Arbitrator awards privacy damages for implying an employee suffered from mental distress

On December 4th, Arbitrator Andrew Sims ordered the Edmonton Police Service to pay a grievor $5,000 in damages for breach of privacy.

The case arises out of the Service’s handling of an intense interpersonal conflict between the grievor, a police detective, and his staff sergeant. The conflict led to a formal review in which the reviewing investigator recommended the grievor’s transfer to a new unit due to interpersonal problems, the responsibility for which was borne by the grievor and others. Before the Service addressed the recommendation, however, the grievor and his staff sergeant had an altercation.

The altercation invited an immediate decision to pursue the recommended transfer. Although the formal review had raised no concerns about the grievor’s mental health, when a superintendent met with the grievor to advise him of the transfer she became concerned about his mental health on account of his reaction.

The superintendent raised the need for a psychological assessment, which the grievor undertook grudgingly but voluntarily. While this assessment was pending the superintendent met with the department and implied that the grievor was mentally unwell, in essence conveying the same opinion that was the basis for the pending assessment. In the end, a psychologist determined the grievor was “psychologically intact and functional.”

Based on the following analysis, Arbitrator Sims ordered the Service to pay $5,000 in damages:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information. To anticipate a diagnosis, based only on personal observations, however genuine the concerns,and to discuss that in public, is just as serious a breach of privacy. Arrangements were underway to get the grievor assessed. Implying anything as to his state of health pending that assessment was inappropriate and unnecessary. The decision was made to transfer the grievor based on the problems he was having with his Staff Sergeant and the Unit Review. This was decided before the health concerns arose from the interview. Given that, there was really no need to go into whether the grievor had health issues at all. The emphasis on the grievors “H.R. issues” had the effect of adding undue emphasis to the suggestion that the broader issues in the unit, which were serious in themselves, were due to the grievor’s health issues. That too was unjustified given the more balanced assessment in the unit review itself. The grievor’s reputation amongst his peers, his need and ability to interact with them in future, and his sense of employment security were all impacted by the excessive commentary during this meeting. While I accept that the comments were made out of genuine (although to a significant degree unfounded) concern, they amounted to a breach of privacy and caused harm to the grievor’s privacy interests. Police officers are particularly dependent upon their reputation amongst their peers. Any suggestion of mental problems or unreliability can seriously hurt their working relationships and their careers. I find these breaches of privacy sufficiently serious to justify financial compensation which, based on a review of the authorities discussed above, I award at $5,000.

Edmonton Police Service v Edmonton Police Association, 2014 CanLII 73072 (AB GAA).

A broader implication of the SCC’s decision in Fearon

The Supreme Court of Canada issued R v Fearon on December 11th. A 4-3 majority held that the police can search a cell phone incident to arrest without a warrant but subject to various limitations prescribed by the Court. One always must be careful in drawing too much from the Court’s handling of a specific issue in a specific context, but the dialogue between the majority and minority about the mitigating effect of a computer inspection protocol is notable for organizations.

The majority allows warrantless searches, in part, based on a finding that the privacy impact of a cell phone search incident to arrest can be meaningfully mitigated by the application of a “tailored” inspection. Justice Cromwell explains:

First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

This approach responds to the privacy concerns posed by the virtually infinite storage capacity of cell phones by, in general, excluding resort to that capacity in a search incident to arrest. It would also provide these protections while preserving the ability of the police to have resort to basic cell phone data where this serves the purposes for which searches incident to arrest are permitted.

Given the Crown bears the onus of establishing a reasonable search incident to arrest, the majority makes clear that police must take “detailed notes” of their inspection process.

For the minority, the privacy interest in a cell phone is too great to permit any warantless intrusion. Justice Karakatsanis also calls the majority’s reliance on the mitigating effect of a tailored inspection protocol “complicated,” “impractical” and inviting of “after-the-fact litigation.”

Organizations have been reckoning with an expectation of privacy on workplace computers since the Supreme Court of Canada’s 2012 finding in R v Cole. I’ve argued elsewhere that, notwithstanding Cole, the standard for employer searches will likely remain reasonably permissive. The reasoning in Fearon can be used by employers to argue for a permissive search standard. Employers should be careful, however, to (1) document the purpose of their inspections and (2) follow a logical, documented inspection process. Justice Karakatsanis is correct; litigation about the manner in which a computer inspection has been conducted is too easy to foresee.

R v Fearon, 2014 SCC 77 (CanLII).

Ontario arbitrator partly allows medical information management grievance

On October 8th, Arbitrator Goodfellow partly allowed a grievance that challenged various ways in which an employer administered its sick leave program. In doing so, he held that:

absent an express prohibition in a collective agreement, an employer is entitled use a third-party disability management administrator; and
absent specific collective agreement authorization, an employer cannot deprive employees of sick pay pending proof of entitlement as a matter of routine.

Arbitrator Goodfellow also made the following statement on the application of Ontario PHIPA to employers:

We agree with the Employer that it is not bound by PHIPA in its relationship to its employees. Qua long-term care provider the Employer is a “health information custodian”; qua employer it is not: see e.g. City of Kingston and Canadian Union of Public Employees, Local 109, supra. The same is therefore true of Acclaim. PHIPA is aimed at health care providers, not employers. Neither of the cases referred to by the Union establish otherwise. While both discuss the statute, and while Sanofi Pasteur appears to accept its application, there is no indication that the matter was the subject of any submissions in those cases as it was here and in City of Kingston. Having said that, like those arbitrators, we would view the terms of PHIPA as reflecting the kinds of privacy interests to which the Employer may be held accountable under the terms of the collective agreement.

This is a helpful statement given the confusion in the case law to which Arbitrator Goodfellow refers.

Revera Long Term Care Inc (Stoneridge Manor) v Canadian Union of Public Employees, Local 2564, 2014 CanLII 58768 (ON LA).

Workplace privacy panel at the #CIAJ “Privacy in the Age of Information” conference

I’m mid way through the Canadian Institute for the Administration of Justice “Privacy in the Age of Information” conference in St. John’s Newfoundland. It’s been a great conference so far, with quality presentations on tough administration of justice like issues like cyberbullying, the right to be forgotten and state surveillance.

My contribution was on the workplace privacy panel with Paul MacDonald of Cox & Palmer (as moderator), Emma Phillips of Sack Mitchell and Melanie Beuckert of the Court of Appeal of Manitoba. I started with a short “management perspectives” address and then Emma and I debated a variety issues, including computer access and monitoring, off-duty conduct and the exclusion of surveillance evidence at labour arbitration. Melanie played the “straight person” role wonderfully. It was fun, and I advanced my thinking about these issues significantly.

In preparation I worked up the speaking notes below, which capture some of the ideas I contributed to the discussion.

Review of IPC exclusion decisions now (officially) subject to reasonableness review

A friend just brought a notable FIPPA judicial review from February 24th to my attention. In it, the Divisional Court affirmed an IPC order to disclose the full names of FRO employees in response to a request for personal information.

The IPC held that the employment-related records exclusion in FIPPA did not apply to certain records containing employee names – records of services provided to the requester. The Court reviewed this on the reasonableness standard, finding that pre-Alberta Teachers‘ case law supporting a review on the correctness standard no longer applies. On the application of the exclusion, the Court rejected an argument that the records of service provided were employment-related in the context:

To qualify for the exclusion, the record must be about labour relations or employment-related matters. The dictionary definition of the word “about” requires that the record do more than have some connection to or some relationship with a labour relations matter. “About” means “on the subject of” or “concerning”: see Concise Oxford English Dictionary, 11th ed., 2004, s.v. “about”. This means that to qualify for the exclusion the subject matter of the record must be a labour relations or employment-related matter.

Adopting the Ministry’s broad interpretation of “about” would mean that a routine operational record or portion of a record connected with the core mandate of a government institution could be excluded from the scope of the Act because such a record could potentially be connected to an employment-related concern, is touched upon in a collective agreement, or could become the subject of a grievance. This interpretation would subvert the principle of openness and public accountability that the Act is designed to foster.

This should be read to be consistent with the Divisional Court’s earlier decision that there need only be “some connection” with excluded subject matter for the exclusion to apply: see Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII). Records that have some connection (i.e. a partial connection) to excluded subject matter are arguably still excluded, but the connection must be real, not speculative and not driven by the context in which a request is made.

The Court also affirmed the IPC’s finding that full name information is not exempt under the “unjustified invasion of personal privacy” exemption.

Question. Why not argue that the information at issue – full names or identifying information – is not “personal information” to which the right of access to personal information applies? The right of access to personal information applies to information and not whole records. In the absence of a special context, the identity of employee/service provider names should not constitute the requester/service recipient’s personal information.

Ministry of Community and Social Services v Doe et al (2014), 120 O.R. (3d) 451.

BCLRB affirms decision denying grievor anonymity

There has been some significant British Columbia litigation about whether the British Columbia Personal Information Protection Act gives a grievor a right to have his identity obscured in an arbitration award.

On May 29th the British Columbia Labour Relations Board affirmed a decision by arbitrator Stan Lanyon on the issue.

Thr Board held that PIPA does bind a labor arbitrator, but that labor arbitrators nonetheless retain a discretion in deciding whether to grant a right of anonymity based on the “authorized by law” exception to the consent rule.

The Board also affirmed Arbitrator Lanyon’s finding that the arbitration process is “not a purely private dispute resolution mechanism,” that there is therefore a public interest in open proceedings and that there is a particular public interest in publishing the names of individuals who commit employment offences.

Look for an appeal on this very principled and important issue.

Sunrise Poultry Processors Ltd v United Food and Commercial Workers International Union, Local 1518, 2014 CanLII 27506 (BC LRB).

Scope of employer’s forensic examination criticized by PSLRB

There are a some notable points in a June 6th decision of the Public Service Labour Relations Board that upholds the discharge of a federal public servant for forwarding e-mails to his personal e-mail account.

The employer had discharged the employee for sending home restricted-access documents about internal job competitions, including documents related to a competition in which he had participated and documents containing the personal information of 108 other employees. The Board held that the grievor, who was an HR assistant, had engaged in a serious breach of trust and caused the employer embarrassment: “Progressive discipline does not apply to this case since very serious misconduct occurred.”

Although the Board dismissed the grievance with this strong and favorable employer endorsement, it did express a “concern” about the manner in which the employer conducted its forensic investigation into the grievor’s system usage. It said:

The grievor also raised concerns about the lack of concern that the employer showed for his privacy, specifically that it gave no specific instructions to Mr. Roussel about protecting the grievor’s privacy when Mr. Roussel conducted his investigation. I am also concerned about it. Furthermore, in the absence of such instructions, Mr. Roussel included in his report personal information about the grievor that had nothing to do with the purpose of the investigation, which was to inquire into the grievor conducting personal business using the employer’s network. I did not report on it since it was irrelevant to deciding the four grievances in front of me. However, this lack of respect for the grievor’s privacy does not reduce the seriousness of his misconduct. At this point, I can recommend only that in the future, the employer take employees’ privacy under consideration when conducting that type of investigation.

It’s not clear from the decision how exactly the employer erred given the Board’s limited description. In any event, employers should create and administer a protocol that governs non-routine access to system information and non-routine system monitoring – e.g., access for the purpose of conducting audits and investigations.

Gravelle v Deputy Head (Department of Justice), 2014 PSLRB 61 (CanLII).

Court dismisses application for information about business partner’s employees

On April 2nd, the Ontario Superior Court of Justice dismissed an application for the disclosure of detailed employee payroll information from an employer to its partner in a joint venture.

The partner was partially responsible for the employer’s wage bill and relied on its right to inspect records under the joint venture agreement. The employer argued that, despite the agreement, it could not disclose employee personal information without violating PIPEDA. As an alternative, the employer offered to have an audit conducted and share the results. The partner felt this was insufficient.

Justice Perell held that he had no power to make an order that would relieve the parties from the PIPEDA consent requirement, stating “s. 7(3)(c) of PIPEDA does not provide a free-standing jurisdiction to grant exemptions.” He dismissed the application without prejudice to the filing of a new application based on the “activation” of another PIPEDA exemption.

Mountain Province Diamonds Inc v De Beers Canada Inc, 2014 ONSC 2026 (CanLII).

Arbitrator orders damages for employer’s unauthorized call to personal doctor

On September 25th the Grievance Settlement Board ordered the province to pay $2,500 in damages for making an authorized call to an employee’s personal doctor. Vice-Chair Fisher based the award on the province’s failure to respond appropriately to the breach and evidence of mental distress:

However the Grievor is also entitled to a further remedy for this serious breach of the MOS. I am deeply troubled by the fact that Ministry apparently made no attempt to ascertain who in fact made this improper phone call. One would think that the Ministry would have some interest in trying to determine who in fact made such an inappropriate phone call, but apparently they did not.

The Grievor indicated that these series of events caused him distress and that he felt disgusted by the actions of the person whom made the call to his doctor without his consent. The Grievor is entitled to monetary damages for his distress. Although he did not receive any medical attention for this distress, it does not mean that his distress was not real.

The Union proved the call and not the identity of the caller, but the province did not take steps to rebut the inference that the call came from someone in its employ. The caller obtained information about appointments the grievor had attended from a medical secretary who was subsequently reprimanded for her breach.

Ontario Public Service Employees Union (Spicer) v Ontario (Labour), 2013 CanLII 72580 (ON GSB).

Lancaster House panel on monitoring job performance and productivity

I spoke today at a Lancaster House labour arbitration conference on a good panel with Arbitrator Paul Craven and union counsel Samantha Lamb, with Sean McGee of Nelligan O’Brien Payne as our chair.

I quite like this Cargill Foods case by Arbitrator Craven, in which he distinguishes between omnipresent surveillance (my words) and other continual collections of personal information that are more benign. His comments on Cargill today highlighted to me that there is no proscription against collecting personal information for the purpose of improving job performance (as is often suggested) but quite a real proscription against collecting personal information in a manner that is highly invasive and a substitute for in-person supervision.

I’ve put my speaking points below. They include some ideas about the BC OPIC’s recent Kone case, a case which further illustrates this point.