, that role is one with common law underpinnings, now rooted in the LRA, and recognized by the parties to the Collective Agreement. Of note in PIPSC v. Canada (Revenue Agency) supra, where employee privacy rights were at issue, is the Supreme Court’s comment that “the usual practice” is not to give affected employees notice of such proceedings, and the same would hold here in the case of retirees.

Arbitrator Kuttner nonetheless considered it “appropriate” to advise the retirees of his production decision and ordered the employer to deliver the letter I’ve attached below.

CUPE, Local 27 and The Greater Essex County District School Board (14 July 2014, Kuttner).

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