Alberta Court says Charter precludes statutory compulsion to identify scrap metal sellers

On January 23rd, the Alberta Court of Justice held that the provisions of the Alberta Scrap Metal Dealers and Recyclers Identification Act that require scrap metal dealers to identify scrap metal sellers and transmit their information to government for law enforcement purposes violate the Charter prohibition against unreasonable search.

The Act requires sellers of scrap metal to identify themselves by the provision of the following information: first name, surname, current municipal address, government-approved identification, the name of the individual seller’s business, if applicable, and the specific make, model, colour, and license plate of the vehicle in which the scrap metal was transported to the dealer by the individual.

For, transactions involving “restricted metals” (including materials containing bronze and copper), dealers must transmit this information within 24 hours. To whom this transmission goes is significant. The Act says the transmission is to go to law enforcement in the manner prescribed. The regulation, though, establishes the government as the data holder and stipulates:

The Minister may require that peace officers and law enforcement agencies are granted access to the database referred to in subsection (2), provided that the disclosure of information in the database pertains to the discharge of the peace officer’s or law enforcement agency’s powers, duties or obligations under the Act.

The Court said the defence met its onus to prove the search was unreasonable. It noted that the Crown had not adduced evidence – in the form of “studies” – to justify the scheme, and held that the law that affords government latitude in regulatory searches ought no longer apply and, in any event, did not apply because the scrap metal scheme is targeted at everyone in the province rather than those who choose to enter a regulated sphere. The Court suggested that Albertans have no option to dispose of scrap metal without selling it, ultimately finding a violation and declining to apply the Act because the scheme was overbroad, intrusive and unjustified.

I’m prepared to assume a scrap metal theft problem in Alberta, and don’t have a conceptual problem with the identification of scrap metal sellers. I am not convinced by the Court’s handling of the regulatory context jurisprudence. The idea of routine transmission of transaction data directly to law enforcement does cause me pause, but the statute doesn’t quite invite that given the provision I’ve quoted above. This is a a point the Court did not address.

The decision is reminiscent of the Court Court of Appeal for Ontario’s decision in Cash Converters, in which it nullified a City of Oshawa bylaw as conflicting with MFIPPA, at the same time adopting and endorsing the IPC’s strict necessity test. The onus in Cash Converters, notably, was on the City.

R v Khairullah, 2025 ABCJ 14 (CanLII).

BC arbitrator finds privacy violation arises out of employer investigation

On October 31, British Columbia labour arbitrator Chris Sullivan awarded $30,000 to a union based on a finding that an employer unnecessarily investigated statements made by a union president in a video that the union claimed to be confidential. He based this award on a breach of the anti-union discrimination provision in the Collective agreement, the union interference provision in the BC Labour Relations Code, and a breach of the BC Freedom of Information and Protection of Privacy Act.

The union posted the video on YouTube without password protection. The union president testified, “that he first attempted to use the private setting for posting videos to the website, but this proved difficult to use as he had to manually enter a great deal of information in order to utilize this setting.” He posted the video openly, but rendered it unsearchable, and posted a confidentiality warning on the YouTube account and embedded a confidentiality warning in the video. The latter warning stated, “[this] video content is considered confidential and intended solely for ATU members.”

A union member leaked the URL for the video to someone in management who did not wish to be identified, who in turn reported the video to another member of management, stating, “you should check this out, it goes against what you are trying to build at transit.” That manager used the URL to watch the video and make a copy, ultimately disciplining the president for what he said in the video (later settling for a without prejudice disciplinary withdrawal). When the union demanded the employer destroy its copy, the employer asserted that it had obtained the video from a union member and that it was searchable on YouTube, both proven to be incorrect.

The crux of Arbitrator Sullivan’s finding is that the employer had no basis for investigating. He said:

Mr. Henegar had received only the Post-it note, followed by a conversation, with a supervisor/manager of the Employer, who did not want their identity revealed. On its own terms, the Employer’s Harassment and Respectful Workplace Policy was not engaged against Mr. Neagu, as no formal complaint was ever made against him, nor was he provided with any details of a complaint including the identity of a complainant as is required by that Policy. Mr. Neagu’s comments as Local Union President in the YouTube Video did not warrant an Employer investigation on any reasonable basis.

The employer and union had agreed that the video contained the union president’s personal information, so it followed from the above finding that the employer had collected the video in breach of FIPPA given the collection was not “necessary.”

This was a debacle. If the employer had watched the video and stopped I suspect it would have been found to be blameless. (Recall that it withdrew its disciplinary charge in a without prejudice settlement that had a plainly prejudicial impact on the outcome.) There were also too many other bad facts that bore upon the employer, including the fact it did not (or felt it could not) disclose the identity of the management employee who raised the video as a concern, and the facts that showed its entire premise for proceeding with investigation and discipline was flawed – my reading of the facts, not that of Arbitrator Sullivan, who held that management’s assertions were intentionally dishonest.

I don’t like this privacy finding for two reasons. First, having not seen the video, I question whether a speech from a union president to union members contains the president’s personal information. Second, Arbitrator Sullivan affirmed the president’s expectation of privacy despite the president’s election not to secure the video through the best means possible. As those who follow this blog know, I’m a fan of using the waiver/abandonment doctrine to incentivize good security practices and hold users accountable for bad security practices. That was not done in this case, though Arbitrator Sullivan’s affirmation was obiter.

The damages award is large for a privacy case, but it was driven by a finding that the employer engaged in a serious interference with union rights.

Corporation of The District of West Vancouver v Amalgamated Transit Union, Local 134, 2024 CanLII 124405 (BC LA)

New privacy framework for Charter-bound employers

I was up at the crack of dawn today to burn down to Cape May, New Jersey for the DeSatnick Foundation Paddle Around the Cape Race this Sunday. (It’s still not to late to donate.) I listened to the Supreme Court of Canada’s York Region District School Board decision between Allentown PA and the NJ border. It’s significant, but thankfully only in a technical sense – not changing the balance between employee privacy and management rights. I’ll explain.

Of course, this is the case about a series of “searches” conducted by a school principal in an attempt to manage a workplace called “toxic” by labour arbitrator Gail Misra, who held the principal’s searches were justified. I put “searches” in quotes because the term is a technical one in the section 8 Charter jurisprudence, which Arbitrator Misra referred to but didn’t apply very well. Any criminal lawyer or judge reading her decision would quickly pick out Arbitrator Mirsa’s jurisprudential flaws. These flaws are what ultimately led the majority of the Supreme Court of Canada to quash her decision.

Along the way the Court unanimously (and finally?) held that the Charter applies to school boards (Ontario ones, at least). It said, “Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government and, thus, they are subject to the Charter under Eldridge’s first branch.”

Given Charter application, the majority held that Arbitrator Misra erred by balancing interests under the privacy test long employed by arbitrators and endorsed by the Supreme Court of Canada in Irving Pulp and Paper – a derivative of the famous KVP test. She was bound to apply the section 8 Charter framework, the majority said, and do so correctly.

So Charter-bound employers, like law enforcement, must not conduct unreasonable searches. The test is two part. There must be a “search,” which will only be so if there is a “reasonable expectation of privacy.” And then the search must be “reasonable.” This is a highly contextual test that encompasses a balancing of interests, and a labour arbitrators’ balancing will be subject to review on the correctness standard.

Non Charter-bound employers – like Irving – will continue to live under the balancing of interest test and KVP. As to whether that will result in different outcomes, the majority suggests it may not: “The existing arbitral jurisprudence on the “balancing of interests”, including the consideration of management rights under the terms of the collective agreement, may properly inform the balanced analysis.”

I’ve said here before that privacy law should be unified such that the concepts that bear upon section 8 analysis are used by labour arbitrators. This judgement grants my very wish. It should lend predictability to otherwise unpredictable balancing by labour arbitrators, as should correctness review. And although non Charter-bound employers will have a notionally different framework, I expect that arbitrators will strive for unification.

And there is nothing in the judgement that alters the management-employee balance or elevates workplace privacy rights. To the contrary, it erases a Court of Appeal for Ontario judgement that one could argue was too insensitive to the principal’s interest in dealing with a serious workplace problem.

This very short and informal post is made (that is plainly influenced by my one day vacation) is made strictly in my personal capacity.

York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII).