Arbitrator awards privacy damages for implying an employee suffered from mental distress

On December 4th, Arbitrator Andrew Sims ordered the Edmonton Police Service to pay a grievor $5,000 in damages for breach of privacy.

The case arises out of the Service’s handling of an intense interpersonal conflict between the grievor, a police detective, and his staff sergeant. The conflict led to a formal review in which the reviewing investigator recommended the grievor’s transfer to a new unit due to interpersonal problems, the responsibility for which was borne by the grievor and others. Before the Service addressed the recommendation, however, the grievor and his staff sergeant had an altercation.

The altercation invited an immediate decision to pursue the recommended transfer. Although the formal review had raised no concerns about the grievor’s mental health, when superintendent met with the grievor to advise him of the transfer she became concerned about his mental health on account of his reaction.

The superintendent raised the need for a psychological assessment, which the grievor undertook grudgingly but voluntarily. While this assessment was pending the superintendent met with the department and implied that the grievor was mentally unwell, in essence conveying the same opinion that was the basis for the pending assessment. In the end, a psychologist determined the grievor was “psychologically intact and functional.”

Based on the following analysis, Arbitrator Sims ordered the Service to pay $5,000 in damages:

Had the Employer described to a work group a physician’s diagnosis of a co-worker, that it had obtained in its role as employer, disclosure would clearly be a breach of the employee’s right to privacy of their personal medical information.  To anticipate a diagnosis, based only on personal observations, however genuine the concerns,and to discuss that in public, is just as serious a breach of privacy.  Arrangements were underway to get the grievor assessed.  Implying anything as to his state of health pending that assessment was inappropriate and unnecessary. The decision was made to transfer the grievor based on the problems he was having with his Staff Sergeant and the Unit Review.  This was decided before the health concerns arose from the interview.  Given that, there was really no need to go into whether the grievor had health issues at all. The emphasis on the grievors “H.R. issues” had the effect of adding undue emphasis to the suggestion that the broader issues in the unit, which were serious in themselves, were due to the grievor’s health issues.  That too was unjustified given the more balanced assessment in the unit review itself.  The grievor’s reputation amongst his peers, his need and ability to interact with them in future, and his sense of employment security were all impacted by the excessive commentary during this meeting.  While I accept that the comments were made out of genuine (although to a significant degree unfounded) concern, they amounted to a breach of privacy and caused harm to the grievor’s privacy interests. Police officers are particularly dependent upon their reputation amongst their peers.  Any suggestion of mental problems or unreliability can seriously hurt their working relationships and their careers.  I find these breaches of privacy sufficiently serious to justify financial compensation which, based on a review of the authorities discussed above, I award at $5,000.

Edmonton Police Service v Edmonton Police Association, 2014 CanLII 73072 (AB GAA).

A broader implication of the SCC’s decision in Fearon

The Supreme Court of Canada issued R v Fearon on December 11th. A 4-3 majority held that the police can search a cell phone incident to arrest without a warrant but subject to various limitations prescribed by the Court. One always must be careful in drawing too much from the Court’s handling of a specific issue in a specific context, but the dialogue between the majority and minority about the mitigating effect of a computer inspection protocol is notable for organizations.

The majority allows warrantless searches, in part, based on a finding that the privacy impact of a cell phone search incident to arrest can be meaningfully mitigated by the application of a “tailored” inspection. Justice Cromwell explains:

First, the scope of the search must be tailored to the purpose for which it may lawfully be conducted. In other words, it is not enough that a cell phone search in general terms is truly incidental to the arrest.  Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, even when a cell phone search is permitted because it is truly incidental to the arrest, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted. But these are not rules, and other searches may in some circumstances be justified. The test is whether the nature and extent of the search are tailored to the purpose for which the search may lawfully be conducted. To paraphrase Caslake, the police must be able to explain, within the permitted purposes, what they searched and why: see para. 25.

This approach responds to the privacy concerns posed by the virtually infinite storage capacity of cell phones by, in general, excluding resort to that capacity in a search incident to arrest.  It would also provide these protections while preserving the ability of the police to have resort to basic cell phone data where this serves the purposes for which searches incident to arrest are permitted.

Given the Crown bears the onus of establishing a reasonable search incident to arrest, the majority makes clear that police must take “detailed notes” of their inspection process.

For the minority, the privacy interest in a cell phone is too great to permit any warantless intrusion. Justice Karakatsanis also calls the majority’s reliance on the mitigating effect of a tailored inspection protocol “complicated,” “impractical” and inviting of “after-the-fact litigation.”

Organizations have been reckoning with an expectation of privacy on workplace computers since the Supreme Court of Canada’s 2012 finding in R v Cole. I’ve argued elsewhere that, notwithstanding Cole, the standard for employer searches will likely remain reasonably permissive. The reasoning in Fearon can be used by employers to argue for a permissive search standard. Employers should be careful, however, to (1) document the purpose of their inspections and (2) follow a logical, documented inspection process. Justice Karakatsanis is correct; litigation about the manner in which a computer inspection has been conducted is too easy to foresee.

 R v Fearon, 2014 SCC 77 (CanLII).

 

Lancaster House panel on monitoring job performance and productivity

I spoke today at a Lancaster House labour arbitration conference on a good panel with Arbitrator Paul Craven and union counsel Samantha Lamb, with Sean McGee of Nelligan O’Brien Payne as our chair.

I quite like this Cargill Foods case by Arbitrator Craven, in which he distinguishes between omnipresent surveillance (my words) and other continual collections of personal information that are more benign. His comments on Cargill today highlighted to me that there is no proscription against collecting personal information for the purpose of improving job performance (as is often suggested) but quite a real proscription against collecting personal information in a manner that is highly invasive and a substitute for in-person supervision.

I’ve put my speaking points below. They include some ideas about the BC OPIC’s recent Kone case, a case which further illustrates this point.

SCC alcohol testing decision invites peace in the valley by giving a boost to arbitral precedent

The Supreme Court of Canada’s June 14th decision in Irving Oil represents a remarkable elevation of arbitral precedent to near binding law, contributing clarity on an issue that has been heavily litigated by employers and unions for years.

The ratio, at paragraph 31, is that an employer with a safety-sensitive workplace needs proof of “enhanced safety risks” (such as a workplace substance abuse problem) to implement universal random substance testing. Although the judgment was split, both majority and minority agree that this is the evidentiary burden endorsed in “remarkably consistent arbitral jurisprudence.”

The Supreme Court of Canada wanted to deliver “peace in the valley” without causing too much upset in its established deference-favouring principles of judicial review.

Upset is exactly what the Court of Appeal of New Brunswick had created by issuing an unprecedented standard of review decision in its handling of the case. The lower court applied the correctness standard of review because labour arbitrators had not been able to reach a consensus. Justice Robertson said:

In the present case, it is evident that the arbitral jurisprudence is not consistent when it comes to providing an answer to the central question raised on this appeal. Hence, it falls on this Court to provide a definitive answer so far as New Brunswick is concerned.

In response, the Supreme Court of Canada held that the reasonableness standard applies to the interpretation of a collective agreement based on its established jurisprudence. It did not mention Justice Robertson’s novel approach to addressing an inconsistency in arbitral jurisprudence nor did it explain how it reached the opposite conclusion about the existence of arbitral consensus. Did it find the jurisprudence to be consistent as step one in its aim to promote clarity in the law?

Step two involves the Court’s treatment of arbitral precedent in assessing the reasonableness of Arbitrator Veniot’s decision. The Court unanimously held that the reasonableness of a labour arbitrator’s decision will be judged in light of established arbitral consensus.The majority felt that Arbitrator Veniot’s decision was consistent with the consensus, which supported its reasonableness. The minority felt that Arbitrator Veniot’s decision was inconsistent with the consensus, an error given he did not provide a rationale for his departure: “In the absence of a reasonable explanation for its novel test, the board must be taken as having misapplied the existing test, which in the circumstances of this case rendered its decision unreasonable.” This treatment of arbitral precedent as so central is novel and significant, though both the majority and minority specified that precedent was particularly important “in this case,” presumably given the deemed “remarkably consistent arbitral jurisprudence.”

Arbitrators are technically free to reason their way around the ratio of Irving Oil, but why would they? For practical purposes, the Court has delivered near binding precedent.

Of course, the non-unionized employees are much more vulnerable, many protected only by anti-discrimination legislation and a theory for finding discrimination espoused in the Court of Appeal for Ontario’s Entrop decision that is becoming less and less consistent with the SCC-defined meaning of discrimination. In light of the Supreme Court of Canada’s gymnastics in Irving Oil, is there any doubt that the courts will find a path, however tortured, that leaves non-union employees with the same protection?

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 (CanLII).

Facebook’s Graph Search: New Privacy Concerns?

According to a CBC News article (here), early reviews of Facebook’s new Graph Search feature are raising privacy concerns.  The search feature appears to be eerily effective in mining Facebook users’ information in responding to search queries.

For employers who may be considering using social media to verify information about current or prospective employees, the depth of information revealed by Graph Search highlights the risk that obtaining information through social media could amount to an invasion of privacy, or conflict with human rights laws (see the Ontario Human Rights Commission’s policy on using Facebook information).  Employers should tread carefully before using social media to obtain information about current or prospective employees, since the resulting information (even if obtained inadvertently) could create unanticipated liabilities.

The other side of the balance: employer interests, work systems and R v Cole

Here’s a link to a essay that describes the impact of the Supreme Court of Canada’s in R v Cole – the work system privacy case. I appeared with my colleague Joseph Cohen-Lyons on behalf of the Canadian Association of Counsel to Employers, and the paper represents the intellectual end point of a great experience. Whether you agree with the position or not, I hope it sparks some ideas!

Administrators Have No Place in the Bedrooms of Plan Members

When a pension plan member divorces his or her spouse, often the accrued pension benefits are the single largest family asset.  H0w a pension benefit is divided varies by jurisdiction, with some jurisdictions entitling the former spouse to all of the benefits accrued during the period of marriage.  What’s more is that some jurisdictions allow former spouses to “unlock” the divided interest prior to the member’s retirement, rather than requiring the monies to continue to be used only for pension benefits.

But what happens when a couple decides they want to access the accrued pension benefits and are willing to go through with a divorce to get access?  What if the couple just happens to reconcile shortly after the benefits have been transferred?  Can an administrator investigate and question the validity of the divorce?  Apparently not.

In 2009, Continental Airlines filed a lawsuit against nine of its pilots claiming that the pilots filed fake divorces in order to receive early distribution of their pension benefits.  Many of the pilots continued to cohabitate with their ex-spouses, and in many instances they did not inform any of their family or friends that they had gotten a divorce.  Continental sought restitution to the pension plan of the benefits that were distributed to the spouses on the basis that the divorces were “shams”.  The trial court dismissed Continental’s claim, holding that Continental did not have the right to investigate employees’ divorces in order to decide whether those divorces were authentic.

The 5th U.S. Circuit Court of Appeals recently dismissed Continental’s appeal of the lower court decision.  The Court of Appeal agreed with the lower court that the relevant legislation (ERISA) does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.  On the contrary, the legislation requires benefits be divided in satisfaction of a qualifying marriage breakdown order that has met the necessary prescribed criteria, of which the divorce being done in good faith is not a factor.  Therefore, the administrator could not interfere by investigating the bona fides of the divorces.  Only where a court finds that a divorce is, in fact, a sham could an administrator refuse to pay out the divided pension.

Counsel for the pilots are championing the decision as a victory for employee privacy rights, given the restrictions on administrator’s abilities to investigate plan members’ family relationships.

Social Media Use by Teachers and Students: OCT Recommends Limits

The Ontario College of Teachers has recently issued a professional advisory recommending strict limits on interactions between teachers and students through social media.  The advisory emphasizes that teachers are professionals, who are held to high standards of conduct, in both their professional and private lives.  Since inappropriate electronic communications with students – including those outside of school hours and unrelated to school matters – can lead to teacher discipline, and even criminal charges, the OCT recommends that teachers take certain precautions in their electronic communications, particularly through social media.  Among other guidelines, the advisory recommends that teachers:

  • not be “friends” with students on Facebook, refrain from “following” students on Twitter, and otherwise avoid personal connections with students on social media;
  • notify parents before using social media for classroom purposes; and
  • use appropriate privacy settings when using social media, to ensure that students may not access personal or inappropriate postings.

The recommendations are not surprising, given the high standards of conduct expected of teachers, and the perils teachers may face from inappropriate use of electronic media – as illustrated by the recent Ontario Court of Appeal decision in R. v. Cole.

Although specific to the educational context, the OCT’s professional advisory reflects the importance of addressing the impact which social media, and electronic media in general, can have in various settings.  Employers should consider whether the dynamics of their workplace justify guidelines or policies on the appropriate use by employees of social media, for example, in their interactions with each other or with customers, suppliers or other parties.

A link to the OCT’s professional advisory is here, and a related CBC article is here.

Case Report – Receipt of unsolicited e-mail not a “collection” under privacy statute

On May 14th, the Information and Privacy Commissioner/Ontario dismissed a privacy complaint by a university professor who alleged his university had improperly collected and used his personal e-mails for disciplinary purposes.

The complainant sent e-mails about a weekly event series from his personal account to a list of over 1000 individuals. The emails apparently contained statements that encouraged recipients to “send to friends.” The e-mails were received by one or more University administrators, who forwarded them to other administrators for “operational purposes.” The University ultimately imposed discipline on the complainant based on the content of the e-mails.

The investigator held that the University did not collect the unsolicited e-mails. He reasoned that the use of the terms “obtained and compiled” elsewhere in the Act indicate that the legislature contemplated means of coming into custody or control of personal information other than collection. He also reasoned that the requirement to give notice of collection suggests that collection requires something more active than demonstrated by the University.

Regarding the allegation of improper use, the Investigator held that the e-mails were used by the University for a purpose consistent with the purpose for which they were obtained or compiled:

In this case, the e-mails were obtained by the University on an unsolicited basis. In order to administer its operations effectively, a University is required to review and address correspondence, including e-mails that are received on an unsolicited basis. Based on the information before me, the University compiled the e-mails for the purpose of addressing issues related to the operation of the University. Accordingly, I am satisfied that the University obtained or compiled the e-mails for the purpose of the effective administration of the University.

The finding about unsolicited receipt of personal information is based on an interpretation of FIPPA, but is of relatively broad significance given the parts of FIPPA relied upon by the investigator are neither technical nor unique. The decision also raises a notable jurisdictional issue about records that are obtained for a non-employment related purpose and subsequently used for an employment-related purpose and FIPPA’s employment-related records exclusion.

University of Ottawa (Re), 2010 CanLII 30187 (ON I.P.C.)

Desert island privacy cases for employment lawyers

I presented at the Law Society of Upper Canada’s “Six Minute Employment Lawyer” conference today. It was a very good honour to be invited to this successful and long-running program. Thanks to the LSUC and also to Co-Chairs Christine Thomlinson (see her firm’s blog here) and Malcom McKillop.

I managed to catch a few presentations from other more senior members of our bar. Other blawgers were also well-represented. It was nice to see Michael Fitzgibbon, Stuart Rudner and Omar HaRedeye, albeit briefly. Omar, if you have a Twitter stream of the event, please link it in a comment below.

I did a presentation called “Desert island cases for employment lawyers.” If you like case lists, check out the slides below. Slides with notes are over at SlideShare.