Bernard v. Canada (Attorney General), 2014 SCC 13

June 2014

Summary: The Privacy Act does not prohibit the disclosure of an employee’s home addresses and telephone numbers to that employee’s bargaining agent, provided that certain safeguards are put in place to protect the security of that information.

Facts: The appellant is an employee of the Canada Revenue Agency (“CRA”).  She is represented by the Professional Institute of the Public Service of Canada (“PIPSC”), but she is not a member of PIPSC.  She is a so-called “Rand” employee: she pays union dues and is represented by a union, but she is not a member of that union.  In 2007, PIPSC filed a complaint with the Public Service Labour Relations Board (the “Board”) that the CRA’s refusal to provide it with home contact information for members of the bargaining unit breached the Public Service Labour Relations Act.  The Board agreed, and ordered PIPSC and the CRA to attempt to reach an agreement on how much contact information needed to be disclosed to PIPSC.  They eventually agreed that CRA would disclose, on a quarterly basis, the home addresses and telephone number of members of the bargaining unit.  PIPSC agreed to three privacy-enhancing features: (1) it could use the home contact information only for legitimate purposes under the Public Service Labour Relations Act i.e. to permit it to fulfil its representational obligations; (2) it could not disclose the information to anyone other than those officials responsible for fulfilling its obligations; and (3) it undertook to be bound by the principles of the Privacy Act and the Government Security Policy.  The Board turned this agreement into an order.

The applicant learned about this order and challenged the order by way of judicial review.  The Federal Court of Appeal concluded that the Board erred by simply adopting the agreement without examining the privacy implications, and ordered that the Board reconsider its decision – this time, with the participation of the applicant and the Privacy Commissioner.  The Board reconsidered its decision and confirmed its original decision, but with three additional privacy safeguards: (1) the home contact information must be password-protected or encrypted; (2) the CRA has to advise employees on their initial appointment that their home contact information will be shared with PIPSC; and (3) PIPSC must dispose of home contact information when it receives updated information from the CRA.  The applicant unsuccessfully challenged the Board’s second decision in the Federal Court of Appeal.

Result: The Supreme Court of Canada upheld the Board’s decision.

Decision: The Supreme Court of Canada decided that unions require an effective means of contacting employees in order to discharge their representational duties, and that a union must be on an equal footing with the employer with respect to information relevant to the collective bargaining relationship.  The union’s need to be able to communicate with employees on an equal footing with the employer can only be satisfied by permitting the union to communicate with employees it represents through home contact information; it cannot be satisfied through work contact information which can be monitored by the employer. 

The main Privacy Act issue raised was about the Board’s conclusion that disclosure of an employee’s personal information to their union was permitted under s. 8(2)(a) of the Privacy Act – the provision permitting disclosure for “a use consistent with” the purpose for which the information was obtained by the institution.  The Supreme Court of Canada decided that under s. 8(2)(a) there must be a sufficiently direct connection between the original purpose and the proposed use, such that a person would reasonably expect that the information could be used in the manner proposed.  The Court concluded that an employer collects home contact information in part for the purpose of contacting employees about terms and conditions of employment, and that the union’s proposed use is consistent with this purpose.  The Court also concluded that a union needs home contact information to carry out its representational obligations “quickly and efficiently.”

The appellant raised a Charter argument, alleging that the Board’s order violated her freedom of association.  The majority of the Supreme Court of Canada concluded that the Board correctly declined to address this argument in light of the limited nature of the Federal Court of Appeal’s order referring the matter back to the Board.  A minority of judges on the Supreme Court of Canada concluded that the Board should have dealt with the Charter issue.  Both sets of judges, however, concluded that there was no merit in the Appellant’s Charter argument.  The Court had confirmed in previous cases that the Rand formula did not violate freedom of association; therefore, the consequences of the Rand formula (including providing personal information to a union) also do not violate the Charter.

Principles:

  1. Information can be disclosed under s. 8(2)(a) of the Privacy Act when there is a sufficiently direct connection between the purpose for which it was collected and the proposed use, such that a person would reasonably expect that the information could be used in the manner proposed.
  2. Providing an employee’s home contact information to a union who represents that employee is permitted under s. 8(2)(a) of the Privacy Act.
  3. Before providing home contact information to a union, an employer should ensure that the following six safeguards are put in place:
    • the union can use the home contact information only to permit it to fulfil its representational obligations;
    • the union cannot disclose the information to anyone other than those officials responsible for fulfilling its obligations;
    • the union should undertake to be bound by the principles of the Privacy Act and an employer’s internal privacy policies;
    • the home contact information must be password-protected or encrypted;
    • the employer has to advise employees on their initial appointment that their home contact information will be shared with their union; and
    • the union must dispose of home contact information when it receives updated information from the employer.
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