Privacy Torts in the Unionized Context

The tort of intrusion upon seclusion continues to grow and find application in new settings and circumstances, which is what we would expect for a tort created less than 5 years ago.

In Complex Services Inc v Ontario Public Service Employees Union, arbitrator Surdykowski sided with the employer in finding that this new tort dealt with non-legislated and non-contractual rights to privacy. These rights would necessarily be limited in the unionized context.

This holding was summarized in United Food & Commercial Workers, Local 206 v G & K Services Canada Inc as follows,

94. ..An employee does not have a right to accommodation unless s/he provides the employer with sufficient reliable evidence that s/he has a disability that requires accommodation and the accommodation required. The consequences may be the denial of sick benefits or the employer’s refusal to allow the employee to continue or return to work until the information is provided. An employee cannot, however, be disciplined for keeping his or her medical information private.

Privacy interests may also constrain the function of the union.

An employer in CBI Home Health (AB) Limited Partnership v Alberta Union of Provincial Employees alleged that the union improperly accessed confidential employee information, obtained from an HR employee, and used it for an organizing drive. The Alberta Labour Relations Board did not find sufficient evidence to support this finding, but left it open to the possibility that the collection of personal information in this manner might in exceptional circumstances bring it within its discretionary power, especially where it was tied to the certification process. Without that, the Board referred the privacy components to the privacy commissioner, given the statutory privacy protections in that province.

A slightly different context emerged in a recent Ontario Labour Relations Act grievance in St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees,where the employer acknowledged it had inappropriately disclosed confidential medical information to another employer.

As with the labour decisions above, the employer made an appropriate request of the employee to supply a medical note regarding fitness to perform duties. The employer then provided a contractor associated with the employer a copy of this note, without the employee’s consent, and shared information about the accommodations she received in respect to hours of work and shifts.

The union claimed this was not only a a breach of the Collective Agreement and the Employer’s Confidentiality Policy, but was also a violation of the Occupational Health and Safety Act and the tort of intrusion upon seclusion. The latter basis gave rise to a tort claim in damages. Arbitrator Knopf stated,

The Agreed Facts reveal that although this Employer’s Human Resources department and contractor acted in the honest belief that they were doing no wrong, the release of medical information was done deliberately and done without regard to the Employer’s Confidentiality Policy and without seeking legal advice. Therefore, it was reckless and improper. This was an intrusion into the Grievor’s private medical affairs. Any reasonable person would be offended by such conduct and would suffer distress as a result. Accordingly, the elements of “intrusion on seclusion” or invasion of privacy have been established.

A very modest damages award of $1,000 was provided to the employee. A mitigating factor was that there was no medical condition revealed, or any information creating what she considered a stigma.

By itself, this decision is largely inconsequential, but as we’ve seen with this tort in civil litigation, in the aggregate it could be quite significant indeed. Additional damages may be recoverable with the tort of public disclosure of private facts.

Although arbitral decisions are not binding in the same way, employers in the unionized context who previously relied exclusively on statutes and the letter of the collective agreement, may find additional exposure in privacy torts if they inappropriately deal with confidential information of their unionized employees.

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