Factum of the Intervener, the Privacy Commissioner of Canada: Elizabeth Bernard and Attorney General of Canada and Professional Institute of the Public Service of Canada

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February 2014

Text of argument made by the OPC

Supreme Court Judgments


SCC File No. 34819

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

ELIZABETH BERNARD

Appellant
(Applicant)

– and –

ATTORNEY GENERAL OF CANADA and PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA

Respondents
(Respondents)

– and –

ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ALBERTA, PUBLIC SERVICE ALLIANCE OF CANADA, PRIVACY COMMISSIONER OF CANADA, CANADIAN ASSOCIATION OF COUNSEL TO EMPLOYERS, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN CONSTITUTION FOUNDATION, ALBERTA FEDERATION OF LABOUR and COALITION OF BRITISH COLUMBIA BUSINESSES AND MERIT CANADA

Interveners

– and –

MICHAEL A. FEDER

Amicus Curiae

FACTUM OF THE INTERVENER, PRIVACY COMMISSIONER OF CANADA

SUPREME ADVOCACY LLP
397 Gladstone Ave., Suite 100
Ottawa, Ontario K2P 0Y9

Eugene Meehan, Q.C.
Marie-France Major

Tel: (613) 695-8855
Fax: (613) 695-8580
Email: emeehan@supremeadvocacy.ca

Counsel for the Intervener, The Privacy Commissioner of Canada

OFFICE OF THE PRIVACY COMMISSIONER OF CANADA
112 Kent Street, 3rd Floor
Ottawa, Ontario K1A 1H3

Patricia Kosseim
Louisa Garib

Tel.: (613) 995-2066
Fax: (613) 947-4192
Email: Louisa.Garib@priv.gc.ca

Counsel for the Intervener, The Privacy Commissioner of Canada

ELIZABETH BERNARD

Appellant

ATTORNEY GENERAL OF CANADA
Department of Justice
234 Wellington Street, room 1148, East Tower
Ottawa, Ontario K1A 0H8

Anne Turley
Tel.: (613) 941-2347
Fax: (613) 954-1920
Email: anne.turley@justice.gc.ca

Counsel for the Respondent, Attorney General of Canada

ATTORNEY GENERAL OF CANADA
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, Ontario K1A 0H8

Christopher M. Rupar
Tel.: (613) 941-2351
Fax: (613) 954-1920
Email: christopher.rupar@justice.gc.ca

Ottawa Agent for Counsel for the Respondent, Attorney General of Canada

SACK GOLDBLATT MITCHELL LLP
500-30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Peter C. Engelmann
Tel.: (613) 235-5327
Fax: (613) 235-3041
Email: pengelmann@sgmlaw.com

Counsel for the Respondent, Professional Institute of the Public Service of Canada

SACK GOLDBLATT MITCHELL LLP
500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Fiona Campbell
Tel.: (613) 235-5327
Fax: (613) 235-3041
Email: fionacampbell@sgmlaw.com

Ottawa Agent for Counsel for the Respondent, Professional Institute of the Public Service of Canada

MCCARTHY TÉTRAULT LLP
Suite 1300, 777 Dunsmuir Street
Vancouver, British Columbia V7Y 1K2

Michael A. Feder
Angela M. Juba
Tel.: (604) 643-5983
Fax: (604) 622-5614
Email: mfeder@mccarthy.ca

Counsel for the Amicus curiae, Michael A. Feder

BORDEN LADNER GERVAIS LLP
World Exchange Plaza
100 Queen Street, suite 1100
Ottawa, Ontario K1P 1J9

Nadia Effendi
Tel.: (613) 237-5160
Fax: (613) 230-8842

Ottawa Agent for Counsel for the Amicus curiae, Michael A. Feder

RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP
1600 - 220 Laurier Ave West
Ottawa, Ontario K1P 5Z9

Andrew Raven
Andrew Astritis

Tel.: (613) 567-2901
Fax: (613) 567-2921
Email: araven@ravenlaw.com

Counsel for Intervener, Public Service Alliance of Canada

Attorney General of Ontario
Constitutional Law Branch
720 Bay Street - 4th Floor
Toronto, Ontario M5G 2K1

Robin K. Basu
Rochelle Fox

Tel.: (416) 326-4476
Fax: (416) 326-4015
Email: robin.basu@jus.gov.on.ca

Counsel for the Intervener, Attorney General of Ontario

BURKE-ROBERTSON
441 MacLaren Street
Suite 200
Ottawa, Ontario K2P 2H3

Robert E. Houston, Q.C.
Tel.: (613) 236-9665
Fax: (613) 235-4430
Email: rhouston@burkerobertson.com

Ottawa Agent for Counsel for the Intervener, Attorney General of Ontario

ATTORNEY GENERAL OF BRITISH COLUMBIA
1301 - 865 Hornby Street
Vancouver, British Columbia V6Z 2G3

Karen A. Horsman
Tel.: (604) 660-3093
Fax: (604) 660-3833

Counsel for the Interveners, Attorney General of British Columbia

BURKE-ROBERTSON
441 MacLaren Street
Suite 200
Ottawa, Ontario K2P 2H3

Robert E. Houston, Q.C.
Tel.: (613) 236-9665
Fax: (613) 235-4430
Email: rhouston@burkerobertson.com

Ottawa Agent for Counsel for the Interveners, Attorney General of British Columbia

ATTORNEY GENERAL OF ALBERTA
9833 - 109 Street
Bowker Building, 4th Floor
Edmonton, Alberta T5K 2E8

Roderick Wiltshire
Tel.: (780) 422-7145
Fax: (780) 425-0307
Email: roderick.wiltshire@gov.ab.ca

Counsel for Intervener, Attorney General of Alberta

GOWLING LAFLEUR HENDERSON LLP
160 Elgin Street, 26th Floor
Ottawa, Ontario K1P 1C3

Henry S. Brown, Q.C.
Tel.: (613) 233-1781
Fax (613) 788-3433
Email: henry.brown@gowlings.com

Ottawa Agent for Counsel for Intervener, Attorney General of Alberta

MCLENNAN ROSS
West Chambers
600 - 12220 Stony Plain Rd. N.W.
Edmonton, Alberta T5N 3Y4

Hugh J.D. McPhail, Q.C.
Tel.: (780) 482-9200
Fax: (780) 482-9100
Email: hmcphail@mross.com

Counsel for Intervener, Canadian Association of Counsel to Employees

NORTON ROSE CANADA LLP
1500-45 O'Connor Street
Ottawa, Ontario K1P 1A4

Sally Gomery
Tel.: (613) 780-8604
Fax: (613) 230-5459
Email: sally.gomery@nortonrose.com

Ottawa Agent for Counsel for Intervener, Canadian Association of Counsel to Employees

DEWART GLEASON LLP
102 - 366 Adelaide Street West
Toronto, Ontario M5V 1R9

Sean Dewart
Tim Gleason
Tel.: (416) 971-8000
Fax: (416) 971-8001
Email: sdewart@dgllp.ca

Counsel for Intervener, Canadian Civil Liberties Association

GOWLING LAFLEUR HENDERSON LLP
160 Elgin Street, 26th Floor
Ottawa, Ontario K1P 1C3

Guy Régimbald
Tel.: (613) 786-0197
Fax: (613) 563-9869
Email: guy.regimbald@gowlings.com

Ottawa Agent for Counsel for Intervener, Canadian Civil Liberties Association

OSLER, HOSKIN & HARCOURT LLP
P.O. Box 50
1 First Canadian Place
Toronto, Ontario M5Z 1B8

Mark A. Gelowitz
Gerard J. Kennedy

Tel.: (416) 862-4743
Fax: (416) 862-6666

Counsel for Intervener, Canadian Constitution Foundation

OSLER, HOSKIN & HARCOURT LLP
340 Albert Street, Suite 1900
Ottawa, Ontario K1R 7Y6

Patricia J. Wilson
Tel.: (613) 787-1009
Fax: (613) 235-2867
Email: pwilson@osler.com

Ottawa Agent for Counsel for Intervener, Canadian Constitution Foundation

CHIVERS CARPENTER
101, 10426 - 81 Avenue
Edmonton, Alberta T6E 1X5

John R. Carpenter
Kara O'Halloran

Tel.: (780) 439-3611
Fax: (780) 439-8543
Email: jcarpenter@chiverslaw.com

Counsel for Intervener, Alberta Federation of Labour

SACK GOLDBLATT MITCHELL LLP
500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Raija Pulkkinen
Tel.: (613) 235-5327
Fax: (613) 235-3041
Email: rpulkkinen@sgmlaw.com

Ottawa Agent for Counsel for Intervener, Alberta Federation of Labour

HEENAN BLAIKIE LLP
55 Metcalfe Street, Suite 300
Ottawa, Ontario K1P 6L5

Simon Ruel
Andrea Zwack

Tel.: (418) 649-5491
Fax: (866) 265-9976
Email: sruel@heenan.ca

Counsel for Intervener, Coalition of British Columbia Businesses and Merit Canada

HEENAN BLAIKIE LLP
55 Metcalfe Street, Suite 300
Ottawa, Ontario K1P 6L5

Perri Ravon
Tel.: (613) 236-8071
Fax: (613) 236-9632
Email: pravon@heenan.ca

Ottawa Agent for Counsel for Intervener, Coalition of British Columbia Businesses and Merit Canada


PART I – STATEMENT OF FACTS AND OVERVIEW

  1. This appeal involves the intersection of two compelling legislative policies: effective labour-management relations and the protection of individual privacy. The appeal centers on whether the employer is required under the Public Service Labour Relations Act (“PSLRA”)Footnote 1, or permitted under the Privacy ActFootnote 2, to disclose employee home contact information to the union, without consent. Specifically at issue in this appeal is the Public Service Labour Relations Board’s Order that the employer disclose the home addresses and phone numbers of Rand employees – workers who, despite having to pay union dues, have chosen not to become union members, and do not consent to the disclosure of their home contact information to the union.
  2. This case provides an opportunity for this honourable Court to define the parameters within which an employer may disclose to a union, personal information of Rand employees without consent. Defining these parameters requires identifying which uses of employee personal information are “consistent” under the Privacy Act, and limiting any disclosure to what is minimally needed to fulfill labour relations purposes. To the extent that any consent exceptions apply in this case, these should be interpreted narrowly given the: quasi-constitutional status of the Privacy Act; particular circumstances of Rand employees; lack of any privacy legislation governing the union in this case; privacy interest in home contact information; and the availability of modern, less privacy-intrusive alternatives to effectively communicate with employees.

PART II – STATEMENT OF ISSUE

  1. The Office of the Privacy Commissioner of Canada’s submission as intervener in this appeal is limited to the following issue:
    1. (i) Whether the employer’s disclosure of the home address and home phone number of employees, without consent, is a “consistent use” under subsection 8(2)(a) of the Privacy Act?

PART III – STATEMENT OF ARGUMENT

“Consistent use” under s. 8(2)(a) the Privacy Act is a narrow exception to disclosure without consent

  1. The Privacy Act has two main objectives: first, to protect personal information held by government institutions and second, to provide individuals with a right of access to their personal information.Footnote 3 The Privacy Act requires federal government departments and agencies to respect privacy rights by limiting the collection, use and disclosure of personal information.Footnote 4
  2. Subsection 8(1) of the Privacy Act prohibits a federal government institution from disclosing personal information without consent. Subsection 8(2) of the Privacy Act contains a number of exceptions to this prohibition, all of which are subject to any other Act of Parliament.Footnote 5 Only one of the exceptions under 8(2) need be invoked to justify disclosure.Footnote 6
  3. From a privacy perspective, the central issue in this appeal is the interpretation of “consistent use” in paragraph 8(2)(a) under the Privacy Act:

    Where personal information may be disclosed 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;

  4. The concept of “consistent use” is critical in the context of the federal public sector because it provides the key which, unless properly guarded, could allow the government to use and disclose personal information of citizens for indiscriminate purposes without consent.
  5. The Federal Court has interpreted “consistent use” under paragraph 8(2)(a) in a limited number of contextually-specific cases.Footnote 7 Aside from the Federal Court of Appeal’s decision in Bernard II,Footnote 8 there is limited caselaw on what constitutes “consistent use” under paragraph 8(2)(a) in the federal labour relations context. Footnote 9
  6. Despite the dearth of cases and variance in outcomes, the following legal principles have emerged from preceding decisions of the Federal Courts and the Canadian Industrial Relations Board:
    • Government institutions have an obligation to ensure that confidential personal information is not disclosed unless in accordance with the Privacy Act;Footnote 10
    • Disclosure should be limited and proportionate;Footnote 11
    • Each case should be dealt with on its own facts;Footnote 12
    • The bargaining agent shares with the employer the need to utilize personal information for proper, appropriate and limited purposes, however, not all data must always be disclosed to a bargaining agent upon request. The requested information must be related to a necessary function of the bargaining agent such as its negotiation or reasonable administration of the collective agreement; Footnote 13
    • Alternatives to full disclosure should be considered in order to strike a balance between the need for disclosure and the right to privacy. Where competing interests are at play, an “all-or-nothing approach” is not appropriate.Footnote 14
  7. In Bernard IIFootnote 15, the Federal Court of Appeal cited the following definition of consistent use in the Treasury Board’s Policy of Privacy Protection:Footnote 16
    • Consistent use (usage compatible): Is a use that has a reasonable and direct connection to the original purpose(s) for which the information was obtained or compiled. This means that the original purpose and the proposed purpose are so closely related that the individual would expect that the information would be used for the consistent purpose, even if the use is not spelled out.
  8. The Federal Court of Appeal found that the employer collected the Appellant’s home address and telephone information for the broad purpose of contacting her about the terms and conditions of her employment.Footnote 17 The union’s position is that it too is entitled to this information in order to contact all employees in the bargaining unit for a broad range of labour relations purposes, whether or not employees are members of the union.Footnote 18 However, it is far from clear that a Rand employee, who expressly chooses not to associate, would reasonably expect her employer to disclose her home contact information to the union.
  9. While the Preamble, sections 119-134 (Essential Services), 183 (Vote on Employer’s Offer), 184 (Strike Votes) and 185-187 (Unfair Labour Practice) of the PSLRAFootnote 19 require an employer to disclose personal information to the union for certain legitimate purposes, they do not require nor authorize disclosure of home contact information for a broad range of indiscriminate purposes bearing no reasonable or direct connection to the management of the employment relationship. For example, Rand employees’ personal information should not be disclosed or used for recruitment or certification drives, union advocacy on social or political issues, or internal union matters.
  10. The PSLRA provisions do not require the employer or the union to identify where an employee lives and how they can be contacted within their home. It is not clear which of the cited PSLRA provisions require contacting all employees, including Rand employees, at home as a "necessary function of the bargaining agent.” Provisions that may entail contacting employees for the purposes of “negotiation or reasonable administration of the collective agreement” do not address the means of contacting or notifying employees. None of these provisions requires the union to only contact employees using home address and phone number, particularly when there are other, less privacy-invasive means available.
  11. The language in the PSLRA provisions does not support the argument that the disclosure in question is authorized by paragraph 8(2)(a) or 8(2)(b) (“in accordance with any Act of Parliament or any regulation”). Paragraphs 8(2)(a) and 8(2)(b) were not intended as blanket endorsements for the non-consensual disclosure of an employee’s personal information for all labour relations purposes, particularly when dealing with Rand employees who are not members of the union and when personal home contact information is not necessary for stated purposes.
  12. Rather, it is the Privacy Commissioner’s position that privacy protections should be interpreted broadly, and any exceptions to that protection should be interpreted narrowly for the following reasons:

The Privacy Act has quasi-constitutional status

  1. This Honourable Court has held that the Privacy Act is quasi-constitutional legislation that must be interpreted with its special purposes in mind.Footnote 20,Footnote 21 The enactment by Parliament of Part IV of the Canadian Human Rights Act, later replaced by the Privacy Act, illustrated its recognition of the importance of the protection of individual privacy. A purposive approach to the interpretation of the Privacy Act is thus justified by the statute’s quasi-constitutional legislative roots.Footnote 22
  2. Courts have ruled that rights set out under constitutional or quasi-constitutional legislation such as the Privacy Act should be interpreted broadly, and any exceptions to the protection of those rights, should be interpreted narrowly.Footnote 23

No meaningful recourse is available against the employer or the union for improper use or disclosure of employee personal information

  1. The right to privacy implies not just protection from unauthorized disclosure and use of personal information, but also the ability to identify and challenge such practices, and to seek a meaningful remedy.Footnote 24 While the Privacy Act provides individuals with judicial recourse for denials of access to their personal information,Footnote 25 no such recourse exists for individuals seeking to challenge a government institution’s improper collection, use or disclosure of their personal information.Footnote 26
  2. Individuals, such as the Appellant in this case, have no more recourse against the union for improper handling of her personal information. Significant amounts of employee personal information are collected, used and disclosed by labour unions across Canada without any privacy protection. At the federal level, the Privacy Act does not cover public sector unions, nor does the Personal Information Protection and Electronic Documents Act (“PIPEDA”) apply to unions’ core activities in the private sector.Footnote 27 For its part, the PSLRB’s 2012 OrderFootnote 28 does not provide a comparable level of privacy protection either. Once in the hands of the union, the Appellant’s personal information is simply unregulated.

The Appellant’s Status as a Rand Employee

  1. In this case, the Appellant, a Rand employee, wants to exercise some control over her personal information going to the union, an organization she has declined to join. The Appellant objects to the disclosure of her home address and phone number and does not want to be contacted by the union in this manner. In essence, she simply wants to be left alone.Footnote 29
  2. Although labour jurisprudence has generally held that a union is entitled to employee contact information in order to fulfill the union’s mandate to represent its members, Footnote 30 few cases, other than the Federal Court of Appeal’s decision now before this Court, Footnote 31 address the status of Rand employees, who are not union members, but nevertheless pay union dues. It is by virtue of the Appellant’s unique and judicially-recognized status as a Rand employee, and her long-standing objection to the release of her home contact information, that the privacy interests in this case have come into such sharp focus.Footnote 32
  3. In the absence of consent, the Privacy Act does not permit disclosure of a Rand employee’s personal information to the bargaining agent in order to contact these employees for union recruitment, certification drives, political campaigning or any other purpose which is not reasonably and directly related to managing the terms and conditions of employment.
  4. As a Rand employee, the Appellant has an ambiguous legal status in the workplace. To date, the legal status of Rand employees within the labour relations regime has not been defined by courts or tribunals. Other than the obligation of Rand employees to pay union dues to ensure union security, and the union’s reciprocal duty of fair representation towards all employees in the bargaining unit, the respective rights and obligations of the parties remain legally undefined.Footnote 33 It is not clear to what extent the various union responsibilities under statute or at common law owed to its members are also owed to Rand employees within the bargaining unit.
  5. This Court has generally recognized the privacy rights of federal government employees and their protections under the Privacy Act.Footnote 34 A Rand employee’s consistent objection to the disclosure of her personal home contact information to a union she does not wish to associate with must surely have some meaning and be afforded some respect.

The Legitimate Privacy Interest in Home Contact Information

  1. Under section 3(d) of the Privacy Act, an employee’s home address, personal email address and telephone number are protected as personal information. This is because there are legitimate privacy interests in “basic personal contact information” that involve intersecting aspects of personal privacy, territorial privacy, and informational privacy.
  2. The law has long protected the privacy of the home. Footnote 35 An individual’s home address and phone number identifies where that person spends their private life.Footnote 36 Home contact information provides a means by which others can reach into a person’s most private sphere and gain access to them in their most intimate context. Home contact information can reveal information about a person’s finances, property ownership, socio-economic status, lifestyle choices, cultural background, and family status.Footnote 37 In certain contexts, the disclosure of home contact information can raise concerns regarding personal security and freedom from unwanted intrusion.Footnote 38
  3. Individuals may consider home contact information to be sensitive personal information if they wish to be free from intrusions into their personal “hearth and home” and avoid unsolicited calls or in-person interactions from organizations with which they choose not to associate.Footnote 39 The risk of harm may be heightened if home contact information is improperly used, disclosed, or combined with other data readily accessible in today’s networked, online environment.Footnote 40 The very purpose of the Privacy Act, and privacy legislation in general, is to minimize and prevent such risk of harm.

Less Privacy Intrusive Alternatives Exist to Contact Employees

  1. As technology and information consumption practices change, traditional requirements for an individual’s physical home address or home phone number for contact purposes are rapidly becoming outdated. Internet and networking technologies now offer more modern, effective and expeditious methods of communication, via e-mail, texting, websites, blogs and social media. In some cases, these channels of communication are virtually instantaneous. These are increasingly recognized even by courts as the primary means of communication for individuals.Footnote 41
  2. Using and disclosing employees’ home contact information is no longer necessary in cases where these alternative methods of information dissemination and communication are available and preferred by employees such as the Appellant. Alternative modes of communication which can address the practical needs of both employer and union, while respecting employee privacy, should be considered by the Court in determining to what extent employee personal information should be disclosed to unions under the Privacy Act.

CONCLUSION

  1. The object and purpose of labour legislation is to promote a harmonious workplace through resolution of workplace conflict and to allow a measure of employee democracy through the expression of collective action in the workplace. According to the principles set out under Canadian labour legislation, it is clear that Parliament recognized the fundamental role of unions in Canadian society. The courts and other adjudicators have long established a balance between the collective rights of unions and individual rights and freedoms.Footnote 42
  2. Effective privacy protection for employees in Canada requires employers and unions to take accountability for appropriate handling of personal information through robust privacy standards and mechanisms. Privacy rights of employees need not conflict or interfere with labour relations regimes, although their co-existence may introduce a new level of complexity in union-management relations. A more nuanced approach informed by Privacy Act obligations calls for re-examination of some long-standing perceptions about information-sharing practices to keep up with the modern reality of technological change and privacy expectations.
  3. Given the importance of effective privacy protection within a modern labour relations regime, and in the interests of bringing finality to this matter, it would be open for this Court to set the parameters of a more nuanced framework for assessing “consistent use” under paragraph 8(2)(a) of the Privacy Act. The Privacy Commissioner proposes the following guiding principles for consideration:
    • Privacy protections should be interpreted broadly; any exceptions to those protections should be applied narrowly;
    • The nature and sensitivity of the personal information being disclosed should be considered;
    • The level of privacy protection provided by the institution receiving the personal information and the recourses available for individuals to challenge its personal information management practices should be taken into account;
    • The original purpose for collection and the proposed purpose for disclosure should be so closely related that the individual would reasonably expect their personal information would be used for such purpose;
    • Disclosure should be limited to only what is minimally required to fulfil said purpose; and,
    • Less privacy invasive measures, if available, should be favoured.

PART IV – ORDERS SOUGHT

  1. The Privacy Commissioner of Canada takes no position on the disposition of this appeal. The Intervener seeks no costs and requests that no costs be awarded against it. The Intervener requests permission to present 10 minutes of oral submissions in support of its position.

All of which is respectfully submitted this 21st day of May, 2013.

Eugene Meehan, Q.C.
Marie-France Major
Patricia Kosseim
Louisa Garib


PART V – LIST OF AUTHORITIES

# Cases Para Cited
1 A.B. v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 3 5,9
Atomic Energy of Canada Limited, [2001] CIRB no. 110.
Book of authorities, Attorney General of Canada, Tab 2
8,9
Bank of Canada, 2007 CIRB 387
Book of authorities, Attorney General of Canada, Tab 28
8,21
Bernard v. A.G. of Canada, 2012 FCA 92
Appellant’s Record, Vol I, Tab 2E
8,9,11
2 Canada (Information Commissioner) v. Canada (Commissioner of the Royal
Canadian Mounted Police), 2003 SCC 8
24
3 3Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 24
Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, [2006] 3 FCR 493.
Book of authorities, Attorney General of Canada, Tab 8
class="text-right nowrap"8,9
Canada (Public Safety and Emergency Preparedness) v. Lin, 2011 FC 431
Book of authorities, Attorney General of Canada, Tab 9
8,9
4 CAW-Canada v. The Millcroft Inn Ltd.,[2000] Ont. L.R.B. Rep. July/August 665 21
5 Igbinosun v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 131 (F.C.T.D.) 8
6 Jackson v. Canada (Attorney-General), [2005] O.J. No. 2691 (S.C.) var’d [2006] O.J. No. 3737 (C.A.) 26
Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773
Book of authorities, Attorney General of Canada, Tab 22
16
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
Book of authorities, Attorney General of Canada, Tab 23
23,30
7 Manson v. John Doe, 2013 ONSC 628 at paras 7, 9, 12, 13 and 23 28
8 Moin v. Canada (Citizenship and Immigration), 2007 FC 473 8
9 Monarch Transport Inc. and Dempsey Freight Systems Ltd., 2003 CIRB 249 21
10 Murdoch v. Canada (Royal Canadian Mounted Police), [2005] 271 FTR 278 18
11 Nammo c. Transunion of Canada Inc., 2010 FC 1284 16
12 Parnian v Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 142 8
Professional Institute of the Public Service of Canada (PIPSC) v. Canada Revenue Agency (CRA),2011 PSLRB 34
Appellant’s Record, Vol I, Tab 2D
19
13 Privacy Act (Can.) (Re), [2000] F.C.J. No. 179 (QL) 5
14 Puccini v. Canada (Department of Agriculture Corporate Administrative Services), [1993] 3 F.C. 557 (T.D.). 8
15 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 SCR 665 17
R. v. Advance Cutting & Coring Ltd., [2001] 3 SCR 209.
Book of authorities, Attorney General of Canada, Tab 32
30
16 R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67 28
17 R. v. Tse, [2012] 1 SCR 531 18
Sturkenboom v Professional Institute of the Public Service et al. 2012 PSLRB 81
Book of authorities, Appellant, Tab 16
21
18 Suttie v. Canada (Attorney General), 2011 FC 119 26
TD Canada Trust v. United Steel 2007 FCA 285
Book of authorities, Attorney General of Canada, Tab 43
27
TELUS Advanced Communications, a Division of TELUS Communications Inc., 2008 CIRB 415
Book of authorities, Attorney General of Canada, Tab 45
21
19 Yeager v. Canada (National Parole Board), 2008 FC 113 26

PART VI – LIST OF STATUTES

An Act respecting the Protection of personal information in the private sector, R.S,Q. c.P-39.1, s. 1.

1. The object of this Act is to establish, for the exercise of the rights conferred by articles 35 to 40 of the Civil Code concerning the protection of personal information, particular rules with respect to personal information relating to other persons which a person collects, holds, uses or communicates to third persons in the course of carrying on an enterprise within the meaning of article 1525 of the Civil Code.

The Act applies to such information whatever the nature of its medium and whatever the form in which it is accessible, whether written, graphic, taped, filmed, computerized, or other.

This Act also applies to personal information held by a professional order to the extent provided for by the Professional Code (chapter C-26).

This Act does not apply to journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public.

Divisions II and III of this Act do not apply to personal information which by law is public.

1993, c. 17, s. 1; 2002, c. 19, s. 19; 2006, c. 22, s. 111.

Loi sur la Protection des renseignements personnels dans le secteur privé, LRQ, c P-39.1

1. La présente loi a pour objet d'établir, pour l'exercice des droits conférés par les articles 35 à 40 du Code civil en matière de protection des renseignements personnels, des règles particulières à l'égard des renseignements personnels sur autrui qu'une personne recueille, détient, utilise ou communique à des tiers à l'occasion de l'exploitation d'une entreprise au sens de l'article 1525 du Code civil.

Elle s'applique à ces renseignements quelle que soit la nature de leur support et quelle que soit la forme sous laquelle ils sont accessibles: écrite, graphique, sonore, visuelle, informatisée ou autre.

Elle s'applique aussi aux renseignements personnels détenus par un ordre professionnel dans la mesure prévue par le Code des professions (chapitre C-26).

La présente loi ne s'applique pas à la collecte, la détention, l'utilisation ou la communication de matériel journalistique, historique ou généalogique à une fin d'information légitime du public.

Les sections II et III de la présente loi ne s'appliquent pas à un renseignement personnel qui a un caractère public en vertu de la Loi.

1993, c. 17, a. 1; 2002, c. 19, a. 19; 2006, c. 22, a. 111.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [Enacted by the Canada Act 1982 [U.K.] c.11], s. 8.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Loi constitutionnelle de 1982, Annexe B de la Loi de 1982 sur le Canada (R-U), 1982, c 11

Fouilles, perquisitions ou saisies

8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives.

Personal Information Protection Act, S.A. 2003, P-6.5, s. 1.

Definitions

1(1) In this Act,

(a) “business contact information” means an individual’s name, position name or title, business telephone number, business address, business e-mail address, business fax number and other similar business information;

(b) “Commissioner”means the Information and Privacy Commissioner appointed under the Freedom of Information and Protection of Privacy Act;

(c) “credit reporting organization” means a reporting agency as defined in Part 5 of the Fair Trading Act;

(d) “domestic”means related to home or family;

(e) “employee”means an individual employed by an organization and includes an individual who performs a service for or in relation to or in connection with an organization

(i) as a partner or a director, officer or other office-holder of the organization,

(i.1) as an apprentice, volunteer, participant or student, or

(ii) under a contract or an agency relationship with the organization;

(f) “investigation”means an investigation related to

(i) a breach of agreement,

(ii) a contravention of an enactment of Alberta or Canada or of another province of Canada, or

(iii) circumstances or conduct that may result in a remedy or relief being available at law,

if the breach, contravention, circumstances or conduct in question has or may have occurred or is likely to occur and it is reasonable to conduct an investigation;

(g) “legal proceeding” means a civil, criminal or administrative proceeding that is related to

(i) a breach of an agreement,

(ii) a contravention of an enactment of Alberta or Canada or of another province of Canada, or

(iii) a remedy available at law;

(g.1) “legislative instrument of a professional regulatory organization” means a bylaw, resolution or rule that is

(i) enacted or otherwise established by a professional regulatory organization under an Act or a regulation of Alberta, and

(ii) of a legislative nature;

(g.2) “local government body” means a local government body as defined in the Freedom of Information and Protection of Privacy Act;

(h) “Minister”means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this Act;

(i) “organization”includes

(i) a corporation,

(ii) an unincorporated association,

(iii) a trade union as defined in the Labour Relations Code,

(iv) a partnership as defined in the Partnership Act, and

(v) an individual acting in a commercial capacity,

but does not include an individual acting in a personal or domestic capacity;

(j) “personal employee information” means, in respect of an individual who is a potential, current or former employee of an organization, personal information reasonably required by the organization for the purposes of

(i) establishing, managing or terminating an employment or volunteer-work relationship, or

(ii) managing a post-employment or post-volunteer-work relationship

between the organization and the individual, but does not include personal information about the individual that is unrelated to that relationship;

(k) “personal information” means information about an identifiable individual;

(k.1) “professional Act” means an enactment under which a professional or occupational group or discipline is organized, and that provides for

(i) membership in the professional or occupational group or discipline, and

(ii) the regulation of the members of the professional or occupational group or discipline with respect to more than one of the following:

(A) registration;

(B) competence;

(C) conduct;

(D) practice;

(E) disciplinary matters;

(k.2) “professional regulatory organization” means an organization incorporated under a professional Act;

(l) “public body” means a public body as defined in the Freedom of Information and Protection of Privacy Act;

(m) “record”means a record of information in any form or in any medium, whether in written, printed, photographic or electronic form or any other form, but does not include a computer program or other mechanism that can produce a record;

(m.1) “regulation of Alberta” means a regulation as defined in the Regulations Act that is filed under that Act;

(m.2) “regulation of Canada” means a regulation as defined in the Statutory Instruments Act(Canada) that is registered under that Act;

(m.3) “service provider” means any organization, including, without limitation, a parent corporation, subsidiary, affiliate, contractor or subcontractor, that, directly or indirectly, provides a service for or on behalf of another organization;

(n) “volunteer work relationship” means a relationship between an organization and an individual under which a service is provided for or in relation to or is undertaken in connection with the organization by an individual who is acting as a volunteer or is otherwise unpaid with respect to that service and includes any similar relationship involving an organization and an individual where, in respect of that relationship, the individual is a participant or a student.

(2) For the purposes of section 14(c.3),17(c.3) and 20(c.3), “audit” means a financial or other formal or systematic examination or review conducted in accordance with recognized standards for an accepted business purpose, but does not include an examination or review conducted with respect to a business transaction referred to in section 22.

2003 cP-6.5 s1;2009 c50 s2

Personal Information Protection Act, SBC 2003, c 63, s. 1.

Definitions

1 In this Act:

"commissioner" means the commissioner appointed under section 37 (1) or 39 (1) of the Freedom of Information and Protection of Privacy Act;

"contact information" means information to enable an individual at a place of business to be contacted and includes the name, position name or title, business telephone number, business address, business email or business fax number of the individual;

"credit report" has the same meaning as "report" in section 106 of the Business Practices and Consumer Protection Act;

"credit reporting agency" has the same meaning as "reporting agency" in section 106 of the Business Practices and Consumer Protection Act;

"day" does not include a holiday or a Saturday;

"document" includes

(a) a thing on or by which information is stored, and

(b) a document in electronic or similar form;

"domestic" means related to home or family;

"employee" includes a volunteer;

"employee personal information" means personal information about an individual that is collected, used or disclosed solely for the purposes reasonably required to establish, manage or terminate an employment relationship between the organization and that individual, but does not include personal information that is not about an individual's employment;

"employment" includes working under an unpaid volunteer work relationship;

"federal Act" means the Personal Information Protection and Electronic Documents Act (Canada);

"investigation" means an investigation related to

(a) a breach of an agreement,

(b) a contravention of an enactment of Canada or a province,

(c) a circumstance or conduct that may result in a remedy or relief being available under an enactment, under the common law or in equity,

(d) the prevention of fraud, or

(e) trading in a security as defined in section 1 of the Securities Act if the investigation is conducted by or on behalf of an organization recognized by the British Columbia Securities Commission to be appropriate for carrying out investigations of trading in securities,

if it is reasonable to believe that the breach, contravention, circumstance, conduct, fraud or improper trading practice in question may occur or may have occurred;

"organization" includes a person, an unincorporated association, a trade union, a trust or a not for profit organization, but does not include

(a) an individual acting in a personal or domestic capacity or acting as an employee,

(b) a public body,

(c) the Provincial Court, the Supreme Court or the Court of Appeal,

(d) the Nisga'a Government, as defined in the Nisga'a Final Agreement, or

(e) a private trust for the benefit of one or more designated individuals who are friends or members of the family of the settlor;

"personal information" means information about an identifiable individual and includes employee personal information but does not include

(a) contact information, or

(b) work product information;

"proceeding" means a civil, a criminal or an administrative proceeding that is related to the allegation of

(a) a breach of an agreement,

(b) a contravention of an enactment of Canada or a province, or

(c) a wrong or a breach of a duty for which a remedy is claimed under an enactment, under the common law or in equity;

"public body" means

(a) a ministry of the government of British Columbia,

(b) an agency, board, commission, corporation, office or other body designated in, or added by regulation to, Schedule 2 of the Freedom of Information and Protection of Privacy Act, or

(c) a local public body as defined in the Freedom of Information and Protection of Privacy Act;

"work product information" means information prepared or collected by an individual or group of individuals as a part of the individual's or group's responsibilities or activities related to the individual's or group's employment or business but does not include personal information about an individual who did not prepare or collect the personal information.

Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, Factum of PIPSC, p. 50

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