The Supreme Court of Canada recently ruled in Elizabeth Bernard v Attorney General of Canada et al.1 that a union's representational duties to employees require that the union not be deprived of information in the employer's hands that could assist in fulfilling these obligations.
Elizabeth Bernard (Bernard) is a federal public servant who objected to her employer providing her home contact information to the union. Bernard declined to join the union and argued that the employer's provision of her home contact information to the union violated her freedom not to associate under section 2(d) of the Canadian Charter of Rights and Freedoms (Charter) and it constituted an illegal search and seizure prohibited by section 8 of the Charter.
The union took the position that it needed employees' home mailing addresses and telephone numbers to carry out its representational duties.
The Public Service Labour Relations Board (Board) ordered Bernard's home contact information be provided to the union, subject to certain conditions relating to the security and privacy of the information. The Board found there was no breach of the Privacy Act2 in disclosing home telephone numbers and addresses to bargaining agents because that disclosure was consistent with the purpose for which the information was obtained, and thus a "consistent use" of the information pursuant to section 8(2)(a) of the Privacy Act.
The Board refused to consider Bernard's Charter arguments, and the Federal Court of Appeal dismissed Bernard's application for judicial review on the basis that the Board's decision was reasonable.
Decision of the Supreme Court of Canada
Bernard continued her claim up to the Supreme Court of Canada, where her arguments and appeal were dismissed. The Supreme Court of Canada held that in the labour relations context in which Bernard's privacy complaints arose, the Board's decision was reasonable and justified.
A key point was that a union has the exclusive right to bargain on behalf of all employees in a given bargaining unit, including those employees who choose not to become members of the union. The union is the exclusive agent for those employees with respect to their rights under the collective agreement, and the union must represent those employees fairly and in good faith. While an employee is free not to join the union, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes employees.
Furthermore, because the union owes legal obligations to all employees — whether or not they are members of the union — and may have to communicate with them quickly, the union should not be deprived of information that is in the hands of the employer and could assist in fulfilling its obligations.
Within this context, the Supreme Court noted that work contact information is insufficient to enable the union to carry out its representational duties for a number of reasons:
The union's need to be able to communicate with employees in the bargaining unit cannot be satisfied by reliance on the employer's facilities. As the Board observed, the employer can control the means of workplace communication, can implement policies that restrict all workplace communications, including with the union, and can monitor communications. Moreover, the union may have representational duties to employees whom it cannot contact at work, such as employees who are on leave, or who are not at work because of a labour dispute.3
Bernard's privacy concerns were addressed, and the Supreme Court found that because the union needed employee home contact information to represent the interests of employees, this was considered a use consistent with the purpose for which the government employer collected the information, namely, to contact employees about the terms and conditions of their employment. The information collected by the employer was for the appropriate administration of the employment relationship, which is consistent with the union's intended use of the contact information.
The Supreme Court swiftly dismissed Bernard's Charter arguments deeming them to have, quite simply, "no merit." It was noted that even if the Federal Court of Appeal erred with respect to the scope of the Board's reconsideration (as alleged by Bernard given the Board's refusal to consider her Charter arguments), Bernard's section 2(d) and section 8 Charter arguments were "clearly bound to fail, whenever and wherever asserted."4
Ultimately, the compelled disclosure of home contact information to allow a union to carry out its representational obligations to all bargaining unit members did not engage Bernard's freedom not to associate with the union. The Supreme Court found its decision in Lavigne v Ontario Public Service Employees Union5 to be determinative and in that case, it was held that the payment of dues by employees who opted not to become union members did not amount to unjustified compelled association under section 2(d) of the Charter. Thus, the Supreme Court reaffirmed the principle that section 2(d) is not a constitutional right to isolation.
Canada's unions will undoubtedly celebrate this judgment as confirmation by Canada's highest court of the importance of a union's ability to carry out its representational duties. The decision makes it clear that employers must cooperate with unions and provide them with the home contact information of bargaining unit employees, whether they are union members or not.
1. 2014 CSC 13 [Bernard v Canada (Attorney
2. R.S.C., 1985, c. P-21.
3. Bernard v Canada (Attorney General), supra note 1 at para 27.
4. Bernard v Canada (Attorney General), supra note 1 at para 36.
5.  2 S.C.R. 211 [Lavigne].