Elizabeth Bernard is an employee of the Canada Revenue Agency.
She objected to the disclosure of her home contact details by her
employer as requested by the union. Ms. Bernard took the position
that disclosure of her home contact details breached her privacy
rights and her Charter right not to associate with the
union (she is not a member of the union, but is represented by the
union in the collective bargaining context). The Public Service
Labour Relations Board concluded that only being able to contact
employees through their workplace did not allow the union to
represent employees effectively. It also found that the disclosure
of home contact details was consistent with the purpose for which
the information had been obtained under section 8(2)(a) of the
Privacy Act, which is one of the exceptions to the ban of
disclosure of government held information. The Board declined
jurisdiction to consider the Charter arguments.
On judicial review, the Federal Court of Appeal upheld the
Board's conclusions. The matter was then appealed to the
Supreme Court of Canada, which handed down its decision on February 7, 2014.
The Court agreed that the union needed to be able to communicate
with all employees quickly and effectively and the employer should
co-operate with the union. The union also needs to be able to
contact employees who are on leave, or who are not at work because
of a labour dispute. It held that it is not appropriate for the
union to be limited to the use of communication channels controlled
by the employer.
In considering the "consistent use" exception
described above, the Court held that the information collected by
the employer was for the appropriate administration of the
employment relationship. This purpose is consistent with the
union's intended use of the contact information.
The majority of the Court also held that the Board was correct
to limit its mandate to the alleged infringement of the Privacy
Act and not to consider the Charter arguments.
Implications for Employers
Employers whose employees are represented by a union are under a
duty to provide the union with the contact details for all
employees in order that the agent can fulfill its statutory
obligations to communicate quickly and effectively with the
This rule applies to all employees within the bargaining unit.
The union is entitled to communicate with its constituent members
by means other than those controlled by the employer.
In British Columbia, the Labour Relations Board has addressed
this issue and considered analogous privacy rights affecting
provincially regulated employers under the Personal Information
and Protection Act ("PIPA") and the Freedom of
Information and Protection of Privacy Act ("FOIPPA")
and has arrived at conclusions similar to those of the Court in
The rule in BC is that unions may collect and employers may
disclose personal information about an individual without that
individual's consent if "the disclosure is required or
authorized by law."
The BC Labour Relations Board has stated that unions have a
statutory duty to communicate with the employees they represent.
Accordingly, employers may not refuse to disclose information to a
union in circumstances without valid reasons. The Board has
authorized release of names, addresses, and even wage rates and
benefits to unions to enable them to prepare for collective
The latest decision from the Supreme Court of Canada is
consistent with the approach in BC where the Board has stated that
refusal by an employer to disclose such information may constitute
violations of Section 6(1) of the BC Labour Relations Code.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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