Arbitrator issues helpful video surveillance award

Arbitrator Paula Knopf’s May 19th video surveillance decision is helpful to management on two points.

First, she validates the management need to investigate wrongdoing rather than immediately confront a suspected wrongdoer: “if the suspected employees had been confronted with the Employer’s suspicions in late April or May as the Union suggested, while that might have had an immediate, albeit temporary, deterrent effect, that would have prevented any real hope of discovering the true extent of the problem.”

Second, Arbitrator Knopf analyzed whether inadmissibility was an appropriate remedy for the employer’s breach (rather than ruling the evidence to be inadmissible as an automatic consequence of the breach).

Ottawa-Carleton District School Board v Ontario Secondary School Teachers’ Federation, District 25, 2015 CanLII 27389 (ON LA).

Alberta OIPC lacks power to compel production to resolve solicitor-client privilege appeals

On April 2nd, the Court of Appeal of Alberta held that the Alberta Freedom of Information and protection of Privacy Act does not give the Alberta OIPC the power to compel the production of records over which a public body has asserted solicitor-client privilege.

The Court considered the power granted by the following provision:

Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection … (2).

It held that this language was not clear, unequivocal and ambiguous enough to overcome the presumption against abrogation of solicitor-client privilege. The ratio, at paragraph 48, is very clear and simple: “This [authorization of infringement] requires specific reference to solicitor-client privilege.”

Also of significance, the Court held that the chambers judge (below) erred by construing provision according to “modern approach,” which it said cannot be reconciled with the rule of strict construction established by the Supreme Court of Canada in Blood Tribe. The Court allowed the appeal and ordered the OIPC to pay the institution’s costs.

University of Calgary v JR, 2015 ABCA 118.

FOI matter moot because the stated reasons for a request spent

On December 15, the Alberta Court of Appeal held that an FOI matter was moot, in part, because the stated reasons for a request were spent. It said:

Second, the dispute about whether certain records can remain private is of no further consequence or practical utility. The ATA wanted SBEBA’s records for reasons that are, now, purely academic. There is no longer any need for the ATA “to gain a full understanding of the operation of SBEBA with its member school boards”; there is no longer any risk of the ATA not “following correct procedures related to the SBEBA” or “interfering with or being seen to interfere with the SBEBA”. Further, the collective agreement entered into between the ATA and Buffalo Trail has long since expired, such that there is no longer any need “to act fully on” it. SBEBA was not revived for the most recent collective bargaining process and will not be the bargaining agent for, or otherwise negotiate on behalf of, Buffalo Trail in any future such process or dispute.

The Court also held that the OIPC lacked standing to pursue an appeal because the issue under appeal did not go to its jurisdiction.

This is another example of the very tough go the OIPC has had in the Alberta courts.

Alberta Teachers’ Association v Information and Privacy Commissioner, 2014 ABCA 432 (CanLII).

Addressing the privacy interests of affected individuals

I presented today at the Canadian Institute’s program on advanced administrative law. My topic was about how to deal with the privacy interests of affected non-parties. Here are my slides, revised based on my evolving understanding of this (difficult) issue. My thesis as it stands: we need to develop a principled exception to the audi alteram partem rule that governs when affected non-parties get notice and right to be heard. Courts and admin law decision makers appear to be attracted to solution that rests on the involvement of an appropriate representative party, but the current solutions are not driven by any express principle.

Request for jury contact information dismissed

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for third-party production of the names, telephone numbers and home addresses of 800 people summoned to jury duty. The plaintiff in a slip and fall claim wanted this information to contact potential witnesses, a plan that Mulligan J held the plaintiff did not establish was necessary. Notably, Mulligan J also reviewed various authorities about the role of a criminal jury and held that, in the context, the contact information at issue was “core biographical information.”

I’m most interested about the Court’s sensitivity to the privacy interest and procedural rights of the affected 800 individuals. It apparently adjourned the first day of the motion and ordered the plaintiffs to serve the IPC/Ontario. The IPC chose not to attend, perhaps because it viewed attendance as inconsistent with its mandate. The Court referenced a recent Alberta case in which the Court of Queen’s Bench of Alberta appointed an amicus and directed it to give notice to a group of jury members (and not a large jury pool) whose privacy interests were at stake in light of a similar production request. I’ll be addressing the procedural dilemma posed in similar circumstances at the Canadian Institute’s upcoming “Advanced Administrative Law and Practice” conference. I’ve clipped the program below.

Champagne v Corporation of the City of Barrie, 2014 ONSC 6103 (CanLII).

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.

Arbitrator gives notice to affected individuals after ordering their PI to be produced

On July 14th, Arbitrator Kuttner ordered an employer (and MFIPPA institution) to disclose retiree contact information to a union and to deliver a notice to retirees about his production decision.

MFIPPA does not apply to employment-related records nor, in general, does it give employees and retirees of MFIPPA institutions privacy rights. Arbitrator Kuttner seemed to accept this in finding that MFIPPA did not preclude him from making the requested order, though he also made a finding that the requested disclosure was permissible under MFIPPA as a “consistent purpose.”

More significant is how Arbitrator Kuttner dismissed the employer’s argument that the procedural rights of affected retirees must be respected in determining the production motion. He said:

The situation before me is far removed from that dealt with by the [Court of Appeal for Ontario’s decision] in Re Bradley. There are not here two groups of employees covered by the same collective agreement competing for benefits under its terms, with one group stripped of benefits previously accorded in favour of another group to which they are newly afforded. Rather a bargaining agent, bound to represent fairly before an employer a discrete group of retired employees whose common interests under a collective agreement are in jeopardy, seeks disclosure of their personal contact information held by the employer, so that it can fulfill its representational role. As discussed above, that role is one with common law underpinnings, now rooted in the LRA, and recognized by the parties to the Collective Agreement. Of note in PIPSC v. Canada (Revenue Agency) supra, where employee privacy rights were at issue, is the Supreme Court’s comment that “the usual practice” is not to give affected employees notice of such proceedings, and the same would hold here in the case of retirees.

Arbitrator Kuttner nonetheless considered it “appropriate” to advise the retirees of his production decision and ordered the employer to deliver the letter I’ve attached below.

CUPE, Local 27 and The Greater Essex County District School Board (14 July 2014, Kuttner).

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).