Unions may take heart in two rulings recently handed down by the Supreme Court of Canada recognizing that the protections afforded in respect of fundamental rights and personal information may not unduly restrict a union in the exercise of its activities.
Indeed, in November 2013, in an Alberta matter,1 the Supreme Court held that the Alberta privacy statute could not prohibit a union from filming, and taking photographs of, strikebreakers. The provisions of the statute struck down by the Supreme Court provided that an organization could not collect, use or disclose personal information without the consent of the interested parties. By recognizing the importance of protecting freedom of expression in a labour dispute, the Supreme Court held that the right of a union to express itself, including by publicly denouncing strikebreakers, should take precedence over the purposes sought to be achieved by the legislator in the matter of protection of privacy.
In the same vein, the Supreme Court of Canada has just held in the matter of Bernard v. Canada (Attorney General), 2014 SCC 13, a case involving the federal public service, that an employer was required to disclose to the union the home contact information of all the employees that were members of its bargaining unit, in order to enable it to communicate with the employees quickly and efficiently. This matter contains an interesting analysis of the protection of personal information in the context of labour relations.
Elizabeth Bernard was a federal public service employee and included in the bargaining unit. However, she was not a union member. In accordance with the "Rand Formula", she paid union dues, was covered by the benefits of the collective agreement and entitled to representation by the union, just like all the other employees in the bargaining unit.
The dispute originated from the refusal by the employer to provide the union with the home contact information of bargaining unit members. After a complaint for unfair labour practices was filed, the parties agreed that the employer would on a quarterly basis provide the union with an updated list of the home mailing addresses and home telephone numbers of members of the bargaining unit, on the condition that the union undertook to ensure the security and privacy of the information, to provide it only to the appropriate union officials and not to use the information for any purpose other than union activities. In addition, the parties undertook to notify the employees of the nature of the information that would be disclosed to the union.
This agreement was approved by the Public Service Labour Relations Board (hereinafter the "Board").
When she found out that her personal information has been provided to the union, Ms. Bernard initiated legal proceedings to have the decision of the Board voided. According to her, the disclosure by the employer of her personal information breached her right to privacy and her freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms (hereinafter the "Charter"), as, she argued, such freedom implied the right not to associate with the union. Finally, Ms. Bernard alleged that the disclosure of her personal information amounted to a search and seizure in breach of section 8 of the Charter.
After numerous legal proceedings, the Board found that disclosure of personal information did not breach her fundamental rights. The Board also added two additional conditions to the disclosure of information, namely that it was to be provided to the union only on an encrypted or password-protected basis, and that expired home contact information was to be appropriately disposed of after updated information was provided.
The Supreme Court dismissed the arguments by Ms. Bernard that disclosure of her personal information to the union breached her fundamental rights.
First of all, the Supreme Court recalled the context in which the employer disclosed the personal information. The union is the exclusive representative of all the members of its bargaining unit. While an employee who is a member of the bargaining unit is free not to join the union, according to the "Rand Formula", such employee cannot opt out from the collective labour relations scheme. He or she must pay union dues and may not choose not to be represented by the union.
On the issue of the disclosure of personal information, the Court shared the Board's opinion that the union must have access to the personal contact information of the employees in order to be able to fully exercise its representation duties incumbent on it by law. As far as collective labour relations are concerned, such exchanges cannot be limited to the workplace since the union must be able to fully exercise its representation duty. In this respect, the Supreme Court reiterated the principles set out by the Board in order to justify such disclosure of the employees' personal contact information to the union:
(i) it is not appropriate for a bargaining agent to use employer facilities for its business;
(ii) workplace communications from bargaining agents must be vetted by the employer before posting;
(iii) there is no expectation of privacy in electronic communications at the workplace; and
(iv) the union must be able to communicate with employees quickly and effectively, particularly when they are dispersed.2
The Court then pointed out the tripartite relationship between the employee, the union and the employer. In this context, it is normal that information would be shared to a certain extent. However, due to such tripartite nature, disclosure of personal information cannot be equated with disclosure of personal information to the public. The Supreme Court, therefore, stated that there was some disclosure duty upon the employer:
To the extent that the employer has information which is of value to the union in representing employees, the union is entitled to it.3
The Supreme Court also found that the Board was well founded in holding that, by disclosing personal information to the union, the employer did not breach the Privacy Act.4 Para. 8(2)(a) of said Act reads as follows:
8. [. . .]
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose;
The Supreme Court held that disclosure by the employer of personal information to the union represented a "use consistent" with the purposes for which personal information was obtained, that is, the proper management the employment relationship.
Ms. Bernard's argument regarding her fundamental right not to associate with the union was also dismissed. In accordance with its prior rulings handed down on the topic, the Supreme Court reiterated its position that the right not to associate, if it exists, does not mean that an employee may withdraw from the scheme of collective labour relations in order to avoid paying union dues and refuse representation by the union.
Finally, as regards the argument based on a breach of privacy, according to the Court, there could be no question of reasonable expectation of privacy relating to the information disclosed.
Although the matter occurs in the context of the federal public service, the Supreme Court relied on general principles applicable to collective labour relations also applicable under provincial legislation, in Québec as well as in other Canadian provinces.
Thus, the Supreme Court held that the employer must disclose to the union the addresses and personal telephone numbers of the employees because it requires such information to exercise its duty of representation owed to all the employees of the bargaining unit. By way of example, the Court argued that the union must be able to contact the employees to notify them of the conduct of a strike vote or a vote on the latest management proposals.
The Court, in a relatively succinct manner, dismissed the argument regarding privacy. In this respect, its finding that Ms. Bernard could not have an expectation of privacy with respect to her personal contact information may appear surprising. That said, the steps taken in this case to ensure that the information of the employees would remain protected by the union and would be used for the sole purpose of labour relations, in our opinion, provide an adequate protection to those employees who are concerned about the disclosure of their information in the course of collective relations. These protective measures might be used as benchmarks for the courts called upon to rule on a similar issue in other provinces. Thus, it should be recalled that personal contact information of the employees must be disclosed to the union, among others, on the following terms:
- Encrypted and password-protected transmission;
- Disclosure only to authorized union officials;
- Prohibition against using information for purposes other than to exercise its representation duty;
- Duty to destroy obsolete information.
As regards the application of privacy laws, the Supreme Court acknowledged that the statute applicable to the federal public service authorized such a disclosure of personal contract information since it was a use consistent with the purposes for which such information was obtained.
However, an issue arises as to the effect that this ruling will have in those provinces where the applicable privacy statute does not appear to authorize such disclosure of information by the employer without the employee's consent.
In particular, this is the case of An Act Respecting the Protection of Personal Information in the Private Sector5applicable in Québec. Thus, upon reading of such statute, it appears that an employer in a private sector in Québec may not disclose to a union personal information without having first satisfied a number of strict conditions.6
The employee's consent to the disclosure of his or her information to the union might also be required in accordance under the Personal Information Protection and Electronic Documents Act,7 a statute applicable to federal works, undertakings or businesses.8
Consequently, some legislative amendments may have to be made in order to comply with the principles established by the Supreme Court of Canada in the matter of Bernard v. Canada.
In the meantime, there is no doubt that unions will rely on this matter to claim their right to access personal contact information of the employees. As regards labour relations, we should recall that such information may have strategic value for a union, especially where a raiding campaign is imminent, and where a union may wish to contact employees outside the workplace. For those employees who object to the disclosure by their employer of their personal contact information to the union, it will certainly become more difficult to continue to do so now that the judgment in Bernard v. Canada has been handed down.
1 Alberta v. U.F.C.W., 2013 SCC 62.
2 Bernard v. Canada (Attorney General), 2014 SCC 13, para. 25.
3 Ibid. para. 26.
4 R.C.S. 1985, c. P 21.
5 C.Q.L.R., c. P-39.1.
6 See sections 22 and 23 of An Act respecting the Protection of personal information in the private sector. See also: Centre financier aux entreprises Desjardins Grandes-Seigneuries—Vallée-des-Tisserands and Canadian Office and Professional Employees' Union, Local 575, SOQUIJ AZ-50507770, D.T.E. 2008T-715,  R.J.D.T. 1349.
7 Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.
8 On this topic, see: Éloïse Gratton and Lyndsay Wasser, Privacy in the Workplace, CCH, 3rd Edition, pp. 346-347.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2014