OLRB dismisses vehicle telematics policy grievances

On January 21st, the Ontario Labour Relations Board dismissed three policy grievances that challenged the use of vehicle telematics and a rule against the personal use of company vehicles without permission. Vice-Chair Silverman stressed that use of company vehicles to get to and from work was optional but of benefit to employees and said the following about the union’s “less intrusive means” argument:

The union’s suggestion that the employer use another system for monitoring use such as the PDA or the vehicle’s odometer or gas consumption,either is not germane to what the employer is permitted to do. The issue is whether the employer is precluded from using the Telematics device not whether some other device, is adequate to the purpose.

In assessing the reasonableness of the personal use prohibition, Vice-Chair Silverman recognized that the employer exercised a discretion to relieve against the prohibition and it was reasonable to do so based on a disclosure of off-work plans.

International Union of Elevator Constructors, Local 50 v Otis Canada Inc, 2013 CanLII 3574 (ON LRB).

BC commissioner uses fleet management complaint to answer BIG questions about PIPA

On December 19th, the British Columbia Office of the Information and Privacy Commissioner dismissed a complaint about the collection and use of vehicle location and operation data for the purpose of managing employee performance. In doing so, the OIPC opined broadly on the meaning of “personal information” and “work product information” and on the standard of reasonableness for collecting and using employee personal information under BC PIPA.

The case deals with an elevator company and its field mechanics. The mechanics objected to the company’s collection of data about service vehicle location and data about service vehicle operation – e.g., distance travelled, speed and incidents of harsh braking. The company argued this information is not regulated by BC PIPA at all because it is not “personal information” or, alternatively, is “work product information.”

The OIPC rejected the company’s primary argument and held that vehicle location and operation data is personal information. In doing so it rejected a narrow definition of personal information that requires personal information to be “about an identifiable individual” in that it reveals something private or intimate about the individual – a concept accepted in some case law and loosely related to the “biographical core” concept featured in Charter search and seizure jurisprudence. Instead, the OIPC said that information about an identifiable individual is personal information if it “is collected, used or disclosed for a purpose related to the individual.”

The OIPC also rejected the company’s alternative argument and held that vehicle location and operation data is not work product information. It reasoned that vehicle location and operation data is not “prepared or collected” by an individual in the course of work and that, generally, data that is automatically recorded “without directed conscious input by an individual” is not work product information.

While these principles favour privacy protection, the OIPC also demonstrated respect for employer interests in finding the company’s collection and use of employee personal information was reasonable for its purposes. The OIPC expressly rejected a four part reasonableness test (generally disliked by employers) in favour of a more flexible “reasonableness in all the circumstances” test:

The assessment of reasonableness will occur in the context of the established purposes for the employer’s collection, use or disclosure and thus should have some regard to that context. But the assessment may also address a number of other possible considerations.

As part of its reasonableness discussion, the OIPC also noted that an organization need not adopt the least privacy-intrusive alternative regardless of cost or consequences (though should be able to demonstrate that it has given “reasonable consideration” to less intrusive alternatives).

Schindler Elevator Corporation (Re), 2012 BCIPC 25 (CanLII).

Case Report – Federal Commissioner dismisses GPS complaint

In a recently published decision that is dated May 27, 2009, the Office of the Privacy Commissioner of Canada dismissed a GPS complaint as not-well founded. The decision is evidence of a developing model for permissible GPS use in the Canadian privacy commission and arbitral jurisprudence.

Decision-makers have recognized that vehicle-based GPS systems entail the collection of non-sensitive personal information. Such systems are therefore ordinarily upheld for common fleet management purposes such as dispatch, scheduling and driver safety. Use of GPS data in support of investigations or exception follow-up also appears to be safe. In this case, for example, the OPC held that it was reasonable for a transit organization (the custodian of the GPS data) to report late arrivals to its contracted driver’s employer. Other requirements include notification and the implementation of reasonable security measures.

The limits? There is an expressed aversion to the use of GPS for routine supervisory purposes; in ordinary circumstances GPS is not a substitute for calling a driver to check on his or her whereabouts. Use of GPS as a tool to manage a documented performance management problem on a time-limited basis might be looked upon more favorably.

The case also raises an notable scenario about PIPEDA application, but I will save my thoughts on this complex subject for another day.

PIPEDA Case Summary #2009-011.