After doing online writing for about a year and a half now, one of my most read pieces is Employee Privacy in Canada. I also get plenty of legal inquiries by e-mail on it, and of course have to respond that I cannot provide legal advice.
It’s also a topic of interest to in-house counsel, who increasingly have to respond to managers about the checks and monitors they are allowed to use for their staff.
Perhaps then it’s no surprise that the subject was also prominently featured at the OBA 2009 Institute of Continuing Legal Education on Feb. 3, 2009 in the Corporate Counsel session on employment law.
This post is the first of three abbreviated notes from the session.
Richard J. Charney of Ogilvy Renault and a graduate of UWO Law started the session by describing the conflict between an employer’s legitimate need for information and the employee’s legitimate desire to be left alone.
Charney’s focus was on the unionized context.
- Employers should create and implement policies that assume that unionized employees have a general right to privacy, even though decisions on the subject are divided
- Legislation such as PIPEDA and PHIPA do not have a significant impact on the rights of unionized employees
- Privacy issues in the unionized workplace fall under labour arbitrators, and these are usually a better guide than privacy legislation
Does a Right to Privacy Exist?
The unionized employee’s right to privacy was considered recently in Labourers’ International Union of North America, Local 635 v. Prestressed Systems Inc. (2005), 137 L.A.C. (4th) 193. Arbitrator Michael Lynk, also Associate Dean of UWO Law, declined to admit surveillance tapes that questioned the severity of a back injury of a discharged employee on the basis of an emerging trend of unionized workers to some expectation of privacy.
However, this right can be circumvented by:
- contract between union and employer
- demonstrating an interference with privacy is necessary for legitimate business/industrial reasons
In contrast, arbitrator Bruce Welling, another professor from UWO Law, held in Canadian Timken Ltd. v. United Steelworkers of America, Local 2906 (Hutchin Grievance) that employees do not have a right to privacy in Ontario absent an express statutory or common law right. Unionized employees have an expectation of privacy, but this does not necessarily lead to a right to privacy.
There are also jurisdictional differences that affect privacy law.
The Personal Information Protection and Electronic Documents Act (PIPEDA) applies to the collection, use and disclosure of personal information in the course of commercial activity.
Charney identified two specific sections of interest:
5. (3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
4.3 Principle 3 [of the Canadian Standards Association] — Consent
The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
An employer may only collect personal information if the collection is limited to the circumstances where:
- The employee has provided consent and a reasonable person would consider it appropriate
- Circumstances for obtaining the consent of the employee is not appropriate.
Privacy rights under PIPEDA do not give rise to civil claims, unless they have gone through the Privacy Commissioner of Canada, who first investigates and provides recommendations.
However, a recent decision at the Federal Court in L’Ecuyer v. Aéroports de Montreal may limit union involvement with s. 14(1) of PIPEDA. Despite provisions in PIPEDA, the court ruled that the Privacy Commissioner and the Federal Court had no jurisdiction to hear the complaint or s. 14(1) application, following Weber v. Ontario Hydro.
Right to Silence in Workplace Investigations
Not only does a unionized employee not have a right to remain silent during workplace investigations, they may have an obligation to provide information where a prima facie case of misconduct has been established.
In Re. Toronto East General Hospital Inc. and Service Employees Union (1975), 9 L.A.C. (2d) 311 an employee was terminated after an allegation of theft. A refusal to provide an explanation for property in the employee’s personal effects was held by the arbitrator as grounds for disciplinary action.
Case law still remains divided on whether a failure to provide an explanation is just cause for discipline.
A lack of requirement to provide an explanation does not necessarily equal a right to silence, because according to Re Tober Enterprises Ltd. and U.F.C.W. Local 1518 (1990), 7 C.L.R.B.R. a failure to rebut an employer’s evidence of wrongful conduct may be interpreted as a refusal to admit responsibility.
An employee can still be disciplined or discharged for a transgression even if they remain silent.
Admissions Against Interest During Workplace Investigations
According to Medis Health and Pharmaceutical Services v. Teamsters, Chemical and Allied Workers, Local 424 (Satar Grievance), (2001), 100 L.A.C. (4th) 178, admissions made against interest during workplace investigations where a representative is not present will likely not be admitted.
The collective agreement has an important role in shaping the employment relationship, especially the disciplinary process, typically by providing a right to receive assistance when facing a threat of discipline.
Unionized employees should be given a reasonable opportunity to contact a union representative. In Regional Health Authority 2 and C.U.P.E. (Goodline)(Re)(2004), 132 L.A.C. (4th) 160, the arbitrator found that the employer had an obligation to notify the unionized employee fo the rights int he collective agreement.
The Supreme Court decisions in Nicholson and Knight v. Indian Head indicated that procedural fairness does not apply to employees in the context of dismissal, but adjudicators have increasingly extended procedural fairness to all categories of the employment relationship.
Labour arbitrators are also not necessarily bound by rules of evidence common law, and have more discretion regarding violations of employee’s privacy interests in collecting information.
Access of Union to Confidential Employee Information
The Municipal Freedom of Information and Protection of Privacy Act, contains privacy provisions that can put an employer in conflict with a union’s demands.
In Ottawa-Carleton District School Board,  O.L.R.D. No. 4575, the Board agreed with a union complaint that the refusal of their request for home addresses and telephone numbers of employees was an unfair labour practice. The union would not be able to effectively hold strikes or ratification votes without the appropriate information to communicate with employees outside of work.
A similar ruling was found in Ontario (Alcohol and Gaming Commission),  O.L.R.D. No. 120, which clarified that release of information to a union does not mean disclosure to the public. The union also has an obligation to protect its members information, and it was unlikely that they would disclose it publicly.
This requirement to disclose personal employee information to a union does not breach PIPEDA, according to Via Rail Canada Inc. v. National Automobile, Aerospace, Transportation and General Workers’ Union, National Council 4000, (2003) 116 LAC (4th) 407 because employees implicitly consent to their bargaining agent to having access to limited information that is of low sensitivity.
Requirements by Employees for Psychiatric Assessments
Where there is reasonable evidence to suspect that an employee may be of danger to themselves or others, Re Consumer Glass and U.S.W.A., Loc. 260G (1998), 70 L.A.C. (4th) 140 indicated that an employer may be able to require a uninoized employee to undergo a psychiatric assessment. The employer did have a right to request that a unionized employee is mentally fit to return to work.
If there is a history of mental illness or an empoyee may pose a threat to themselves or others, these requests are unlikely to violate the Ontario Human Rights Code.
If the mental health is at issue in a hearing, Canada Post Corp. and Canadian Union of Postal Workers (Ms. X Grievance) (1998), 69 L.A.C. (4th) 393 and Pharma Plus Drugmarts Ltd. and U.S.W. (Retail Wholesale Canada Division) (1998), 49 L.A.C. (4th) 360 suggest that an employer can even compel a grievor to undergo a pscyhiatric assessment.
Under s. 48(12)(b) of the Ontario Labour Relations Act, an arbitrator is empowered to order pre-hearing disclosures that would provie the authority and discretion to order a psychiatric assessment, especially where there is conflicting medical evidence.
Medical Information During the Return to Work Process
An employer is generally entitled to request a proper certification of fitness from the employee, according to Leamington District Memorial Hospital and Service Employee’s Union (1992), 27 L.A.C. (4th) 10.
Employers may even have a duty to satisfy that an employee is medically fit to return to work. The onus is on the unionized employee to prove to the employer that they are fit to return to work, according to Proboard Ltd. v. Communication, Energy and Paperworkers’ Union, Local 49-0 (Fredrickson Grievance) (2001), 97 L.A.C. (4th) 271.
If an employer is still not satisfied that the employee is fit to return to work after this, Thomson General Hospital (Re) (1991), 20 L.A.C. (4th) 129 held that they employer can request additional medical information.
One means to receive this information is through an Independent Medical Evaluation (IME), but these usually involve a greater violation of privacy than less intrusive means. Re Brewers’ Warehousing Co. Ltd. and United Brewers’ Warehousing Workers Provincial Board, Local 311 (1982), 4 L.A. C. (3d) 257 indicated that right to medical examinations arise in contexts of an employee being a source of danger or unfit to perform the job, but can be qualified by collective agreement or statute.
IMEs have also been indicated in Via Rail Canada Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (Spatling Grievance) (2002) 106 L.A.C. (4th) 100, but an employee cannot be disciplined for refusing to submit to an IME. Instead, NAV Canada and Canadian AIr Traffic Control Assn. (1998), 74 L.A.C. (4th) 163 suggests that the proper remedy where an IME is refused may be an administrative suspension from duty or cessation of salary, but the collective agreement should still be consulted.
If an employer recieved medical information from a health information custodian (HIC) through this process, they may only disclose it for the purposes they were authorized to do so, or as part of a statutory orlegal duty as indicated above regarding PIPEDA.
A very special thanks to Richard Charney for allowing me to follow him this recently and sit in on this talk at the OBA Conference, and for his support of his alma mater.