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.

Key issues in workplace privacy presentation

I spent most of the day today at the Canadian Institute’s Meeting Your Privacy Obligations conference. It was a very good show, and I managed to catch great presentations by Frank Work, Robin Gould-Soil (of TD Financial Group) and David Fraser. I did a “hot issues” style presentation on workplace privacy. Two thirds of the content is refined from the slides I posted yesterday, but there’s an additional part on background checks. Notes are in the slides over at Slideshare.

Social media and employee privacy presentation

I presented at Insight’s Social Media – Risks & Rewards conference this morning on two narrow issues related to employee use of social media technology and privacy – monitoring workplace systems for misuse (a favorite, as you know) and the right of an employer to control employee “off duty” publication. The audience seemed sophisticated, and I regret that I couldn’t stay. Thanks to the audience for the discussion and the organizers for the invite. Slides are below, with slides and notes over at Slideshare.

Workplace Privacy Presentation at the HRPA 20X Annual Conference and Trade Show

On January 27, 2010 I’ll be giving a presentation entitled “Everything You need to Know About Workplace Privacy” at the HRPA’s 20X Annual Conference and Trade Show.

I designed the presentation today around the following topics:

  • Employee privacy rights – the patchwork quilt
  • How to run an internet background check
  • Why and how your acceptable use policy needs to change
  • Yes, you can transfer that data to the U.S., but…
  • How to manage the risk of communicable diseases in the workplace

I’m looking forward to the opportunity to touch on these hot issues and have also left lots of time for questions. If you’re an HR professional who’s attending the conference please consider joining my session.