Outburst does not justify employer’s direction to attend psychiatric assessment

An award from June 29th of last year was just published in which Arbitrator Michel Picher held that an employer was not justified in directing an employee who had made a concerning outburst to a psychiatric assessment.

The employee was a 26-year mechanic who became frustrated about the theft of his tools. The company alleged he told a manager that he, “was bringing in a knife, and that the next time someone touches anything of his he will cut their hand or head off.” He later said he would pray that the manager and his family would answer to God. The company referred the employee to its OHS physician, who recommended that the employee attend an IME. This led to a lengthy dispute that came before Arbitrator Picher five years later, after the parties agreed the employee would be reinstated; they argued only about the terms of reinstatement, including whether an IME would be a condition of return.

Employers faced with concerning behavior are in a dilemma, and should never be too confident in their own ability to assess an employee’s disposition to commit an act of violence. This case is notable as highlighting the requirement to have a reasonable basis for requiring a psychiatric assessment, but the finding is very qualified. Arbitrator Picher noted that the employee had supported his rejection of the IME direction by submitting medical evidence from his own physician, evidence that the company appeared not to answer in the arbitration. He also noted that the precise statement made by the employee was in dispute, and the employer did not bring the manager to the hearing. Finally, Arbitrator Picher ordered the employee to be reinstated without compensation. In a way, the employer got what it wanted: an independent review of the circumstances prior to reinstatement.

The Canadian Pacific Railway and CAW-Canada, Local 101 (M. Picher, 29 June 2011).

Information about business subsidies received not personal information

On June 15th the Alberta Court of Queen’s Bench affirmed an Alberta OIPC finding that amounts of financial assistance received by livestock farmers under two government programs were not the farmers’ personal information. The OIPC held that even if the information could be linked indirectly to individuals (e.g., owners of sole proprietorships or closely held corporations) there was no proof that it had a “personal dimension” sufficient to qualify. The Court held the OIPC’s order was transparent and detailed, “made sense” and was consistent with the purpose of Alberta FIPPA.

Agriculture Financial Services Corporation v Alberta (Information and Privacy Commissioner), 2012 ABQB 397 (CanLII).

Majority of BCCA says accuracy duty applies broadly

Yesterday the Court of Appeal for British Columbia restored a finding that the British Columbia Ministry of Children and Family Development breached British Columbia FIPPA by failing to make every reasonable effort to ensure the accuracy of personal information before using it to answer a background check inquiry.

This is a very well-litigated dispute about a communication made by the Ministry to a social services employer who contacted the Ministry, with consent, to check into the background of a new employee. The Ministry disclosed the existence of a complaint made against the employee. It also noticed some irregularities in its file, did a full review of the file (without going behind the file to make inquires) and said to the employer, “to be on the safe side, I would prefer that he may be supervised, if you can do this.”

The employee was terminated and has since been on a long campaign to seek redress. In May 2010, the British Columbia Court of Appeal dismissed the employee’s $520 million action against the Ministry and others as disclosing no reasonable cause of action. About a year earlier, the Court of Appeal heard an appeal of the employee’s privacy complaint and sent it back to the B.C. OIPC so the OIPC could consider whether the Ministry breached section 28 of B.C. FIPPA. Section 28 imposes a duty to make every reasonable effort to ensure the accuracy of personal information that is used to make a “decision that directly affects [an] individual.”

In yesterday’s decision, a 2-1 majority of the Court held that the OIPC was reasonable to conclude that the Ministry’s act of issuing a caution to the employer entailed a use of personal information in making a “decision that directly affects [an] individual.” Madam Justice Bennet wrote for the majority. Most significantly, she affirmed the OIPC’s broad reading of “decision” – to encompass formal and informal decisions – as reasonable. Mr. Justice Hinkson did not take issue with this finding in his dissent. He held that Ministry’s highly qualified advice could not even be elevated to the status of an informal decision.

The public sector access and privacy statutes in Nova Scotia, Newfoundland, Prince Edward Island, Alberta and the three territories contain provisions with similar or identical language to section 28.

Hat tip to Eileen Vanderburgh from the ABHL Information + Privacy Law Blog.

British Columbia (Ministry of Children and Family Development) v. Harrison, 2012 BCCA 277.

Life trumps privacy

“Life trumps privacy.”

These are not my words. It’s a line from a 2007 practice tool published by the British Columbia and Ontario privacy commissioners entitled “Emergency Disclosure of Personal Information by Universities, Colleges and other Educational Institutions.” The tool focuses on the disclosure of personal information to prevent safety-related harm, an issue that privacy commissioners are sensitive to because privacy regulation often comes under attack as causing or contributing to a violent incident. Commissioner Cavoukian also wrote an editorial in the Washington Post following the 2007 Virginia Tech shootings and spoke to the CBC’s The Fifth Estate in 2009 after the Nadia Kajouji suicide at Carleton University – both times arguing that privacy legislation does not impede threat management.

This is relevant today because privacy and safety is back in the news. The National Post published an article yesterday about Travis Baumgartner’s Facebook posting. About two weeks before the multiple murder in which he is implicated occurred, Baumgartner posted, ““I wonder if I’d make the six o’clock news if I just starting popping people off.”

Employers do not have a duty to routinely monitor the internet for signs of concerning employee behavior.To assert such a duty is to take an employer’s duty to provide a safe work environment too far. Monitoring would be costly, difficult to do effectively and, as noted in the article, raise privacy issues.

Employers do, however, have a duty to “know what they know” about troubled employees and others who frequent the workplace. There are too many stories about concerning behaviors that were observed by other employees in the workplace and that were not assessed except in hindsight of a catastrophe. Employers must have means by which troubling behaviors exhibited by employees and others are reported and properly assessed. This has become the clear best practice, one that developed out of the landmark 2002 report of the U.S. Secret Service and U.S. Department of Education.

And what if an employee simply reports another employee’s Facebook posting as being of concern? It should be assessed. And once there is a legitimate reason to assess, employers must be thorough and gather relevant information from all available sources, including the Internet. Employers can’t afford to draw artificial lines between behavior inside and outside of the workplace in assessing a legitimate concern.

I’d like to say that privacy laws do not stand in the way of collecting personal information in the course of a threat assessment, but that’s not necessarily the case. Ontario’s provincial public sector privacy legislation, in particular, contains a very restrictive “indirect collection” prohibition. Law enforcement can collect personal information from third-parties without consent in order to assess a threat, but institutions acting in a “civilian” capacity cannot. There are ways to manage the prohibition through policy but, nonetheless, the legislation should be changed. After all, life trumps privacy.

Employer has duty to protect employee’s reputation in circumstances surrounding termination

An employer has a duty to provide a safe and harassment free workplace, but this is different than a duty to protect an employee’s reputation. The assertion of a duty to protect reputation is of great concern to employers given how often employees who are targeted on the internet by “outsiders” turn to their employers for help. On May 29th the Federal Court of Appeal held that an employer breached a duty to protect its employee’s reputation, but also made clear that the duty arose only out of the well-established duty to exercise good faith in terminating employment – the “Wallace duty.” Justice Sharlow explained:

As I understand the adjudicator’s reasons, he did not conclude that PWGSC as Mr. Tipple’s employer had a free-standing duty to protect his reputation. Rather, he found that the law imposed on PWGSC a duty of good faith when terminating Mr. Tipple’s employment. When PWGSC decided to terminate Mr. Tipple’s employment in the midst of press reports impugning his integrity on the basis of information leaked from PWGSC which senior officials of PWGSC knew to be false, the duty of good faith included the duty to take reasonable steps to ensure that the termination did not cause undue and unjustified harm to Mr. Tipple’s reputation. In my view, the adjudicator’s conclusion is well within the scope of the Wallace principle, and is reasonable. I conclude that the judge erred in setting aside the award of $250,000 for loss of reputation.

The facts are worth a close read and detailed analysis, but I’ll simplify here and say that employers who terminate an employee who is embroiled in public controversy without asserting cause for reasons related to the controversy ought to beware of a positive duty to protect the employee’s reputation.

Tipple v. Canada (Attorney General), 2012 FCA 158 (CanLII).

“Meaningful on call duties” mean position has safety-sensitive status

In a March 30th decision, Arbitrator Michel Picher said, “An employee who is trained and remains meaningfully on call to perform safety sensitive functions must be recognized as having safety sensitive status, regardless of the frequency of the functions.” In applying this principle, he held that qualified Diesel Mechanics at a rail yard were in a safety sensitive position even though they only were required to operate locomotives on a very occasional basis – some as little as a few times a year. Arbitrator Picher’s finding means that the mechanics are subject to special medical assessment and drug and alcohol testing requirements.

Canadian Pacific Railway Company and CAW-Canada, Local 101 (30 March 2012, M. Picher).

Master MacLeod gives a boost to role of particulars under new Ontario rules

In a decision issued June 6th, Master MacLeod of the Ontario Superior Court of Justice asked whether particulars should be more readily ordered under the Ontario rules given the relationship between pleading, discovery and expense. He concluded:

All of this is to say that the requirement of particulars for the purpose of pleading should not be construed too narrowly. A request for particulars should be upheld if it appears that it will result in a more focused and intelligent pleading and it should be refused if it simply adds another unnecessary step or delays the progress of the action.

Master MacLeod is on Sedona Canada and clearly cares to encourage efficient litigation. He has demonstrated a unique willingness to take a detailed look at how parties have conducted a step in a proceeding (as opposed the steps taken) and hold them to account: see e.g., L’Abbé v Allen-Vanguard.

Ottawa (City) v. Cole & Associates Architects Inc., 2012 CarswellOnt 7204.

Preclusive PIPEDA judgement must stand until revisited by Court of Appeal for Ontario

On June 6th, the Ontario Superior Court of Justice dismissed a motion by an execution creditor for an order to compel a mortgagee to provide a mortgage discharge statement so it could enforce its judgement by way of a sheriff’s sale.

Justice Gray held that he was bound to apply the Court of Appeal’s 2011 judgement in Citi Cards Canada Inc. v. Pleasance, in which Justice Blair held that such an order is precluded by the federal Personal Information Protection and Electronic Documents Act. Justice Gray confessed to being troubled by the outcome and wrote an invitation to appeal by opining on various theories in which the disclosure of personal information in a discharge statement would comply with the consent rule in PIPEDA. He questioned, for example, whether a mortgagor implicitly consents to the disclosure of information about his or her mortgage to third parties with an interest in the mortgage and whose interest is at stake.

Justice Gray did not question whether federal parliament, by exercise of the trade and commerce power, intended to fetter the jurisdiction of a provincial superior court to make an order that would, in effect, relieve a commercial actor from the consent obligation in PIPEDA. Perhaps he was paying due respect to the higher court, because City Cards suggests that PIPEDA has just such an effect. Maybe the execution creditor will take Justice Gray’s invitation and seek leave to appeal.

Royal Bank v. Trang, 2012 ONSC 3272 (CanLII).

CORRECTION

I’ve gone back to read Citi Cards closely, and should say that it’s not fair to say it fetters the jurisdiction of a provincial superior court. The Court makes two distinct findings, one affirming the application judge’s (unremarkable) finding that PIPEDA precludes disclosure without consent and a second affirming the application judge’s decision, made in the exercise of discretion, to deny an order. On discretion, the Court finds the application judge’s exercise of discretion to be proper in the circumstances, partly because of the debtor’s privacy interest and partly because the debtor’s wife had a 50% interest in the property and had not yet been examined under Rule 60.18(6)(a). In Trang, Justice Gray questions the efficacy of a Rule 60.18(6)(a) examination and rejects an argument that Citi Cards is distinguishable.

Investigator’s use of wife’s e-mail account (???) leads to stay for abuse of process

The use of personal e-mail accounts for work purposes is out of control. A May 23rd judgement of the Court of Appeal of Alberta illustrates.

The Court affirmed a stay a prosecution that an accounting profession tribunal ordered because an investigator used his wife’s e-mail to send and receive correspondence in conducting an investigation. The Court agreed with the tribunal that the respondent did not consent. It said:

In our view, whatever standard of review one applies to the Appeal Tribunal’s review of the Discipline Tribunal’s decision on this point, it is clear that the finding of consent cannot be sustained. While it might be possible to infer that Clark consented to the disclosure of information he sent to Rockwood’s wife’s e-mail address, no such inference can be drawn with respect to the confidential information gathered by the investigator about Clark from the complainant and other third parties. Clark did not know that information about him was being gathered in this fashion, and counsel for CIC conceded that Rockwood’s wife might have seen some of these e-mails.

The Court also held that the tribunal was reasonable to conclude that a stay (though an extreme remedy) was warranted, particularly given the investigation and prosecution at issue was for breaching client confidences: “…the stay was the only way to hold the CIC to the standard of conduct expected of all members of the profession.”

Clark v. Complaints Inquiry Committee, 2012 ABCA 152 (CanLII).

Party can assert a duty to ensure relevant evidence held by another is preserved

On June 7th, the Ontario Superior Court of Justice dismissed a partial summary judgement motion, thereby allowing a defendant to plead that the plaintiff had committed spoliation by failing to obtain a piece of plastic she had ingested after it was surgically removed. The plaintiff argued that the pleading should be struck because there was no claim that she ever had power, possession or control of the piece of plastic (which was lost by the hospital at which she was treated). Justice Quigley held that summary judgement is not a means to strike part of a defence and that the defence pleaded was novel yet “legally tenable.”

Melissa Topp v. Costco Wholesale Canada Ltd., 2012 ONSC 3354 (CanLII).