System monitoring decision stresses employees’ informed choice

In December of last year, Arbitrator Abramsky upheld a grievance that challenged the reasonableness of system monitoring conducted by an employer, though only to the extent the employer’s workplace monitoring policy (which is required in Ontario) did not provide clear enough notice. She accepted the employer’s argument that employee personal use of workplace systems is a matter of informed choice, reasoning in part as follows:

The Union asserts that it is common for employees to check their personal emails while at work. I am sure that is true, but employees can choose how they send and receive personal emails while at work, and on what device. With knowledge of the Employer’s monitoring practices, an employee may make an informed choice. Having to use a personal device for personal emails may represent a change for some, it is not an undue burden. If an employee considers it to be so, however, they can choose to use the Employer’s equipment, WiFi or network, with the knowledge that the email may be monitored. Consequently, I am persuaded that the Employer’s EMP in regard to emails is a reasonable exercise of management rights, with one exception beyond clarifying how it determines if a private email pertains to Rideauwood.

Maintenance of network security is of utmost concern, and is supported by robust monitoring of employee system use. Most employers, however, allow personal use of their systems that attracts a limited expectation of privacy. So long this personal use is a privilege and not a right, the privacy interest associated with it cannot prevail over an employer’s interest in monitoring, and the provision of clear notice ought to be the only legal requirement for lawful monitoring. This decision supports this argument.

Ontario Public Service Employees Union v Rideauwood Addiction and Family Services, 2024 CanLII 120507 (ON LA).

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).

Nova Scotia arbitrator admits audio recording over union objection

On April 17, Nova Scotia labour arbitrator Augustus Richardson admitted audio recording evidence that a union objected to even though the employer failed to give proper notice of recording.

The grievors were correctional officers discharged for behaving offensively and unprofessionally in transporting an inmate to a hospital. A hospital social worker complained of misconduct that occurred in the hospital. This led the employer to speak with the inmate, who did not provide a statement, but said something – it’s unclear what – that led the employer to download and review audio-visual recordings from the vehicle the grievors used to transport the inmate.

The vehicle had visible cameras that faced its two inmate compartments, but the union and the grievors claimed they were unaware the cameras recorded audio. The employer had issued a bulletin about the cameras that explained that they recoded audio, but didn’t have a policy or post signage. Arbitrator Richardson heard evidence, and accepted that the grievors and the union were unaware.

Arbitrator Richardson nonetheless admitted the evidence. Relying on the Supreme Court of Canada decision in Syndicat des employé professionnels de l’Université du Québec à Trois-Rivières v. Université du Québec à Trois-Rivières and Alain Larocque 1993 CanLII 162 (SCC), [1993] 1 SCR 471, he held that declining to admit such central evidence would invite a breach of natural justice. Arbitrator Richardson also held that the employer’s access to and use of the evidence was not unreasonable, and was separate from the employer’s recording of the evidence (which the union had not grieved).

There are two points of significance in this case.

First, recording audio with video is risky because it captures private communications. Providing clear notice is important to protect against potential criminal liability (for breach of the Criminal Code wiretap prohibition), and also to avoid disputes like the one adjudicated by Arbitrator Richardson.

Second, Arbitrator Richardson’s approach to the union’s objection is to be preferred to any approach to the exclusion of evidence that does not consider and weigh the impact of exclusion on hearing fairness. He does not a say that a labour arbitrator has no jurisdiction to exclude evidence obtained in breach of privacy but, rather, says that such exclusion must be “appropriate” – i.e., not work an unfairness or bring the administration of (arbitral) justice into disrepute [my words].

Nova Scotia Government and General Employees’ Union v Department of Justice (Correctional Services), 2023 CanLII 31524 (NS LA).

GSB addresses use of surveillance footage

In a decision first released last September, the Grievance Settlement Board partly upheld a grievance that challenged the use of video surveillance footage in Ontario correctional facilities.

It has become standard to establish the purpose of workplace video surveillance as supportive of safety and security and to proscribe the use of surveillance technology as a replacement for supervision. In principle this distinction makes sense, though in practice it is unclear and has led to disputes.

In this case, the GSB affirmed the employer’s use of video footage to address misconduct discovered incidentally during a legitimate surveillance footage review that was occasioned by a security incident. Vice-Chair Anderson said:

The evidence as to why the surveillance camera was placed in the central control module was scant. The ISPPM indicates “audio and video technology are tools to enhance safety and security”. Sgt Essery’s evidence suggests that was the purpose for the camera in the central control module. It is clear the duties of the officers in the control module are reasonably necessary to the safety and security of inmates, staff and property in the building. I infer the ability, if necessary, to observe central control module officers in the performance of those duties has a safety and security function. The camera is also used to observe the hallway next to the central control module through which inmates pass, in particular when they are being escorted to or from the segregation units. There is no dispute that this has a safety and security function. There is no evidence that the camera was placed in the central control module for any other purposes. I conclude its placement was done in good faith for purposes permitted by Appendix COR10.

The GSB also recognized that the employer could justify the use surveillance video to spot check compliance with a procedure because the spot check and procedure were both to uphold safety and security – the primary purpose of video surveillance. In the circumstances, however, the GSB held that the employer had not proven a sufficient need for such spot checks.

The practical lesson for employers is to be wary of vague and unbounded promises to refrain from using video surveillance. The matter is one of nuance.

Ontario Public Service Employees Union (Union) v Ontario (Solicitor General), 2021 CanLII 95740 (ON GSB).

The union right of access to information

I’ve done a fair deal of enjoyable work on matters relating to a union’s right of access to information – be it under labour law, health and safety law (via union member participation in the health and safety internal responsibility system) or via freedom of information law. Today I had the pleasure of co-presenting to the International Municipal Lawyers Association on the labour law right of access with my colleague from the City of Vaughan, Meghan Ferguson.

Our presentation was about how the labour law right has fared against employee privacy claims. In short, it has fared very well, and arguably better in Ontario than in British Columbia.

I don’t believe the dialogue between labour and management is over yet, however, especially as unions push for greater access at the same time privacy sensitivities are on the rise. The advent of made-in-Ontario privacy legislation could be an impetus for a change, not because it is likely to provide employees with statutory privacy rights as much as because the new legislation could apply directly to unions. So stay tuned, and in the interim please enjoy the slides below.

Fed CA orders removal of witness names in administrative tribunal decision

On September 30th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board ought not to have referred to witnesses by name in a disciplinary decision about a suspension for “inappropriate acts involving a number of young female subordinate employees.”

This was a second time the matter of the witnesses’ anonymity came before the Court. In 2017, it had held that the Board’s decision to publish witness names was unreasonable and directed the Board to re-weigh the interests at stake.

The Board again declined to refer to witnesses by initials, seemingly put off by the employer’s pre-hearing “promise” to the witnesses that their identities would be protected from publication. What the employer said to the witnesses, the Court held, was not right inquiry. For that and other reasons, it quashed the Board’s second decision as unreasonable and (extraordinarily) substituted its own judgement.

Here are two points of significance:

the Court suggested that the (strict) Dagenais/Mentuck test applied by courts is the test to be applied by administrative tribunals like the Board; and
the Court recognized the public interest in encouraging the reporting of inappropriate sexual behavior by protecting the anonymity of witness, comparing the interest to the interest in encouraging the reporting of sexual assaults.

Canada (Attorney General) v. Philps, 2019 FCA 240 (CanLII).

Arbitrator orders $3,000 in privacy damages

On April 27th, Arbitrator Knopf ordered that $3,000 in damages be paid to a grievor for breach of privacy and harassment because:

the grievor’s personnel file contained an inexplicable notation that the grievor advised his supervisor that he injured his penis while cooking nude at home; and
the employer contacted the grievor’s doctor to confirm the doctor’s signature without justification and without consent.

Ms. Knopf said that these claims were “serious enough to warrant damages, buy they were not profoundly damaging to [the grievor’s] reputation or harmful to his privacy, nor did they have a negative impact on his benefit claims, status in the workplace or reputation in general.”

York (Regional Municipality) v Canadian Union of Public Employees, Local 905, 2017 CanLII 56454 (ON LA).

Arbitrator orders $25,000 in damages for privacy breach

Arbitrator Stout’s April 28th decision has received ample coverage, but I’d like this site to be a relatively complete repository of privacy damages awards. Mr. Stout ordered an employer to pay $25,000 in general damages after a supervisor disclosed an employee’s visual disability to three other employees after learning of the disability in a prior arbitration proceeding. The supervisor apologized orally and in writing, which presumably mitigated the breach. He did not testify, however, and Mr. Stout inferred that the disclosure was undertaken as retaliation for the outcome of the prior arbitration, a significant aggravating factor. The grievor also suffered distress that required him to undergo medical treatment and the employer “did very little” to remedy the breach in its response (e.g., discipline on the supervisor).

Canadian Pacific Railway Company v Teamsters Canada Rail Conference, 2016 CanLII 25247 (ON LA).

USB key treated as a private receptacle by labour tribunal – but why?

On March 29th the Grievance Settlement Board (Ontario) held that a government employer did not breach its collective agreement or the Charter by examining a USB key that it found in the workplace.

They key belonged to an employee who used it to store over 1000 files, some of which were work-related and allegedly confidential and sensitive. Remarkably, the employee also stored sensitive personal information on the key, including passport applications for his two children and a list of his login credentials and passwords. The key was not password protected and not marked in any way that would identify it as belonging to the employee.

The employee lost the key in the workplace. The employer found it. An HR employee inserted they key in her computer to read its contents. She identified the key as possibly belonging to the employee. She gave the key to the employee’s manager, who inserted it in his computer on several occasions. The manager identified that the key contained confidential and sensitive information belonging to the employer. The manager then ordered a forensic investigation. The investigation led to the discovery of a draft of an e-mail that disparaged the manager and had earlier been distributed from an anonymous e-mail account.

The GSB held that the employee had a reasonable expectation of privacy – one so limited as not to be as “pronounced” as the expectation recognized in R v Cole. The GSB also held, however, that the employer acted with lawful authority and reasonably. The reasonableness analysis contains some helpful statements for employers, most notably the following statement on the examination of “mixed-use receptacles” (my words):

The Association argues that the search conducted by Mr. Tee was “speculative” and constituted “rummaging around” on the USB key. It asserts that if Mr. Tee had been interested in finding files which might contain government data, he would have or should have searched directories which appeared to be work related, such as EPS, TPAS or CR. I do not find this a persuasive argument. As noted in R. v. Vu, in discussing whether search warrants issued in relation to computers should set out detailed conditions under which the search might be carried out, such an approach does not reflect the reality of computers: see paras. 57 and 58. Given the ease with which files can be misfiled or hidden on a computer, it is difficult to predict where a file relevant to an inquiry will be found. It may be filed within a directory bearing a related name, but if the intention is in fact to hide the file it is unlikely that it will be. Further, the type of file, as identified by the filename extension, is not a guarantee of contents. A photograph, for example can be embedded in a Word document. Provided that the Employer had reasonable cause to view the contents of the USB key in the first place (as I have found there was in this case), an employee who uses the same key for both personal and work related purposes creates and thereby assumes the risk that some of their personal documents may be viewed in the course of an otherwise legitimate search by the employer for work related files or documents.

I learned about this case shortly before it was decided and remarked that it was quite bizarre. I couldn’t fathom why anyone would be so utterly irresponsible to store such sensitive information on a USB key. This is one reason why I’m critical of this decision, which treats this employee’s careless information handling practice as something worthy of protection. The other reason I’m critical of this decision is that it suggests the expectation of privacy recognized in Cole is higher than contemplated by the Supreme Court of Canada – which remarked that Richard Cole’s expectation of privacy was not “entirely eliminated” by the operational realities of the workplace. Not all of our dealings with information demand privacy protection, and in my view we need to make the reasonable expectation of privacy threshold a real, meaningful threshold so management can exercise its rights without unwarranted scrutiny and litigation.

I also should say that it’s very bad to stick USB keys found lying around (even in the workplace) into work computers (or home computers), at least without being very careful about the malware risk. That’s another reason why USB keys are evil.

Association of Management, Administrative and Professional Crown Employees of Ontario (Bhattacharya) v Ontario (Government and Consumer Services), 2016 CanLII 17002 (ON GSB).