Case Report – Court upholds arbitrator order that stops call centre from recording calls… with reservations

Today, the Supreme Court of Nova Scotia upheld a labour arbitrator’s order that required the Halifax Regional Municipality to cease and desist from recording calls to its call centre for quality monitoring, coaching and dispute resolution purposes.

In resolving the employer’s application for judicial review, Wright J. displayed a remarkably honest application of the “reasonableness” standard of review by disagreeing with the arbitrator’s weighing of management versus employee interests but nonetheless upholding his decision as reasonable.

Though it did not affect the outcome of the application, Wright J.’s more legally significant finding was on whether the employee voice recordings at issue were protected as “personal information” under the applicable privacy legislation. He stressed that the recordings captured non-sensitive employee work product and, in the context, this feature of the recordings was more significant than anything personal that the characteristics of an employee’s voice might reveal (such as age or race).

It cannot be over emphasized that the recording of calls made to the call centre agents on the Primary Line is of a non-personal nature. The call centre agents answer inquires from the public about various municipal matters. There is no component of personal information in that. It is not recorded information about an identifiable individual within the meaning of s.461(f). Rather, the content of the calls, as earlier noted, is about such routine inquires as transit service times, tax bills, by-laws, parking information and municipal services. In my view, the question of whether voice recording in the fact situation at hand constitutes “personal information” cannot be decided irrespective of the content of those calls. Here, the content of those calls is undoubtedly of a non-personal nature made in the course of the performance of the job duties of these employees.

Halifax (Regional Municipality) v. Nova Scotia Union of Public and Private Employees, Local 13, 2009 NSSC 283.

Case Report – LSAC allowed to substitute submission of photos for fingerprints

You may have heard about the federal Privacy Commissioner’s May 29th report on the Law School Admission Council’s practice of collecting fingerprints from LSAT test takers.  Her office recommended that LSAC cease the practice but allowed it to substitute a practice of collecting test takers’ photographs.

There are some notable findings in the report.  Namely:

  • the OPC rejected LSAC’s argument that it was engaged in educational rather than commercial activity, finding that its core activities provided a service to its member law schools;
  • the OPC held that fingerprints are more sensitive than voice prints and less sensitive than one’s photographic image; and
  • the OPC made another comment de-emphasizing the significance of cross-border transfers of personal information.

The report also highlights the difficulty of sustaining a collection practice based on deterrence alone.  The case for deterrence is often logically compelling, but proving that collecting information effectively deters misconduct is hard.  (For more on this theme, see the IPC/Ontario’s recent surveillance report.)  LSAC had not once used a fingerprint to identify whether fraudulent test since it started collecting them in the mid-1970, so it was difficult for the LSAC to justify its practice on any ground other than deterrence.  It also claimed that it simply wanted to assure its members that it was doing all it could to ensure the security of the test.  The OPC seemed to accept this purpose as legitimate, but not compelling enough to justify collection of fingerprints. The LSAC proposed collecting photographs as a step-down solution mid-way through the investigation, and the OPC held that this alternative would achieve the appropriate balance because images are “marginally” less sensitive.

Report of Findings:  Law School Admission Council Investigation (29 May 2008, OPC).