Morgan v. Alta Flights (Charters)Inc., 2005 FC 421

Date: 20050329

Docket: T-1066-04

Citation: 2005 FC 421

Ottawa, Ontario, this 29^th day of March, 2005

Present:           The Honourable Mr. Justice Simon Noël                             

BETWEEN:

                                                             JANICE MORGAN

                                                                                                                                            Applicant

                                                                           and

                                               ALTA FLIGHTS (CHARTERS) INC.

                                                                                                                                        Respondent

                                                                           and

                                    THE PRIVACY COMMISSIONER OF CANADA

                                                                                                                            Added Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of the Office of the Privacy Commissioner of Canada (the "Privacy Commissioner"), dated April 12, 2004, advising Janice Morgan (Ms. Morgan, or the "Applicant") that no violation of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"), was committed by her employer, the Respondent Alta Flights (Charters) Inc. ("Alta Flights"), in its attempt to record conversations of some of its employees, including the Applicant. The Applicant seeks :

-           an Order declaring that the complaint of Janice Morgan in this matter is well-founded;

-           an Order directing the Respondent to correct its practices in this regard by refraining from surreptitiously intercepting, collecting, using and disclosing private communications of its employees, and to comply with sections 5 to 10 of the PIPEDA and, in particular, Schedule 1, sections 4.3 and 4.4;

-           an Order directing the Respondent to publish a notice of this Order in its Employees' Newsletter;

-           an Order awarding exemplary damages to the Applicant, including damages for humiliation that the Applicant has suffered, in the sum of $5,000.00;

-           an Order of Solicitor-Client costs to the Applicant, to be paid by the Respondent.

ISSUE

[2]                It is important to note at the outset that judicial review of decisions of the Privacy Commissioner under s. 14 of PIPEDA are not reviews of its findings and recommendations. This section provides for a de novo review of the conduct in question; in this case, the actual decision of Alta Flights to attempt to surreptitiously record the conversations of some of its employees, including the Applicant : see Englander v. Telus Communications Inc., [2003] F.C.J. No. 975 at paras. 29-30 (F.C.), var. in part [2004] F.C.J. No. 1935 at paras. 47-48, suppl. reasons [2004] F.C.J. No. 440 (F.C.A.); Eastmond v. Canadian Pacific Railway, [2004] F.C.J. No. 1043 at paras. 118, 121-123 (F.C.). The preliminary question of whether the Privacy Commissioner had jurisdiction to proceed with the investigation in light of the proceedings commenced by the Applicant under Section 243 of the Canada Labour Code, R.C.S. 1985, c, L-2, as amended, following her dismissal by Alta Flights, was not pursued. However, since exemplary damages were being sought in both instances, the parties, after some discussion, agreed that these could only be awarded once, either by the labour arbitrator or by the Federal Court, should Ms. Morgan be successful in both forums. Therefore, the remaining issues that the Court had to deal with are as follows :

-           Alta Flights' actions and PIPEDA : Did Alta Flights violate any provisions of PIPEDA, and specifically those dealing with the collection and/or the use of personal information, by either recording or attempting to record employees' conversations? Does the fact that the recorded material, if any, was erased prior to being put to any use, change this answer?

-           Potential remedies : If there was a violation of the Applicant's rights under PIPEDA, what remedies are available to the Applicant? This includes the question, if it becomes necessary, of whether the Court has jurisdiction to grant additional remedies not authorized by PIPEDA.

CONCLUSION

[3]                Briefly, for the reasons stated below, I would answer the above questions as follows :

-           Since there is no evidence that any conversations were, in fact, recorded by Alta Flights, as the tape was inadvertently erased by the employees who found the recording device and all that was heard from the recording device before the erasure were the words "testing, testing, testing," Alta Flights did not actually manage to collect and/or use any personal information. Therefore, there was no violation of PIPEDA since the law of attempted breach does not exist under the Act.

-           Since there was no violation of the Applicant's rights under PIPEDA, there is no need to elaborate further on the remedies sought by the Applicant.

BACKGROUND

[4]                Ms. Morgan was employed as a Customer Service Representative with Alta Flights at the Flight Tech Aviation Shell Aerocentre (the "Aerocentre") in Edmonton, Alberta, from September 7, 2000, to April 5, 2003. On the evening of April 1, 2003, while in the "smoke room" that was ordinarily used by Alta Flights employees, as well as occasionally by other Aerocentre employees and other groups, she and another employee of Alta Flights discovered a digital recorder that had been attached to the underside of a coffee table.

[5]                A few days following this event, the Aerocentre Manager for Alta Flights, Patricia Hobbs (Ms. Hobbs), admitted she personally hid the recorder in the smoke room on the night in question with the intention of recording the conversations in that room of Ms. Morgan and a few other Alta Flights' employees. She claimed that this was necessary in order to further investigate allegations of wrongdoing by Ms. Morgan and the other targeted employees.

[6]                On April 4, 2003, Ms. Morgan and two other Alta Flights employees made a formal written complaint under PIPEDA to the Privacy Commissioner.

[7]                On April 5, 2003, Ms. Morgan was fired by Alta Flights due to a "conflict" between Ms. Hobbs and Ms. Morgan.

[8]                On May 1, 2003, Ms. Morgan filed an unjust dismissal complaint with Human Resources Development Canada. The parties have presented their respective positions in this matter, which was heard last fall, and the decision is currently under reserve.

DECISION UNDER REVIEW

[9]                Upon concluding its investigation into Ms. Morgan's complaint, the Privacy Commissioner advised Mrs. Morgan, on April 12, 2004, that although it disapproved of the actions taken by Alta Flights in seeking to collect the information in question, there was no collection of any personal information, since no recording had actually been made of the smoke room conversation. Consequently, there was no contravention of any relevant provision of PIPEDA :

Our investigation determined that the tape was erased. Consequently, there is no evidence that personal information had been collected or used. I therefore cannot find Alta Flights in contravention of any relevant provision of the Act.

Accordingly, I conclude that your complaints are not well-founded.

Notwithstanding this, Alta Flights should not interpret my finding as an approval of what the company attempted to do. Had the manager been successful in obtaining information via the digital recorder, I would not, in the circumstances, have been inclined to accept the company's reliance on paragraph 7(1)(b) to justify collecting personal information in such a manner.

Paragraph 7(1)(b) cannot be read in isolation, and therefore cannot be relied upon to justify any collection of personal information without knowledge and consent under just any circumstances. In our view, an organization must have substantial evidence to support the suspicion that the employee is engaged in wrongdoing or that the relationship of trust had been broken, must be able to show that it has exhausted all other means of obtaining the information that it required in less privacy-invasive ways, and must limit the collection to the purposes to the greatest extent possible.

In this instance, there were rumours of theft, fraud, and possible assault. But these were anecdotes, and anecdotes do not qualify as substantial evidence. Moreover, some of this information was given to the manager after she had placed the recorder in the public smoking room. Did the manager try to obtain information in a less privacy-invasive manner about these incidents before taping a digital recorder to the underside of a table? Did she alert all employees to the problems? Did she first speak with these individuals about her suspicions? It would appear that she did not.

Then there is the measure itself. A tape recorder, placed in a room accessible to many individuals, some customers, some employees, is a highly indiscriminate means of collecting information. The company contends that the timeframe of the taping limited the chance of others being recorded. Nevertheless, this was a public room, and regardless of whether a flight was scheduled to arrive that night or not, the company could not guarantee that only the complainants would be using the facility. The recorder appears to have been placed there on the off chance that some information might be captured. Such an approach to investigating possible employee wrongdoing is not privacy conscious to say the least.

The electronic surveillance of employees when there is a suspected breach of the employment contract is a measure that should never be taken lightly or easily. It should be the very last step - if taken at all - in a series of steps, approved of by a very senior level of management, to obtain information regarding employee wrongdoing and must be based on substantial evidence. The circumstances in this case, simply put, would not measure up.

SUBMISSIONS

The Applicant

[10]            It is the view of the Applicant Ms. Morgan that the Privacy Commissioner's finding fails to accord PIPEDA the broad and purposive meaning it is intended to have, and therefore also fails to respect and protect privacy rights of employees in general, as well as the Applicant in particular. She points to the purpose of PIPEDA, as stated in s. 3, as well as s. 4.3 of Schedule 1, which state :

[11]            The Applicant states that where there is a statutory right (in this case, to privacy) with no expressed sanction for a breach of such right, there is prima facie an implied right to be compensated for any breach of this right. Section 16 of PIPEDA allows for remedies, including damages to the complainant for humiliation arising from the collection and use of personal information, and the Applicant contends this should include the attempt to collect and use such information. In other words, the Applicant claims that the common law principle of attempts applies to PIPEDA, and that this Court has jurisdiction to remedy such an attempt.

[12]            Furthermore, the Applicant submits that since the recorder was tested and was clearly working, it should be assumed that a recording was successfully made and that personal information was discussed and recorded prior to the discovery of the recording device.

Alta Flights

[13]            Alta Flights recognizes and accepts the finding and conclusion of the Privacy Commissioner as accurate, based upon the facts and the provisions of the Act. It further indicates its agreement with the Privacy Commissioner's proposition that PIPEDA only provides for remedies following the unauthorized collection, use and disclosure of personal information, and that there is no authority within PIPEDA, or case-law generally, to create attempts to violate PIPEDA's provisions as a separate breach of the Act. It disagrees with the Applicant's proposition that since a test of the digital recorder was completed successfully, it should be further concluded that an actual taping of a conversation between the Applicant and her co-workers occurred.

Privacy Commissioner

[14]            After again analyzing why Alta Flights' actions, if successful, would not be covered by the exception outlined in s. 7(1)(b), the Privacy Commissioner surveys the possibility of attempts under PIPEDA. In the Privacy Commissioner's opinion, if the Court finds the tape recorder surreptitiously placed by Ms. Hobbs in the smoke room did not record any conversations of its employees, there can be no "collection" of personal information. If the Court finds that conversations were recorded prior to the inadvertent erasure of the tape, however, the Privacy Commissioner argues that contrary to the decision reached by this Court in Eastmond, supra, Alta Flights did collect personal information in violation of PIPEDA; and this, despite the fact that no Alta Flights personnel actually was able to listen to or otherwise use the content of these conversations.

[15]            Finally, the Privacy Commissioner submits that if the Court determines no actual information was ever recorded, and hence Alta Flights only attempted to violate PIPEDA, there is no jurisdiction for the Court to thereby entertain an application for a remedy arising out of this attempted breach.

ANALYSIS

Standard of Review

[16]            The Applicant submits that since the central question at issue is one of law - that is, whether the provisions of PIPEDA include a prohibition on the attempt to collect and disclose personal information - minimal deference ought to be given to the Privacy Commissioner's decision and the Court should exercise its discretion to decide the question de novo (see Englander, supra, at paras. 29-30 (F.C.), 47-48 (F.C.A.)). It should be noted that the decision of the Privacy Commissioner is not, in this case, being reviewed under ss. 47 and 48 of PIPEDA, but rather, under s. 14. Therefore, the complaint, along with all the available evidence, is to be dealt with de novo. The Court may rely on the decision of the Privacy Commissioner or certain parts of it where applicable in arriving at a determination, but it is not bound to do so.

[17]            While exercising its discretion de novo, the Court will give less deference to the decision of the Privacy Commissioner than it would otherwise, some due regard is warranted toward the factors taken into consideration by the Privacy Commissioner in balancing the privacy interests of the complainant and the employer's legitimate interest in protecting its employees and property : see Eastmond, supra at paras. 122 to 124; see also Englander, supra at para. 33 (F.C.), 71 (F.C.A.). However, the question of whether or not a breach under PIPEDA occurs when a violation is attempted, is a question of interpretation under the Act, and so should be reviewed on a standard of correctness.

Alta Flights' actions and PIPEDA

Did Alta Flights violate any provisions of PIPEDA, and specifically those dealing with the collection and/or the use of personal information by either recording or attempting to record employees' conversations? Does the fact that the recorded material, if any, was erased prior to being put to any use, change this answer?

[18]            As the Privacy Commissioner argued, if Alta Flights had successfully recorded its employees' conversations, there would be a prima facie violation of PIPEDA. This does not seem to be a fact disputed by any of the parties, Alta Flights included. Only following this finding would the debate then turn to whether Alta Flights may rely on the exemption provided for in s. 7(1)(b). This section reads as follows :

During the hearing, Alta Flights admitted that it could not rely upon this exception and that if the Court concluded that either actual personal information was recorded by Ms. Hobbs or that the attempt to record such information was also a breach under the Act, it was subject to exemplary damages.

[19]            The evidence on the record indicates that when the tape recorder was discovered by Ms. Morgan and another employee, it had captured Ms. Hobbs' testing of the device : "testing, testing, testing." However, no one has been able to clarify whether any additional information or conversations were recorded. Ms. Morgan advised she heard Ms. Hobbs' voice on the machine (while Ms. Hobbs was testing it), and then possibly nothing more; but in an attempt to determine whether anything further was on the tape, the tape was inadvertently erased. No evidence has been provided to the contrary. I cannot agree with the Applicant's submission that since a test was done before the installation of the device under the table, it is logical to assume that more information was registered by the recorder. This is not what the evidence shows. At paragraph 13 of her affidavit, the Applicant refers to an "attempted invasion of my privacy." The complaint itself, signed by the Applicant and Ms. Janice Rowe, qualifies the recording in the following manner : "we believe the intentions of this recorder were to record employees." Furthermore, during the cross-examination on her affidavit, the Applicant indicates, at pages 15, 16 and 17 of the transcript, what was on the recording device "Pat's voice was on there saying, testing, testing, testing." The only words they heard were those; therefore, the evidence cannot support a determination that more than the words "testing, testing, testing," were recorded.

[20]            In the circumstances, it can only but be determined that no conversation was recorded, and thus no personal information collected. In this case, and following the Privacy Commissioner's line of argument on this issue, there is no actual violation of PIPEDA. Under PIPEDA, there is no provision stating that the attempted collection of personal information constitutes a violation of the Act. The privacy obligations in PIPEDA are found in Schedule 1 of the Act. This outlines duties and recommendations that organizations either must, or should (depending on the case), follow when handling of personal information. These are based on the following 10 principles : Accountability; Identifying Purposes; Consent; Limiting Collection; Limiting Use, Disclosure and Retention; Accuracy; Safeguards; Openness; Individual Access; and Challenging Compliance. None of these principles, nor any provision of PIPEDA make reference to "attempts". Rather, the actions contemplated by the Act are those involving the actual collection, use and disclosure of information. The principles and provisions of PIPEDA are clearly structured so as to assume that information sought by an organization is, in fact, collected. Where statutory terms are thus clear and straightforward, they should be understood by their ordinary meaning, and the Courts should not impose additional meanings clearly not intended by Parliament : see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (Markham (Ont.) : Butterworths, 2002) at pages 19 et seq.

Potential remedies

If there was a violation of the Applicant's rights under PIPEDA, what remedies are available to the Applicant? This includes the question, if it becomes necessary, of whether the Court has jurisdiction to grant additional remedies not authorized by PIPEDA.

[21]            Since I have determined that no actual collection and/or use of private information occurred and that therefore the Applicant's rights under PIPEDA were not violated, there is no need to answer this question.

CONCLUSION

[22]            Ms. Morgan's frustration at the lack of a remedy under PIPEDA is understandable, but until Parliament indicates otherwise, one cannot take so liberal an approach to the interpretation of PIPEDA so as to change its fundamental shape and remedies. Having said this, there are other remedies available to Ms. Morgan, such as that in s. 184 of the Criminal Code, R.S.C. 1985, c. C-46, which includes the possibility of compensation up to $ 5,000.00 (see s. 194 of the Criminal Code). Other remedies may also be available to her in common law.

COSTS

[23]            Ms. Morgan also asked for her costs, on a solicitor-client basis. While I do not believe such costs would have been warranted in any case, this request must also necessarily fail as she has been ultimately unsuccessful in her application.

[24]            The Privacy Commissioner did not specifically request costs since its intervention was in the interests of justice. The Respondent has requested costs against the Applicant. I do not think that granting such a request would be in the interests of justice taking in consideration the unique nature and circumstances of this case.

                                               ORDER

THIS COURT ORDERS THAT :

­                      This application for judicial review be dismissed without costs.

                       "Simon Noël"                                                                                                                                 Judge

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1066-04

STYLE OF CAUSE:                           JANICE MORGAN v. ATLA FLIGHTS

(CHARTER) INC. AND PRIVACY COMMISSIONER OF

CANADA

PLACE OF HEARING:                     Edmonton, Alberta

DATE OF HEARING:                       March 16, 2005

REASONS FOR ORDER:                Mr. Justice Simon Noël

DATED:                                              March 29^th, 2005

APPEARANCES:

G. Brent Gawne                                                                        FOR APPLICANT

Thomas E. Plupek

FOR RESPONDENT

(Alta Flights (Charter)

Inc.)

Steven Welchner

Patricia Kosseim                                                                        FOR RESPONDENT

(Privacy Commissioner

Of Canada)

SOLICITORS OF RECORD:

G. Brent Gawne Barrister & Solicitor                                         FOR APPLICANT

Edmonton, Alberta

Zalapski & Pahl                                                                        FOR RESPONDENT

Leduc, Alberta (Alta Flights (Charter) Inc.)

Welchner Law Office                                                                

Ottawa, Ontario

Office of the Privacy Commissioner of Canada

Ottawa, Ontario                                                                        FOR RESPONDENT

(Privacy Commissioner

Of Canada)