Category: Uncategorized

Case Report – Order to attend assessment following employee’s aggressive outburst not discriminatory

Yesterday, the Court of Appeal for the Yukon Territory affirmed a decision of a Yukon Human Rights Board of Adjudication. The Board had held that an employer did not discriminate against an employee with a bipolar condition by suspending him pending a medical assessment. It held that the employer ordered the assessment based on an observation of objectively concerning behavior rather than on any stereotypical assumptions about the employee’s disability:

Whether Mr. March’s conduct was disruptive and inappropriate or not was a question of fact. The evidentiary facts were largely undisputed and the primary task of the Board was to resolve the conflicting interpretations and decide whether Mr. March’s conduct was disruptive and inappropriate. The issue involved an individualized assessment of particular facts. The Board heard the evidence and concluded that Mr. March’s conduct was disruptive and inappropriate and the respondents acted reasonably in the circumstances in removing him from the workplace pending a medical assessment. The action taken was temporary and responsive to the disruptive conduct and not an arbitrary reaction attributable to a discriminatory stereotyping of his disability. Instead, it was directed to ascertaining the cause of his conduct, and deciding how it should be addressed.

Though employers do have a general right to request medical information in circumstances similar to those demonstrated in this case, the employer here had accommodated the employee for years and further helped its case by making a genuine expression of continued support for the employee at the same time as making its direction.

March v. Yukon (Human Rights Board of Adjudication), 2010 YKCA 3.

Case Report – Court addresses rule on redacting information from relevant documents

On March 8th, the Ontario Superior Court of Justice issued an endorsement that outlined the rule on when relevant information may be redacted from producible records. It said, “The whole of a relevant document must be produced except to the extent it contains information that would cause significant harm to the producing party or would infringe public interests deserving of protection.” And also, “Irrelevance alone is not a sufficient ground on which to redact portions of a document. The party seeking to do so bears the onus of establishing that redaction is necessary to protect an important interest.”

McGee v. London Life Insurance Company Limited, 2010 ONSC 1408 (CanLII).

Ontario workplace violence bill and threat assessment take two – the domestic violence provision

I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.

Come June 15th, section 32.0.4 of the OHSA will read:

If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This has people asking, “What is domestic violence?”

The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.

This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:

If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.

This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.

Ontario workplace violence bill demands good behavioral threat assessment processes

Many questions have been raised about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers. My take on the provision is that the actual disclosure duty is fairly narrow, and that the provision is most significant because it requires good behavioral threat assessment processes. I’ve laid out my reasoning below.

The section everyone’s talking about is section 32.05(3). It reads as follows:

(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

(a) the worker can be expected to encounter that person in the course of his or her work; and

(b) the risk of workplace violence is likely to expose the worker to physical injury.

The first question asked about this provision is, “How do we know if a person has a history of violence?” The language of the provision is strict: it does not say “known history of violence.” Does this mean that employers must be omniscient? No.

Health and safety legislation is typically drafted in onerous language to encourage behavior that maximizes protection for workers. Though claims by employers of over-breadth and vagueness about such language are typically unsuccessful, even by promulgating meaningless language that seems to set an absurdly high standard of conduct (such as omniscience), the government cannot preclude a due diligence defence. So the government can encourage employers to act upon knowledge of an individual’s history of violence (as it has done), but can’t sustain a charge based on a failure to be omniscient if it is reasonable to protect a worker by knowing less about another individual’s history.

What is reasonable then? This is certainly a point that will be litigated, but there is a wealth of available literature on threat assessment to give employers guidance today. If I can simplify, this literature requires organizations to (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time.

What about human rights and privacy concerns? Regarding human rights concerns, threat assessment is not about “profiling” an individual based on a stereotype but, rather, is about gathering facts about behavior to understand a potential threat. Performed properly, it should be defensible. Regarding privacy, threat assessment requires access to information about threats. Employers may have a duty to gather information in the course of conducting an assessment, but the more fundamental duty is to “know what you know” by having a system in place for reporting and recording concerning behavior in the workplace, including all violent acts. This conception – know what you know and conduct threat inquires as necessary – seems to strike a fair balance between workplace health and safety and personal privacy.

For those of you interested in reading more about threat assessment, there are some leading resources at the United States Secret Service National Threat Assessment Center. The complete text of Bill 168 is here.

Case Report – Alberta OIPC says no to credit checks as part of retail security program

On February 16th, the Alberta OIPC held that a retailer’s practice of conducting credit checks in the process of hiring sales associates violated the Alberta PIPA.

The retailer used the checks as part of a comprehensive retail security program. It argued they were justified based on two purposes:

  1. To assess how applicants will handle financial responsibilities and tasks associated with their employment duties
  2. To assess whether applicants have a probable risk of in-store theft or fraud

The OPIC held that these purposes did not justify the collection of credit related information. The OPIC’s reasoning is as broad or broader than its reasoning in a 2005 credit check case in which it reached the same conclusion. This suggests that Alberta’s private sector employers will need special circumstances to conduct credit checks on prospective employees.

Hat tip to David Fraser.

Investigation Report P2010-IR-001

Case Report – Newfoundland FOI judgement on “advice and recomendations” exemption

On February 12th, the Newfoundland and Labrador Supreme Court – Trial Division issued an FOI judgement. It is largely fact-specific, but the Court made this comment on the advice and recommendations exemption in the Newfoundland Access to Information and Protection of Privacy Act:

The words “advice” and “recommendations” have similar but distinct meanings. The term “recommendations” relates to a suggested course of action. “Advice” relates to an expression of opinion on policy-related matters such as when a public official identifies a matter for decision and sets out the options, without reaching a conclusion as to how the matter should be decided or which of the options should be selected.

The Court also held that the statutory privilege in section 55 of the Act protects records from production.

McBreairty v. College of the North Atlantic, 2010 NLTD 28 (CanLII).

Case Report – Arbitrator affirms background check program based on soft C-TPAT requirement

On January 20th, Arbitrator Watters held that a criminal background check program initiated in response to the United States Customs-Trade Partnership Against Terrorism program was reasonable.

The key features of the company’s background check program: (1) it applied to new employees and current employees transferring into positions deemed to be sensitive based on C-TPAT requirements; (2) it excluded employees who were checked by the company pre-hire and employees employed by the company for more than five years; (3) the company assessed the results of checks on a case-by-case basis; and (4) the company undertook not to rely on information received about provincial offences convictions and pardoned criminal offences in excluding an employee from an opportunity to work in a sensitive position.

The company wanted to ensure that its “Tier 3” C-TPAT status would not be jeopardized because this status is associated with fast track movement of goods into the United States. Yet the grievance posed a challenge for the company because the C-TPAT criminal background check requirement is flexible, in that it is subject to restrictions in local laws. Moreover, U.S. Customs and Border Services provided a very qualified opinion to the company that only suggested that failing to conduct conduct background checks “might affect” its top tier status. The company was also not certain how being degraded to Tier 2 status would affect its ability to move goods in to the United States. It could only argue that it did not want to find out.

Despite these challenges, Arbitrator Watters held that the company’s background check program was reasonable. He said:

Once the Employer elected to enter the program, I think it reasonable for the company to want to achieve, and then maintain. Tier 3 status through the adoption of the best practices identified by C-TPAT. While it is difficult to precisely gauge own CBP would respond to a change to Tier 2 status. I am inclined to accept the Employer’s view that a reduction in Tier status, as a consequence of a decision not to require criminal background checks for employees in sensitives roles, would likely result in increased screening of the company’s product and resulting delay in the shipment process. I was given no reason to reject Mr. Dunn’s evidence that delay at the ports of entry into the United States could result in the loss of market share as consumers move to the available product of some other competitor. I further not his testimony that delay could compromise product quality in respect of certain brands with a finite shelf-life.

Arbitrator Watters appears to have been influenced by the company’s willingness to take steps to ameliorate the impact of its program. At the hearing, the company expressed willingness to take additional ameliorative steps that were not embodied in its existing policy. Arbitrator Watters ordered the company to implement these steps.

Unfortunately, the parties appear to have argued the case as if Ontario provincial public sector privacy legislation applied to the company. Though a common misunderstanding, provincially regulated employees in Ontario (whether public or private sector) are not protected by  privacy legislation.

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 2098 v. Diageo Canada Inc. (Amherstburg Plant), [2010] O.L.A.A. No. 21 (Wattters) (QL).

Information Roundup – 21 February 2010

Here are some recent tweets of note!

This is a tough time of year eh? All work and no play makes Dan a dull boy… and I really like my work! I wrote this over at Slaw to make myself feel better. If you read it I hope it does the same for you!

Dan

P.S. Go Canada!

Case Report – FCA quashes order for failure to consider privacy interest of non-party

On February 8th, the Federal Court of Appeal quashed an order by the Public Service Staff Relations Board because it accepted a consent order between a union and several employers that required the employers to disclose employee home addresses and telephone numbers to the union.

The Board held that the employers breached the Public Service Labour Relations Act by failing to provide the union with “some” contact information to facilitate its representational role. It reserved judgment on remedy, raised the issue of employee privacy to the parties and encouraged them to seek agreement on a remedy. The parties later came back before the Board and it endorsed their agreement in a consent order without reasons. The applicant, a one-time advocate against the kind of disclosure agreed to, was not given notice of the hearing. When she learned of the order, she commenced an application for judicial review.

The Court held that the Board erred in law by simply endorsing the consent order and failing to exercise its jurisdiction. The Court explained that this rarely-challenged practice can be fatal when there are non-parties whose privacy interests are affected by an agreement:

The Board was seized of the questions which it had raised because those questions went beyond the interests of the employers and the union and engaged the interests of persons who were not before it. Those persons had statutorily protected privacy rights of which the Board was well aware. The Board had an obligation to consider those rights and to justify interfering with those rights to the extent that it did. It could not abdicate that responsibility by simply incorporating the parties’ agreement into an order.

The Court ordered the matter to be remitted to the Board, ordered it to give notice to the Office of the Privacy Commissioner and suggested that the applicant also be given notice and standing.

For a very different take on non-party privacy and standing, see this decision of the British Columbia Court of Appeal.

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII).

Bernard and Canada (Attorney General), 2010 FCA 40 (CanLII)

“Privacy Issues in Civil Litgation” and “Email as Evidence” presentations

Just noting two presentations from yesterday, one on Privacy Issues in Civil Litigation with Alex Cameron and another on Email as Evidence with John Gregory. Though I’m getting a little worn down by the speaker’s circuit, it was a very special treat to present with two lawyers for whom I have significant affinity and respect. Slides are below.

Best regards!

Dan