In a recent Alberta arbitration award (PDF), the
arbitrator awarded damages to employees for a breach of their
privacy rights, in the amount of $1,250 each.
The grievance arose after the province of Alberta conducted
background credit checks, without consent, on 26 government
employees. The employees worked in an area, maintenance
enforcement, that gave them discretion in handling funds on
behalf of the Province. The Province had been investigating
the passing of fraudulent cheques in the maintenance enforcement
program. Nonetheless, the Province admitted that the
investigator's conduct in ordering the credit checks without
consent breached the employees' rights under Alberta's
Freedom of Information and Protection of Privacy
Act. The Province also wrote apology letters to each of
After the employees became aware that the background credit
checks had been conducted, a complaint was made to the Alberta
Information and Privacy Commissioner. That
office conducted its own investigation, finding that the
credit checks were unauthorized and in contravention of the privacy
legislation. The investigator also concluded that reasonable
steps had been taken to prevent a recurrence, and decided not to
recommend a formal inquiry.
In the arbitration hearing the Union argued on the basis of the
recent Ontario Court of Appeal decision, Jones v. Tsige, that the arbitrator should
take into account the right to be free from intrusion upon a
person's seclusion or their private affairs. The
arbitrator applied Jones, and considered:
the nature of the wrongful act,
the effect on the employees, and
the conduct of the parties both before and after the wrong,
including any apology or offer of amends made by the offending
The Union also relied on the Federal Court decision of Nammo v. Trans Union of
Canada (PDF), where the Federal Court had ordered
damages to be paid to Mr. Nammo. In that case, Trans Union had
reported wrong information about Mr. Nammo's credit history to
a bank from which Mr. Nammo was attempting to obtain a business
The arbitrator in the Alberta case found that a modest
award of damages to each employee was appropriate. Damages
were set at $1,250 per employee. The Province's
"clear and unrestrained admission of error" and its
apology letter were found to mitigate the employees' concerns
and likely lessened the damages that otherwise might have been
awarded. But the employees were still entitled to monetary
compensation for having their individual privacy rights invaded
through the unjustified search of their credit records.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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