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.

Court dismisses application for information about business partner’s employees

On April 2nd, the Ontario Superior Court of Justice dismissed an application for the disclosure of detailed employee payroll information from an employer to its partner in a joint venture.

The partner was partially responsible for the employer’s wage bill and relied on its right to inspect records under the joint venture agreement. The employer argued that, despite the agreement, it could not disclose employee personal information without violating PIPEDA. As an alternative, the employer offered to have an audit conducted and share the results. The partner felt this was insufficient.

Justice Perell held that he had no power to make an order that would relieve the parties from the PIPEDA consent requirement, stating “s. 7(3)(c) of PIPEDA does not provide a free-standing jurisdiction to grant exemptions.” He dismissed the application without prejudice to the filing of a new application based on the “activation” of another PIPEDA exemption.

Mountain Province Diamonds Inc v De Beers Canada Inc, 2014 ONSC 2026 (CanLII).

Case Report – Publication of teaching evaluation data lawful

Arbitrator Brent held that the University of Windsor did not violate its faculty collective agreement or the Ontario Freedom of Information and Protection of Privacy Act by publishing teaching evaluation scores on a secure network for access by students and other members of the university community.

She made three findings. First, she held that the change in practice did not breach a frozen practices provision in the collective agreement because the publication condition (freedom from publication, as was argued) was not fundamental to the employment relationship. Second, she held that the express collective agreement restriction on disclosure of faculty personal information did not apply because the information disclosed was not “personal information” under the collective agreement. In reaching this finding, she relied on permissive collective agreement language that referred to the use of teacher evaluation data to construe the term “personal information.” Finally, she held that FIPPA did not apply based on its employment-related records exclusion and the fact that the data was used in the University’s promotion, tenure and renewal process. In rejecting the Association’s argument that student use of the data brought the records under the auspices of the Act, she said:

To argue that it ceases to become a “labour relations” or “employment-related” matter once it is made available to the students would in my view have the effect of excluding SET from FIPPA when it is used for employment related purposes but then including it when it is used to provide information to students. Such a result would be contrary to the Court of Appeal’s decision that once it is determined that FIPPA does not apply to certain material, then that material is exempt from FIPPA for ever.

University of Windsor and University of Windsor Faculty Association (Re) (19 February 2007, Brent).