Arbitrator Deals With Privacy as Between a Union and its Members

On May 6th, Arbitrator Michel Picher dismissed a grievance in which a union claimed a right of access to a witness statement given by a member who had declined union representation in being interviewed.

The decision turns on the specific language of the collective agreement at issue, though each party made principled arguments – the union claiming a broad right of access based on its representational role and the employer arguing that the proposed disclosure of personal information was prohibited by PIPEDA.

Arbitrator Picher gave some credence to the employer’s argument by suggesting that consent to disclose personal information must be judged in the circumstances. He also rejected the union’s argument, stating that a union’s role as certified bargaining agent does not give it an “inherent right” to information about members that is generated in the course of their employment.

Canadian Pacific Railway Company v. International Brotherhood of Electrical Workers, 2011 CanLII 24835 (ON L.A.)

Arbitrator Agrees to Hear Surveillance Evidence Notwithstanding Policy-Based Preclusion of Employee Monitoring

Arbitrator Robert Herman issued a notable surveillance decision on April 5th. He held that a school board policy that that stated, “Video surveillance shall not be used for monitoring staff performance” did not preclude the hearing of video surveillance evidence in a discharge arbitration.

The Information and Privacy Commissioner/Ontario has a guideline entitled “Guidelines for Using Video Surveillance Cameras in Schools” that Ontario school boards know well. The guideline states, “Video surveillance should not be used for monitoring staff performance.” Many school boards have adopted this statement in their policies without qualification, leaving a question about the use of surveillance footage as evidence of misconduct.

Arbitrator Herman dealt with this issue, and dismissed a union objection that rested on a board’s adoption of the IPC language. He said:

As to the impact of the Information and Privacy Commissioner’s Guidelines, there does not appear to be any authority for the proposition that school boards are required by law to follow the Guidelines. As noted above, at page 1 the Guidelines state that “These Guidelines were created to assist school boards intending to use or expand existing video surveillance to introduce these programs in a manner that ensures stringent privacy controls. The IPC recommends that all school boards using video surveillance implement formal policies governing their use.” These are “guidelines”, recommendations for policies to be adopted by school boards. And as “guidelines”, absent statutory or regulatory requirement that they be applied and followed by the Board, the Guidelines are not binding upon the Board. Further, as the Guidelines do not refer to sections 51 and 52 of the Act, it is not easy to discern from them what the Commissioner’s position is or would be on the use of videotape evidence in an arbitration, the matter in issue here.

The issue then is whether the Board Policy precludes the use of videotapes in this proceeding. The Policy states that “Video surveillance shall not be used for monitoring staff performance.” The videotapes were not surreptitiously made, and the grievor and other employees were aware that the areas in which they worked were being filmed. The word “monitoring” suggests a viewing, checking or surveillance over a period of time, so that “monitoring” staff performance involves viewing employees’ performance over a period of time to determine how they are performing. Monitoring would occur, for example, if the Board were to regularly or periodically review the videotapes as a method of checking the work performance of employees. The Policy does not permit this use of the videotapes. However, the Board did not review the videotapes of the grievor at work as part of a general review of the videotapes to see how any other caretakers or the grievor were performing their work.

Rather, the Board reviewed the videotapes for a particular period of time after it had received a complaint about the grievor’s performance related to that period and then investigated that complaint. Before it reviewed any videotapes, the Board uncovered evidence of non-performance, and after interviewing her and inspecting her log books and other written records, it believed that the grievor was not being truthful about her behaviour and performance, both reasonable conclusions for the Board to have reached based upon the evidence it had by then discovered. Only at that point did the Board review videotapes of the grievor at work, and it did so for days within the period subject of allegations by the other caretakers. The videotape of February 3, 2010 was first reviewed, and then other dates to determine if the grievor had been lying about cleaning her assigned rooms. Those videotapes were not reviewed as part of a pre-existing monitoring process, but as a search for evidence with respect to particular allegations against the grievor, allegations the grievor denied and that the Board on reasonable grounds believed to be true. In these circumstances, the review of the videotapes did not constitute part of a “monitoring” of staff performance, and seeking to introduce then into evidence does not constitute or sanction a breach of the Policy.

This illustrates an important point, especially given a number of decision-makers have suggested that policy-based restrictions on employment-related “secondary uses” of information are a prerequisite to implementing systems that rely on the collection of personal information. Restrictions on “routine” use for performance management purposes will often be acceptable to employers, but restricting access to evidence of wrongdoing is problematic. It is best that policy language go beyond the IPC language and make this distinction clear.

Toronto Catholic District School Boards v. Canadian Union of Public Employees, Local 1280 (Colella), [2011] O.L.A.A. NO. 180 (Herman) (QL).

Extension of Publication Ban Denied in Facebook Bullying Case

On Monday, the Nova Scotia Court of Appeal issued a procedural judgement in the A.B. v. Bragg Communications Inc. matter that may affect its path to the Supreme Court of Canada.

The matter is about a whether a 15-year-old girl who has taken issue with an individual who created a fake and allegedly defamatory Facebook profile in her name can sue anonymously. On March 4th, the Nova Scotia Court of Appeal denied her this right but continued the in-place publication ban to preserve the girl’s right of appeal. The ban was set to lapse at the end of yesterday, May 3rd.

In Monday’s judgement Justice Beveridge held that he had no jurisdiction to extend the publication ban because an application for leave had not yet been filed and he had no basis for finding that a miscarriage of justice would result from failing to grant the requested order. The girl argued that the potential appeal would be moot without the requested relief, but Justice Beveridge was doubtful, without evidence, that her identity would become known.

The media has now covered Monday’s ruling, apparently without naming the girl. I assume her identity is known amongst reporters who have covered this story, and speculate they are declining to publish it based on ethical considerations. If so, they should be applauded. The matter should be resolved on a less technical basis than represented by this latest judgement.

A.B. v. Bragg Communications Inc., 2011 NSCA 38 (CanLII).

Internal Investigations and Employee Privacy

I presented today at the Association of Certified Forensic Examiners annual fraud conference. My topic was managing privacy issues in internal investigations. My aim was to provide some content to help investigators build a better dialog with internal legal counsel and privacy officers about investigation tactics that touch on privacy issues. This was the first time I’ve done this presentation, and it seemed to go well.

I also tagged on a brief section on “the investigation record” out of interest. As part of this section I surveyed the audience and was interested to see that about half of attendees conduct witness interviews with an audio recording device, something I have recently guided clients away from because of its potential impact on witness candor. One audience member, a former police officer, said that witnesses forget about the recording device after about two minutes. Interesting and notable.

My slides are below.

Court says implied undertaking applies to Stinchcombe disclosure

On March 15th the British Columbia Supreme Court issued a significant decision on the implied undertaking. It held:

that Crown disclosure in criminal cases is subject to an implied undertaking not to use the disclosure for a collateral purpose;
that the undertaking is not spent when disclosure materials are filed in interim applications (though is spent in respect of materials admitted as evidence at trial); and
that a court has inherent jurisdiction to enforce the undertaking by ordering materials to be returned to the Crown.

The Court ordered the respondents and their defence counsel to return documents to the Crown given the large volume of documents disclosed, the high profile nature of the criminal case, the number of third party interests implicated by the disclosure and the degree to which third party interests were affected and the failure of the Crown and respondents to agree on a means of adequately protecting the undertaking.

R. v. Basi, 2011 BCSC 314 (CanLII).

Federal Court Dismisses PIPEDA Access Application as Resolved

On April 12th the Federal Court dismissed a PIPEDA application, for the most part, because the applicant had been provided her personal information in the course of an Office of the Privacy Commissioner of Canada complaint investigation.

The applicant complained when she only received copies of records in her personnel file in response to an “all personal information” access request. The respondent provided the applicant with additional records in the course of the OPC investigation. The OPC was satisfied, and held the complaint to be well-founded and resolved, and made some recommendation about process that the respondent followed.

The Court held (based on three search affidavits) that the respondent had provided the applicant with all her personal information. It also held that the respondent was at fault for not providing the applicant with all of her personal information in a timely manner, but did not allow the application based on this finding. The basis for this disposition is not clear, but the Court did dismiss a number of remedies the applicant requested as unjustified and beyond its jurisdiction. Its reasoning also suggests that it viewed the applicant’s timeliness allegations as too trivial to be of consequence.

Though the Court dismissed the application, it did not award costs to the respondent because it had attempted to achieve exoneration in the application – an approach the Court said amounted to an unsuccessful cross-application. The applicant was self-represented.

Kollar v. Rogers Communications Inc., 2011 FC 452.

SCC Comments on Requirements for an Anton Piller

The Supreme Court of Canada issued a decision yesterday in which it affirmed an Anton Piller order issued in support of the province of British Columbia’s action for recovery of monies from Ripudaman Singh Malik and family.

The judgement is about the admissibility of prior judgements as evidence in a subsequent interlocutory proceedings. Justice Binnie, for the Court, held that prior judgements are generally admissible as evidence as proof of their findings provided the parties are the same or were themselves participants in the prior proceedings on similar or related (as opposed to identical) issues.

The Supreme Court of Canada decision in Celanese remains the leading case on the requirements for an Anton Piller order, though Justice Binnie did comment on requirement that there be a “real possibility” that the defendant may destroy evidence. He said:

It will often be difficult or perhaps impossible for a plaintiff to show that a defendant will actually destroy evidence, but it is always open to the court to draw inferences reasonably compelled by the surrounding circumstances. As Paperny J. (as she then was) observed in Capitanescu v. Universal Weld Overlays Inc. (1996), 46 Alta. L.R. (3d) 203:

Generally, courts have inferred a risk of destruction when it is shown that the defendant has been acting dishonestly, for example where matter has been acquired in suspicious circumstances, or where the defendant has knowingly violated the applicant’s rights. [para. 22]

This passage was cited with approval by the Alberta Court of Appeal in Catalyst Partners Inc. v. Meridian Packaging Ltd., 2007 ABCA 201, 76 Alta. L.R. (4th) 264, at para. 13.

Justice Binnie held that the motions judge did not err in finding a “real possibility” from evidence that Mr. Malik had previously refused to provide proper disclosure of financial information.

British Columbia (Attorney General) v. Malik, 2011 SCC 18.

Sunset Clause Doesn’t Demand Physical Removal of Disciplinary Notes From File

On December 3, 2010, Arbitrator Goodfellow held that the following collective agreement language does not require the physical removal of expired disciplinary documentation from an employee personnel file:

ARTICLE 8 – ACCESS TO FILES

8.01 – Access to Personnel File

Each employee shall have reasonable access to his/her personnel file for the purpose of reviewing any evaluations or formal disciplinary notations contained therein, in the presence of the Director of Labour Relations & Human Resources or designate. An employee has the right to request copies of any evaluations in this file.

8.02 – Cleaning of Record

Any letter of reprimand, suspension or any other sanction will be removed from the record of an employee eighteen (18) months following the receipt of such letter, suspension or other sanction provided that such employee’s record has been discipline free for one year. All leaves of absence in excess of ten (10) calendar days will not count toward either of the above periods.

Arbitrator Goodfellow appears to rely most strongly on the apparent distinction drawn in the above language between a “record” and a “personnel file.” More broadly, he says, “any such physical ‘removal’ would be secondary to the primary purpose of any sunset clause, which, in our view, is to preclude Employer reliance on stale discipline, except in the kind of limited circumstance(s) to which the Union refers [e.g., to rebut an affirmative statement made by an employee about having a clean record] .”

Carillion Services v. Canadian Union of Public Employees, Local 942, 2011 CanLII 10605 (ON L.A.).

NBCA Takes Issue With Breadth and Basis for Non-Party Order, Questions Appropriateness of Non-Party’s Cooperation

On March 31st, the New Brunswick Court of Appeal issued a judgement in which it quashed an order requiring the RCMP to produce two investigation files. In doing so, made some significant comments about privacy protection and non-party production orders.

The plaintiff’s home burnt down. The RCMP investigated and did not lay charges. A month earlier, it had investigated a break and enter at the home.

The insurer denied the plaintiff’s insurance claim and defended her action on the basis of a policy exclusion that it alleged applied because the plaintiff left the house vacant for more than 30 days. It sought an order for production of the two entire RCMP investigation files, expressly including personal information protected by the federal Privacy Act. The insurer argued (without any supporting evidence to support an inference) that the files would likely contain information related to the vacancy issue. The RCMP consented and, remarkably, the Attorney-General drafted the terms of the order and wrote the court requesting that the insurer’s production motion be allowed.

The Court of Appeal quashed the order on a narrow point of law. It held that the RCMP is not a “person” that can be subject to a non-party order for production under the New Brunswick Rules of Court. Chief Justice Drapeau went on, however, to comment that the order was overbroad and granted without a proper basis. In doing so, he said:

the New Brunswick rules contemplate that non-party orders target specific materials because such orders are not meant to invite discovery
that non-party consent (though “significant”) does not relieve the requesting party from establishing the requirements for a non-party order

The Chief Justice also questioned whether the RCMP’s actions were proper though, given the Attorney-General was not before the Court, made clear that the Court was not passing judgement on “whether their involvement is faithful to the spirit, if not the letter, of the Privacy Act, including its stated purpose (s. 2) and its prohibition, except in defined circumstances, against disclosure of an individual’s personal information without his or her consent.”

Bennett v. State Farm Fire and Casualty, 2011 NBCA 27 (CanLII).

BCCA Ruling Suggests that Duty to Preserve is not Based on Size of Potential Claim

On February 4th, the British Columbia Court of Appeal affirmed a ruling that a gaming company had no duty to preserve betting slips redeemed by an individual to whom it denied a prize claim for over $6.5 million.

The plaintiff claimed he submitted 20 to 25 betting slips into the gaming company’s redemption machine, and that the machine retained five to 10 tickets as winning slips. The machine then produced a voucher for $6.5 million, which the gaming company would not pay based on a claim that the voucher was produced in error. It based this conclusion on an examination of a winning slip that was stamped by the machine as associated with a $6.5 million win but that did not reveal a winning wager at all. At the time it denied a payout, the gaming company also denied the plaintiff’s request to see his other slips that were retained by the machine. The gaming company destroyed these slips in the ordinary course of its business a week or two later, well before the plaintiff threatened or commenced an action.

Last March, Justice Fisher of the British Columbia Supreme Court held that the gaming company had no duty to preserve when it destroyed the records. She said:

While perhaps it may have been prudent for the defendants to have contacted Mr. Patzer before the betting slips were destroyed, I cannot accede to Mr. Laxton’s submission that they had a positive duty to do so. I appreciate that the error of issuing a cash voucher for such a large amount of money is significant. I accept that Mr. Patzer asked to see his betting slips on November 6, 2004 but he did not follow up this request further. More importantly, if Mr. Patzer was not satisfied with the explanation he had been given, he should have advised the defendants. They would then have been at least put on notice that the matter had not been put to rest.

…

Here, the slips were destroyed in the ordinary course of business before the defendants were aware that Mr. Patzer was considering litigation or even challenging their explanation for the error. While it is unfortunate that they were destroyed so soon after the event, the defendants did not intentionally destroy the winning betting slips in an effort to suppress the truth. Accordingly, there is no basis to apply the doctrine of spoliation.

As there is no common law duty to preserve property which may possibly be required for evidentiary purposes and given these findings, the plaintiff’s claim based on the defendants’ destruction of the betting slips must fail.

The Court of Appeal affirmed this ruling. It stressed that the gaming company had provided the plaintiff with an immediate denial and explanation and that the plaintiff, despite attending one day later with legal counsel, did not provide the company formal notice of his intention to claim before he sued two years later.

Patzer v. Hastings Entertainment Inc., 2011 BCCA 60 (CanLII).