Surveillance Evidence and the Reasonableness Requirement Debate – Where do Ontario Arbitrators stand?

Ontario Labour Arbitrator Brian Sheehan is the latest arbitrator to weigh in on whether it is proper for a labour arbitrator to exclude relevant surveillance evidence because the surveillance evidence does not pass an objective “reasonableness” test. In International Hotel v. United Food and Commercial Workers, Arbitrator Sheehan dealt strictly with the legal test. He held that arbitrators can and should exclude evidence obtained through covert off-duty surveillance if the surveillance effort is not reasonable in all the circumstances.

There is quite a split in opinion amongst arbitrators on this question. Here is my understanding of where Ontario arbitrators stand.

This list is based on Ontario because the debate seems most alive here. Also, as some have argued, there is a statutory underpinning for privacy rights in other provinces that makes Ontario unique.

I must make two qualifications given the above display’s simplicity. First, the list doesn’t indicate the strength with which arbitrators have endorsed the two positions or their bases for doing so (which vary). Second, it is also not to suggest that the all the “reasonableness arbitrators” have adopted the same standard. Some, for example, have suggested that reasonableness should be assessed with an understanding that excluding relevant evidence significantly affects an employer’s right to be heard and an arbitration board’s truth-seeking function.

Order to Identify Anonymous Message Board Users Granted (Ontario)

On May 30th, the Ontario Superior Court of Justice granted an order to defamation plaintiff Richard Warman to help him identify two individuals he alleges defamed him by posting comments on the “Freedominion” message board.

Mr. Warman’s process of identifying eight “John Doe” defendants has taken some time. He first obtained an order in March 2009, but it was quashed in May 2010 by the Divisional Court – see “Court says suing message board operator not an easy means to identify anonymous internet users.” Following the Divisional Court order, Mr. Warman discovered six of the John Does’ identities without the aide of a court order. He then came back to the Court to identify the unidentified two.

Justice Blishen issued an order requiring the operators of the Freedominion site to provide identifying information over their objection and based on the four-part test articulated last May by the Divisional Court. She rejected an argument that the use of pseudonyms gave the unidentified John Does a reasonable expecation of privacy. She also rejected an argument that the common use of “hyperbole” and “exaggeration” on the Freedominion site rendered the impugned publications incapable of having a defamatory meaning.

Hat tip to Peg Duncan!

Warman v. Wilkins-Fournier, 2011 ONSC 3023 (CanLII).

BC Arbitrator Endorses Unified Test for Assessing Legitimacy of Access to Internet Log File

On May 12th, Arbitrator Nicholas Glass held that a British Columbia public body did not breach the Freedom of Information and Protection of Privacy Act by accessing an internet log file in the course of a time theft investigation.

The outcome is not surprising. The employer had grounds (an anonymous complaint), the grievor had previously been disciplined for misconduct that raised questions about his dishonesty, the employer had a good acceptable use policy that the grievor had recently acknowledged and log files contain relatively non-sensitive information. Theses facts left arbitrator Glass with a very different concern that dealt with by the British Columbia OIPC in 2007 when it held that the University of British Columbia breached FIPPA in installing spyware in course of a time theft investigation.

The decision is more notable for Arbitrator Glass’s suggestion that the statutory “necessity” requirement (common to most public sector privacy statutes) should be unified in principle with the reasonableness requirement applied by labour arbitrators. In doing so, he endorses the following statement by former British Columbia Commissioner Loukidelis in the Mission School District Case:

At the same time, I am not prepared to accept, as the Complainants contend, that in all cases personal information should be found to be “necessary” only where it would be impossible to operate a program or carry on an activity without the personal information. There may be cases where personal information is “necessary” even where it is not indispensable in this sense. The assessment of whether personal information is “necessary” will be conducted in a searching and rigorous way. In assessing whether personal information is “necessary”, one considers the sensitivity of the personal information, the particular purpose for the collection and the amount of personal information collected, assessed in light of the purpose for collection. In addition to FIPPA’s privacy protection objective is also relevant in assessing necessity noting that this statutory objective is consistent with the internationally recognized principle of limited collection.

In applying this pragmatic approach, Arbitrator Glass rejects the notion that the employer should have simply confronted the grievor. He states, “The point is that in order to manage the employment relationship the employer in these circumstances was entitled to thorough, accurate and objective information about the frequency and extent of [the grievor’s] non-work-related internet use.”

Fraser Health Authority v. H.S.A.B.C., 2011 CarswellBC 1174 (Glass).

Employee benefits…there’s an app for that!

It was only a matter of time before app-mania struck the pension and benefits industry. In the past few weeks, it seems like industry publication has an article about another service provider launching an app or using social media as a communications tool.

In recent years, we’ve seen the rise of auto-enrollment, online planning tools, employee websites and portals, but the introduction of apps may bring employee engagement and access to their benefit or retirement savings information to a new level. For example, Sun Life Financial has announced that it plans to offer a free mobile application for group benefits and group retirement and savings plan members. The app will allow plan members to submit benefit claims or check the balance of their retirement plan accounts.

At a time when defined contribution plan sponsors are concerned about the lack of engagement by members responsible for investing their plan assets, the advent of apps has the potential to increase participation and interaction. The ability to see your pension plan account balance at the press of a button (or tap of the screen as the case may be) also enhances transparency and may help increase member awareness and education.

Other benefit providers are also jumping on the app-bandwagon, capitalizing on the increasing number of people with smartphones. For example, Morneau Shepell has launched “My EAP”, which will provide users with access to interactive tools, support resources (such as e-counselling) and other employee assistance programs. Many of these features are already available on Morneau’s website, but the app enhances the ease of access for people on the go, giving access to EAP services anywhere and anytime they are needed.

The use of apps and other social media technology is creating new opportunities for communication and disclosure with pension and benefit plan members. However, as always, apps and social media must be integrated into an overall communications strategy. Consideration must also be had to ensuring the privacy and security of such sensitive personal information.

Specifically with reference to pension plans, plan administrators must also make sure they are complying with any applicable rules regarding the use of electronic communications. Governments have implemented a number of rules regarding when and how electronic communications can be used in the administration of a pension plan. I will discuss this in more detail in an upcoming post.

Divisional Court Says Homeowner Privacy Concern Required Notice to Homeowners

On May 12th, the Divisional Court issued a brief judgment by which it sent an FOI matter back to the Information and Privacy Commissioner/Ontario for a re-hearing after notice is given to affected parties.

The records at issue contain toxicity test results that are associated with “homeowner’s addresses or location information.” The Court held that this information is arguably the personal information of homeowners, who should have been given notice of hearing by the IPC as a matter of procedural fairness, in particular given the information was collected by the Ministry of the Environment based on an assurance of confidentiality.

Northstar Aerospace v. Ontario (Information and Privacy Commissioner), 2011 ONSC 2956 (CanLII).

Unauthorized Secondary Use Claim To Proceed, Unauthorized Retention Claim Dismissed

On May 12th, the British Columbia Supreme Court allowed a novel privacy class action to proceed.

While most civil privacy claims relate to claims of improper disclosure, the plaintiffs here objected to the unauthorized retention and use of personal information – specifically, the retention of newborn blood samples for medical purposes and (secondary) research purposes that were not disclosed at the time of collection. The Court held that liability for the secondary use was a genuine issue for trial.

The Court rejected the plaintiffs’ claim that rested on the alleged unauthorized long term retention of samples for medical purposes, a practice the plaintiffs claimed created a “fully functional DNA database.” The Court held that authorization to retain for medical purposes was not in doubt given the plaintiffs consented to collection for medical purposes and, at the time, did not raise any concerns about retention for the same purposes.

D. (L.) (Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC 628 (CanLII).

SCC Establishes Scope of Access to Information Act

Yesterday, the Supreme Court of Canada issued a decision that deals with the scope of Access to Information Act application, in particular to “ministerial” records.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister Chretien’s agenda books from the Privy Council Office and the Royal Canadian Mounted Police and requests for records from the former transport and defence ministers.

The bulk of the records in dispute were only in the custody of the PMO, the Office of the Minister of Transport and the Office of the Minister of National Defence, raising a question about whether these offices are subject to the act as “institutions.” None of these political offices are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office, the Department of Transport and the Department of National Defence.

In June 2008, Justice Kelen of the Federal Court, conducted a lengthy analysis of the text and structure of the ATIA and extrinsic factors showing Parliament’s intent. He concluded that, for the purposes of the ATIA, the PMO is not part of the PCO nor are other ministerial offices part of their departments. According to this finding, records within the PMO and ministerial offices can only be subject to the ATIA if they are in the “control” of the bureaucracy. Parts of former Prime Minister Chretien’s agenda book, for example, were admitted to be in the control of the Privy Council Office and the Royal Canadian Mounted Police and subject to the Act. Justice Kelen ordered this information to be disclosed based on a finding that the Prime Minister is an “officer” of the Privy Council Office and, cannot shield information which “relates to the position or functions of the individual” from public access based on the personal information exemption. This last finding was overturned by the Federal Court of Appeal in June 2009.

The Supreme Court unanimously dismissed the Information Commissioner of Canada’s appeal, with Justice Charron writing for eight judges and Justice LeBel writing a concurring judgement on his own. It is therefore clear that the PMO and ministerial offices are not institutions under the ATIA and that the Prime Minister is not an officer of the PCO. The Court also unanimously endorsed the two-part control test articulated by Justice Kelen: records are under the control of a government institution if (1) they relate to a departmental matter and (2) the government institution could reasonably expect to obtain a copy of the document upon request. Regarding the second part of this test, Justice Charron stressed that the required analysis is contextual and normative:

Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. (emphasis in original)

The split between Justice LeBel and the majority is puzzling. Justice LeBel joins the majority on all findings but takes great issue with its reasoning, which suggests that Parliament intended ministerial records to have special excluded status. Justice LeBel accuses the majority of creating a presumption that such records are not subject to public access, which the majority flatly denies. Given the majority’s denial, Justice LeBel’s split should not have great practical significance.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.

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).