SUPREME
COURT OF CANADA
Between:
Elizabeth
Bernard
Appellant
and
Attorney
General of Canada and
Professional
Institute of the Public Service of Canada
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, Coalition of British Columbia Businesses, Merit Canada
and Public Service Labour Relations Board
Interveners
Coram: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and
Wagner JJ.
Reasons for
Judgment:
(paras. 1 to 42)
Reasons
Dissenting in Part:
(paras. 43 to 114)
|
Abella and Cromwell JJ. (LeBel, Karakatsanis and
Wagner JJ. concurring)
Rothstein J. (Moldaver J. concurring)
|
Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1
S.C.R. 227
Elizabeth Bernard Appellant
v.
Attorney General of Canada and
Professional Institute of the
Public Service of Canada 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,
Coalition of British Columbia Businesses,
Merit Canada and
Public Service Labour
Relations Board Interveners
Indexed as: Bernard v. Canada (Attorney General)
2014 SCC 13
File No.: 34819.
2013: November 4; 2014: February 7.
Present: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis
and Wagner JJ.
on appeal from the federal court of appeal
Labour
relations — Administrative law — Standard of review — Unions — Representational
duties — Labour relations board ordering employer to disclose home contact
information of members of bargaining unit to union — Board holding that
disclosure necessary to permit union to carry out representational duties —
Individual employee challenging order on grounds that it violated her rights
under Privacy Act and s. 2(d) of Charter — Whether board’s decision
determining that order did not contravene Privacy Act was reasonable — Public
Service Labour Relations Act , S.C. 2003, c. 22, ss. 2 , 186(1) (a) —
Privacy Act, R.S.C. 1985, c. P‑21, s. 8(2) (a).
B
is a member of a bargaining unit in the federal public service, but does not
belong to the union which has exclusive bargaining rights for her bargaining
unit. In other words, she is a “Rand Formula employee” who, although not a
union member, is entitled to the benefits of the collective agreement and
representation by the union and is required to pay union dues. The union is the
exclusive bargaining agent for all members of the bargaining unit and has
representational duties — such as in collective bargaining, the grievance
process, workforce adjustments, prosecuting complaints, and conducting strike
votes — which are owed to all bargaining unit members, whether or not they are
members of the union.
In 2005, as a result
of amendments to the Public Service Labour Relations Act which
significantly expanded the union’s representational obligations, the union
sought home contact information for bargaining unit members from the employer.
The employer refused. This led to complaints to the Public Service Labour
Relations Board by the union alleging that the refusal to provide this
information constituted an unfair labour practice. The union alleged that
failure to provide it with home contact information for bargaining unit members
improperly interfered with its ability to represent them. The Board decided
that the employer’s failure to provide the union “with at least some of the
employee contact information that it requested” was an unfair labour practice
because it interfered with the representation of employees by the union.
But on remedy, the
Board asked for more information about several privacy‑related issues:
what information the union required for its representational obligations; what
employee contact information the employer had in its possession and its
accuracy; and whether the employer could meet its obligation to provide
information in a way that reasonably addressed any concerns under the Privacy
Act . The Board directed the parties to consult in order to determine
whether they could agree on disclosure terms, failing which the Board would
hold a further hearing to address the question of remedy. The parties did in
fact reach an agreement about the remedy, which the Board incorporated into a
consent order.
Under the terms of
the agreement, the employer was required to disclose to the union, on a
quarterly basis, the home mailing addresses and home telephone numbers of
members of the bargaining unit, subject to a number of conditions, all of which
related to the security and privacy of the information. The union undertook
not to disclose the information to anyone other than the appropriate union
officials; not to use, copy or compile the information for any other purpose;
and to ensure that its officials who had access to the information would comply
with all the provisions of the agreement. The employer and the union also
agreed that they would jointly advise employees as to what information would be
disclosed prior to its disclosure, and agreed on the text of that notice. An
email was accordingly sent to all bargaining unit members, including B. She
responded by seeking judicial review of the consent order.
The Federal Court of
Appeal concluded that the Board should have considered the application of the Privacy
Act to the disclosure of home contact information, rather than simply
adopting the agreement of the parties. It therefore remitted the matter to the
Board for redetermination, and directed that the Office of the Privacy
Commissioner and B be given notice of the redetermination proceedings and an
opportunity to make submissions. At that redetermination hearing, B’s position
was that disclosure of her home telephone number and address breached her
privacy rights and her Charter right not to associate with the union.
The Board concluded
that workplace contact information was insufficient to allow a bargaining agent
to meet its obligations to represent all employees in the bargaining unit and
that a bargaining agent had a right to contact all employees directly. It also
found that there was no breach of the Privacy Act in disclosing home
telephone numbers and addresses to bargaining agents because that disclosure
was consistent with the purpose for which the information was obtained and was,
as a result, a “consistent use” of the information under s. 8(2) (a)
of the Privacy Act . But it put two additional safeguards in place: the
information was to be provided to the union only on an encrypted or password‑protected
basis, and expired home contact information was to be appropriately disposed of
after updated information was provided. Because the Board concluded that the
directions of the Federal Court of Appeal required it to undertake only the
assessment of the privacy rights of the employees in the bargaining unit, it
did not address B’s Charter arguments.
B again sought
judicial review. The Federal Court of Appeal concluded that the Board’s
decision that the union needed employees’ home contact information in order to
fulfill its representational duties was reasonable, and that the union’s use of
home contact information was a “consistent use” under s. 8(2) (a) of
the Privacy Act .
Held
(Rothstein and Moldaver JJ. dissenting in part): The appeal
should be dismissed.
Per
LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.: The standard of
review applicable to the Board’s decision is reasonableness. In the labour
relations context in which B’s privacy complaints arose, the Board’s decision
was reasonable.
A union has the
exclusive right to bargain on behalf of all employees in a given bargaining
unit, including Rand employees. The union is the exclusive agent for those
employees with respect to their rights under the collective agreement and the
union must represent those employees fairly and in good faith. While an
employee is undoubtedly free not to join the union and to decide to become a
Rand employee, he or she may not opt out of the exclusive bargaining
relationship, nor the representational duties that a union owes to employees.
The Public Service
Labour Relations Act imposes a number of specific duties on a union with
respect to employees in the bargaining unit. These include a duty to provide
all employees in the bargaining unit with a reasonable opportunity to
participate in strike votes and to be notified of the results of such votes.
An employee cannot waive his or her right to be fairly — and exclusively —
represented by the union. Given that the union owes legal obligations to all
employees — whether or not they are Rand employees — and may have to
communicate with them quickly, the union should not be deprived of information
in the hands of the employer that could assist in fulfilling those obligations.
The union needs
effective means of contacting employees in order to discharge its
representational duties. Work contact information is insufficient to enable
the union to carry out its duties to bargaining unit employees for a number of
reasons: it is not appropriate for a bargaining agent to use employer
facilities for its business; workplace communications from bargaining agents
must be vetted by the employer before posting; there is no expectation of
privacy in electronic communications at the workplace; and the union must be
able to communicate with employees quickly and effectively. An employer can
control the means of workplace communication, can implement policies that
restrict all workplace communications, including with the union, and can
monitor communications. In addition, the union may have representational
duties to employees whom it cannot contact at work, such as employees who are
on leave, or who are not at work because of a labour dispute.
The intersecting
privacy concerns emerge from the Privacy Act . It imposes a ban on disclosure
of government‑held personal information, which includes home addresses
and telephone numbers, subject to a number of exceptions listed in s. 8(2) ,
including the “consistent use” exception. A use need not be identical to the
purpose for which information was obtained in order to fall under s. 8(2) (a)
of the Privacy Act ; it must only be consistent with that purpose. There
need only be a sufficiently direct connection between the purpose and the
proposed use, such that an employee would reasonably expect that the
information could be used in the manner proposed. The union needed employee
home contact information to represent the interests of employees, a use
consistent with the purpose for which the government employer collected the
information, namely, to contact employees about the terms and conditions of
their employment. The information collected by the employer was for the
appropriate administration of the employment relationship. This purpose is
consistent with the union’s intended use of the contact information.
The Board was
entitled to conclude that its mandate on the redetermination was limited to the
question of how much home contact information the employer could disclose to
the union without infringing an employee’s rights under the Privacy Act ,
and did not include B’s argument that requiring an employer to provide a
bargaining agent with the home address and phone number of its employees
breached her right to freedom of association under s. 2(d) of the Charter.
The compelled disclosure of home contact information in order to allow a union
to carry out its representational obligations to all bargaining unit members
does not engage B’s freedom not to associate with the union. In any event,
that argument had no merit and was clearly bound to fail, whenever and wherever
asserted. B’s s. 8 Charter argument alleging that the disclosure
constituted an unconstitutional search and seizure similarly had no merit.
Per Rothstein
and Moldaver JJ. (dissenting in part): This appeal is
about a tribunal wrongly declining to exercise its jurisdiction to consider Charter
arguments. Where a tribunal does not respond to a constitutional
challenge because of a mistaken understanding of its jurisdiction, it is
wrongfully declining the jurisdiction that it not only has, but that it must
exercise. That constitutes an error of law.
The Public
Service Labour Relations Board made a reasonable decision in holding that
s. 186(1)(a) of the Public Service Labour Relations Act requires
the employer to disclose some employee contact information to the union and
that this complies with s. 8(2) (a) of the Privacy Act . The
Board, however, incorrectly declined to determine B’s s. 2 (d) Charter
arguments. The Board possessed both the authority and the duty to decide
her Charter arguments. It would be inconsistent with this Court’s
jurisprudence to hold that a reviewing court can exclude such a fundamental
aspect of the Board’s jurisdiction. In holding that the Board was barred from
determining B’s Charter arguments on reconsideration, both the Board and
the Federal Court of Appeal erred in law. This jurisdictional error resulted
in a denial of procedural fairness insofar as B was deprived of her right to
make her Charter submissions and have them considered and ruled upon.
Pursuant
to the two‑step test in Quan v. Cusson, this Court should address
B’s s. 2 (d) and s. 8 Charter arguments. The mere
provision of B’s home address and telephone number to the bargaining agent
cannot be characterized as forced association, nor does it amount to compelled
ideological conformity. Accordingly, there is no violation of freedom from
association under s. 2(d) of the Charter. The disclosure of
B’s home contact information to the union does not trigger the protection of s. 8
of the Charter because B did not have a reasonable expectation of
privacy in the personal information disclosed. In any event, the disclosure
cannot constitute a “seizure” for the purposes of s. 8 of the Charter
since the information was disclosed to an employee organization and not the
state.
The
appeal should be allowed, but only in respect of the Federal Court of
Appeal’s order of costs payable by B to the respondents.
Cases Cited
By Abella and Cromwell JJ.
Referred
to: Millcroft Inn Ltd. and CAW‑Canada, Local 448 (2000),
63 C.L.R.B.R. (2d) 181; Monarch Transport Inc. and Dempsey Freight Systems
Ltd., 2003 CIRB 249 (CanLII); P. Sun’s Enterprises (Vancouver) Ltd.
and CAW‑Canada, Local 114 (2003), 99 C.L.R.B.R. (2d) 110; Lavigne
v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v.
Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209.
By Rothstein J. (dissenting in
part)
Public
Service Alliance of Canada v. Treasury Board (Canada Border Services Agency),
2012 PSLRB 58 (CanLII); Canadian National Railway Company (1994), 95 di
78; Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. 1411; CFTO‑TV
Limited (1995), 97 di 35; Ford Glass Limited, [1986] OLRB Rep. 624;
Canada Post Corporation (1994), 96 di 48; York University, [2007]
OLRB Rep. 659; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Quan
v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712; Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654; Lavigne v. Ontario Public Service Employees Union, [1991]
2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70,
[2001] 3 S.C.R. 209; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada
Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; R. v. Cole,
2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Plant, [1993] 3 S.C.R. 281; R.
v. Dyment, [1988] 2 S.C.R. 417.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 2 (d), 8 .
Privacy Act, R.S.C. 1985, c. P‑21,
s. 8(2) (a).
Public Service Labour Relations Act ,
S.C. 2003, c. 22 [as en. by Public Service Modernization Act , S.C.
2003, c. 22, s. 2 ], ss. 36 , 42 , 183 , 184 , 185 , 186(1) (a),
190(1) (b), (g).
APPEAL
from a judgment of the Federal Court of Appeal (Blais C.J. and Evans and
Sharlow JJ.A.), 2012 FCA 92, 431 N.R. 317, 347 D.L.R. (4th) 577, [2012]
F.C.J. No. 467 (QL), 2012 CarswellNat 1077, affirming a decision of the Public
Service Labour Relations Board, 2011 PSLRB 34, [2011] C.P.S.L.R.B. No. 36
(QL), 2011 CarswellNat 1296. Appeal dismissed, Rothstein and Moldaver JJ.
dissenting in part.
Elizabeth
Bernard, on her own behalf.
Anne M.
Turley, for the respondent the Attorney General of
Canada.
Peter C.
Engelmann, Colleen Bauman and Isabelle Roy,
for the respondent the Professional Institute of the Public Service of Canada.
Michael A.
Feder and Angela M. Juba, for the amicus
curiae.
S. Zachary
Green, for the intervener the Attorney General of
Ontario.
Keith
Evans, for the intervener the Attorney General of
British Columbia.
Roderick S.
Wiltshire, for the intervener the Attorney General
of Alberta.
Andrew
Raven, for the intervener the Public Service
Alliance of Canada.
Eugene
Meehan, Q.C., Patricia Kosseim and Kate
Wilson, for the intervener the Privacy Commissioner of Canada.
Written submissions only by Hugh J. D. McPhail,
Q.C., for the intervener the Canadian Association of Counsel to Employers.
Timothy
Gleason and Sean Dewart, for the intervener the
Canadian Civil Liberties Association.
Mark A.
Gelowitz and Gerard J. Kennedy, for the
intervener the Canadian Constitution Foundation.
John R.
Carpenter and Kara O’Halloran, for the
intervener the Alberta Federation of Labour.
Written submissions only by Andrea Zwack and Simon Ruel,
for the interveners the Coalition of British Columbia Businesses and Merit
Canada.
John B.
Laskin, for the intervener the Public Service Labour
Relations Board.
The
judgment of LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. was delivered
by
[1]
Abella and
Cromwell JJ. —The Public
Service Labour Relations Board concluded that an employer was required to
provide home contact information about bargaining unit members to the union
which represents them because this information is needed by the union in order
to carry out its representational duties. At the same time, however, the union
must ensure that the information is kept secure and is used only for
representational purposes. The main issue in this appeal is whether that
decision was reasonable. We conclude that it was.
Background
[2]
Elizabeth Bernard is the protagonist in a legal
odyssey which has found its way through three administrative tribunal
proceedings, two rounds of judicial review in the Federal Court of Appeal and
now an appeal to this Court. She is a member of a bargaining unit in the
federal public service, but does not belong to the union which has exclusive
bargaining rights for her bargaining unit. In labour relations terms, this
means that Ms. Bernard is a “Rand Formula employee”; in other words, although
she is not a union member, she is entitled to the benefits of the collective
agreement and representation by the union and is required to pay union dues.
The union is the exclusive bargaining agent for all members of
the bargaining unit and has representational duties — such as in collective
bargaining, the grievance process, workforce adjustments, prosecuting
complaints, and conducting strike votes. Those duties are owed to all
bargaining unit members, whether or not they are members of the union. While
Ms. Bernard has a right not to become a union member, she does not have the
right to opt out of the union’s role as exclusive bargaining agent for all
bargaining unit employees, including her.
[3]
In early 1992, Ms. Bernard filed a complaint
with the Office of the Privacy Commissioner because her employer was giving her
home address to the union. In May 1993, the Office of the Privacy Commissioner
concluded that such disclosure was not permitted under the Privacy Act,
R.S.C. 1985, c. P-21 , without the employee’s consent. As a result, the
employer decided to discontinue the practice. The Office of the Privacy
Commissioner had no adjudicative or order-making authority and the conclusions
reached by that office did not confer any rights on Ms. Bernard or anyone else.
[4]
In 1995, Ms. Bernard changed jobs within the
federal public service and became a member of a bargaining unit represented by the
Professional Institute of the Public Service of Canada. Once again, she did not
join the union and was a “Rand Formula employee” in her new bargaining unit.
[5]
In 2005, there were amendments to the Public
Service Labour Relations Act, S.C. 2003, c. 22, s. 2 , which significantly
expanded the union’s representational obligations. Because of these new duties
the union was of the view that it required home contact information for
bargaining unit members. It sought that information from the employer in order to
carry out these obligations. The employer refused. This led to consolidated
complaints in September 2007 by the union alleging that the refusal to provide
this information constituted an unfair labour practice. The union alleged that
failure to provide it with bargaining unit member home contact information
improperly interfered with its ability to represent bargaining unit members.
The parties to the consolidated complaints were, as is always the case, the
employers (the Treasury Board of Canada and the Canada Revenue Agency) and the
union in its capacity as exclusive bargaining agent for the bargaining unit
members. As is the usual practice, Ms. Bernard was not given individual notice
of the proceedings at this point, in common with the tens of thousands of other
bargaining unit members for whom the union had exclusive bargaining rights and
whose personal information was at issue in the consolidated complaints.
[6]
As a remedy, the union sought an order requiring
the employer to provide the names, position titles, telephone numbers, and home
and email addresses for all employees in six nation-wide bargaining units,
including the bargaining unit of which Ms. Bernard was a member.
[7]
In response, the employer did not dispute the
jurisprudence relied on by the union endorsing the requirement to disclose
personal information to unions for legitimate bargaining purposes. In other
words, the employer did not dispute the premise of the union’s complaint that
it had to provide some employee information and that failure to do so could
constitute an unfair labour practice. However, the employer raised some
practical concerns about employee privacy and about the accuracy and
completeness of its own information. The employer placed before the Board an
opinion obtained from the Office of the Privacy Commissioner addressing these
points. The Board decided that “in principle”, the employer’s failure to
provide the union “with at least some of the employee contact information that
it requested” was an unfair labour practice because it interfered with the
representation of employees by the union within the meaning of s. 186(1) (a)
of the Public Service Labour Relations Act . It pointed particularly to
the union’s responsibilities in connection with the conduct of a strike vote
(s. 184 ) and a final-offer vote (s. 183 ) as “legitimate representational
purposes” that justified the disclosure of the kind of personal information
sought by the union. In so concluding, the Board relied on an extensive body of
jurisprudence holding that employee contact information must be disclosed to
the union by the employer for these purposes: Millcroft Inn Ltd. and
CAW-Canada, Local 448 (2000), 63 C.L.R.B.R. (2d) 181 (Ont.) (“Millcroft”);
Monarch Transport Inc. and Dempsey Freight Systems Ltd., 2003 CIRB 249
(CanLII); P. Sun’s Enterprises (Vancouver) Ltd. and CAW-Canada, Local 114
(2003), 99 C.L.R.B.R. (2d) 110 (B.C.).
[8]
On the question of remedy, the Board was clearly
alive to the privacy issues canvassed in the Privacy Commissioner’s opinion and
indicated that it did not have a sound basis upon which to address those
issues. The Board asked for more information about several privacy-related
issues, including: what information the union required for its representational
obligations; what employee contact information the employer had in its
possession and its accuracy; and whether the employer could meet its obligation
to provide information in a way that reasonably addressed any concerns under
the Privacy Act . The Board directed the parties to consult in
order to determine whether they could agree on disclosure terms, failing which
the Board would hold a further hearing to address the question of remedy.
[9]
The parties did in fact reach an agreement about
the remedy and gave the Board a draft consent order, which the Board
incorporated into an order on July 18, 2008.
[10]
Under the terms of the agreement, the employer
was required to disclose to the union, on a quarterly basis, the home mailing
addresses and home telephone numbers of members of the bargaining unit, subject
to a number of conditions, all of which related to the security and privacy of
the information. The union recognized “the sensitivity of the information
being disclosed” and undertook in the agreement to “ensure vigilant management
and monitoring controls on this information at all times”. In particular, it
undertook not to disclose the information to anyone other than the appropriate
union officials; not to use, copy or compile the information for any other
purpose; and to ensure that its officials who had access to the information
would comply with all the provisions of the agreement.
[11]
The employer and the union also agreed that they
would jointly advise employees as to what information would be disclosed prior
to its disclosure, and agreed on the text of that notice. An email was
accordingly sent to all bargaining unit members on October 16, 2008, including
Ms. Bernard, who responded by seeking judicial review of the consent order,
claiming that (a) the Board’s order required the employer to violate the Privacy
Act by disclosing her personal information without her consent; (b) the
Board must defer to the Office of the Privacy Commissioner and in particular
its 1993 disposition of her complaint; (c) she ought to have been given notice
of the proceedings before the Board; and (d) the Board’s order breached her Charter
right not to associate with the union.
[12]
The Federal Court of Appeal (Blais C.J.,
Pelletier and Trudel JJ.A.) confirmed that the Board’s initial decision was
that “some” contact information must be provided, and noted that that decision
was not under review. Nor was the Board’s decision that the failure to provide
such information amounts to interference in the administration of the union.
The issue before it, instead, was “the nature of the information to be provided
and the circumstances under which it must be provided”.
[13]
The Federal Court of Appeal concluded that the
Board should have considered the application of the Privacy Act to the
disclosure of home contact information under the Public Service Labour
Relations Act , rather than simply adopting the agreement arrived at
by the parties. It therefore remitted the matter to the Board for
redetermination, and directed that the Office of the Privacy Commissioner and
Ms. Bernard be given notice of the redetermination proceedings and an
opportunity to make submissions. It did not deal with Ms. Bernard’s freedom of
association argument, nor with her argument that she ought to have been given
notice of the prior proceedings before the Board.
[14]
At the redetermination hearing, the Privacy
Commissioner acknowledged that the Board was entitled to order disclosure of
personal information pursuant to the Public Service Labour Relations Act ,
referring to its 1993 decision as a “non-binding report of findings” to
Ms. Bernard and her employer (emphasis added). However, the Commissioner urged
the Board “to carefully consider what personal information is minimally
required from the employer” to satisfy the union’s representational
obligations, to explore “alternative ways” for the union to meet its statutory
obligations, and to “ensure adequate safeguards for all employee personal
information, and the implementation of privacy best practices”.
[15]
Ms. Bernard’s position was that disclosure of
her home telephone number and address breached her privacy rights and her right
not to associate with the union. The Board addressed all of the privacy
concerns raised by Ms. Bernard and the Commissioner. It concluded that work
contact information was insufficient to allow a bargaining agent to meet its
obligations to represent all employees in the bargaining unit. In its view, “a
bargaining agent has a right to contact all employees directly — relying on
employees going to a website or talking to a steward does not meet that
obligation”: 2011 PSLRB 34 (CanLII), at para. 164.
[16]
The Board ultimately turned to the question of
whether the consent order properly protected the privacy interests of
employees. It noted the following privacy-enhancing features of the original
consent order: the union could use the home contact information only for
legitimate purposes under the Public Service Labour Relations Act and
not for any other purposes; and it could not disclose the information to anyone
other than those officials responsible for fulfilling its obligations. The
Board also noted that the union had specifically undertaken to be bound by the
principles of the Privacy Act and regulations and the principles of the
Government Security Policy in effect at the time. Nonetheless, it put two
additional safeguards in place: the information should be provided to the union
only on an encrypted or password-protected basis, and expired home contact
information had to be appropriately disposed of after updated information was
provided.
[17]
There was no breach of the Privacy Act in
disclosing home telephone numbers and addresses to bargaining agents because
that disclosure was consistent with the purpose for which the information was
obtained and was, as a result, a “consistent use” of the information under s.
8(2) (a) of the Privacy Act .
[18]
Because the Board concluded that the directions
of the Federal Court of Appeal required it to undertake only the assessment of
the privacy rights of the employees in the bargaining unit, it did not address
Ms. Bernard’s freedom of association argument.
[19]
Ms. Bernard again sought judicial review. The
Federal Court of Appeal (Blais C.J., Evans and Sharlow JJ.A.) concluded that
the Board’s decision was subject to a reasonableness standard of review. It
also concluded that the Board’s decision was reasonable in finding that the
union needed employees’ home contact information in order to fulfill its
representational duties and that the union’s use of home contact information
was a “consistent use” under s. 8(2) (a) of the Privacy Act .
[20]
We agree that the standard of review is
reasonableness. For the following reasons, we also agree with the conclusion
that the Board’s decision was reasonable.
Analysis
[21]
It is important to understand the labour relations context in which Ms.
Bernard’s privacy complaints arise. A key aspect of that context is the principle of majoritarian exclusivity, a cornerstone of labour
relations law in this country. A union has the exclusive right to
bargain on behalf of all employees in a given bargaining unit, including
Rand employees. The union is the exclusive agent for those employees
with respect to their rights under the collective agreement. While
an employee is undoubtedly free not to join the union and to decide to become a
Rand employee, he or she may not opt out of the exclusive bargaining
relationship, nor the representational duties that a union owes to employees.
[22]
The nature of the union’s representational duties is an important
part of the context for the Board’s decision. The union must represent all
bargaining unit employees fairly and in good faith. The Public
Service Labour Relations Act imposes a number of specific duties on a union
with respect to employees in the bargaining unit. These include a duty to
provide all employees in the bargaining unit with a reasonable opportunity to
participate in strike votes and to be notified of the results of such votes (s.
184 ). According to the Board, similar obligations apply to the conduct of final-offer
votes under s. 183 of the Act.
[23]
This is the context in which to consider the
reasonableness of the Board’s findings that disclosure of home contact
information is required under the Public Service Labour Relations Act
and authorized by s. 8(2) (a) of the Privacy Act . The relevant
provisions of the Public Service Labour Relations Act state:
185.
[Meaning of “unfair labour practice”] In this Division, “unfair labour
practice” means anything that is prohibited by subsection 186(1) or (2) ,
section 187 or 188 or subsection 189(1) .
186. [Unfair
labour practices — employer] (1) Neither the employer nor a person who occupies
a managerial or confidential position, whether or not the person is acting on
behalf of the employer, shall
(a)
participate in or interfere with the formation or administration of an employee
organization or the representation of employees by an employee organization . .
.
[24]
The Board found that the employer’s refusal to
disclose employee home contact information constituted an unfair labour
practice because it interfered with the union’s representation of employees.
Two rationales fueled this conclusion. The first is that the union needs effective
means of contacting employees in order to discharge its representational
duties. This was explained in Millcroft, where the Ontario Labour
Relations Board extensively reviewed a union’s duties and concluded that the
union “must be able to communicate effortlessly with the employees” and “should
have [their contact information] without the need to pass through the obstacles
suggested by the employer” in order to discharge those representational duties:
para. 33.
[25]
The Board explained why employee work
contact information was insufficient to enable the union to carry out its
duties to bargaining unit employees: it is not appropriate for a bargaining
agent to use employer facilities for its business; workplace communications
from bargaining agents must be vetted by the employer before posting; there is
no expectation of privacy in electronic communications at the workplace; and
the union must be able to communicate with employees quickly and effectively,
particularly when they are dispersed.
[26]
The second and more theoretical rationale for
the employer’s obligation to disclose home contact information is that the
union must be on an equal footing with the employer with respect to information
relevant to the collective bargaining relationship. Disclosure of personal
information to the union is not like disclosure of personal information to the
public because of the tripartite relationship between the employee, the
employer and the union. To the extent that the employer has information which
is of value to the union in representing employees, the union is entitled to
it. This was explained as follows in Millcroft:
A consequence of the union
possessing exclusive bargaining status on behalf of the employees is that the
union is placed in an equal bargaining position with the employer in its
collective bargaining relationship. To the extent that the employer has
information which is of value to the union in its capacity to represent the
employees (such as their names, addresses and telephone numbers), the union too
should have that information. The employees’ privacy rights are compromised (no
doubt legitimately) by the employer having details of their names, addresses
and telephone numbers. The union’s acquisition of that information would be no
greater compromise, nor any less legitimate. [para. 31]
[27]
The Board’s conclusions are clearly justified.
The union’s need to be able to communicate with employees in the bargaining
unit cannot be satisfied by reliance on the employer’s facilities. As the Board
observed, the employer can control the means of workplace communication, can
implement policies that restrict all workplace communications, including with
the union, and can monitor communications. Moreover, the union may have
representational duties to employees whom it cannot contact at work, such as
employees who are on leave, or who are not at work because of a labour dispute.
[28]
The second rationale — equality of information
between the employer and the union — further supports the Board’s conclusion.
The tripartite nature of the employment relationship means that information
disclosed to the employer that is necessary for the union to carry out its
representational duties should be disclosed to the union in order to ensure
that the union and employer are on an equal footing with respect to information
relevant to the collective bargaining relationship.
[29]
Moreover, an employee cannot waive his or her
right to be fairly — and exclusively — represented by the union. Given that
the union owes legal obligations to all employees — whether or not they
are Rand employees — and may have to communicate with them quickly, the union
should not be deprived of information in the hands of the employer that could
assist in fulfilling these obligations.
[30]
This brings us to the intersecting privacy
concerns. The Privacy Act imposes a ban on disclosure of government-held
personal information, which includes home addresses and telephone numbers,
subject to a number of exceptions listed in s. 8(2) , including the consistent
use exception:
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;
[31]
A use need not be identical to the purpose for
which information was obtained in order to fall under s. 8(2) (a) of the Privacy
Act ; it must only be consistent with that purpose. As the Federal
Court of Appeal held, there need only be a sufficiently direct connection
between the purpose and the proposed use, such that an employee would
reasonably expect that the information could be used in the manner proposed.
[32]
The Board concluded that the union needed
employee home contact information to represent the interests of employees, a
use consistent with the purpose for which the government employer collected the
information, namely, to contact employees about the terms and conditions of
their employment. The information collected by the employer was for the
appropriate administration of the employment relationship. As the Board noted,
“[e]mployees provide home contact information to their employers for the
purpose of being contacted about their terms and conditions of employment. This
purpose is consistent with the [union]’s intended use of the contact
information in this case”: para. 168 (emphasis added).
[33]
In our view, the Board made a reasonable
determination in identifying the union’s proposed use as being consistent with
the purpose of contacting employees about terms and conditions of employment
and in concluding that the union needed this home contact information to carry
out its representational obligations “quickly and effectively”: para. 167.
[34]
Ms. Bernard also argued that requiring an
employer to provide a bargaining agent with the home address and home phone
number of its employees breaches her right to freedom of association under s.
2 (d) of the Charter and that the Board should have considered
this point.
[35]
The Federal Court of Appeal agreed with the
Board that its mandate on the redetermination as set out in the Court of
Appeal’s earlier decision was limited to the question of how much home contact
information the employer could disclose to the union without infringing an
employee’s rights under the Privacy Act . It was argued that the Court
of Appeal erred in this regard. However, that view was clearly not shared by
Blais C.J., who was the president of the panel in both proceedings
before the Court of Appeal. Giving some weight to the Court of Appeal’s
interpretation of its own order in these circumstances is not so much a matter
of deference as of operating on the common-sense assumption that the Court knew
what it meant. We would hesitate to say that the Board made a reviewable error
by interpreting the Court of Appeal’s order in the same way that court itself
did or by failing to deal with an issue that manifestly has no merit. But we
see no need to reach any final view on this point.
[36]
This is one of the exceptional cases in which
this Court is in a position to address those arguments now, and it can be done
very summarily. They have no merit. Even if the Federal Court of Appeal erred
with respect to the scope of the Board’s reconsideration, Ms. Bernard’s s. 2 (d)
and s. 8 Charter arguments that were supposedly neglected were clearly
bound to fail, whenever and wherever asserted.
[37]
Ms. Bernard’s freedom of association argument
has no legal foundation. Her argument was that since the Board’s order required
the employer to provide her personal information to the union, she was thereby
being compelled to associate with the union, contrary to s. 2 (d) of the Charter .
In our view, the compelled disclosure of home contact information in order to
allow a union to carry out its representational obligations to all bargaining
unit members does not engage Ms. Bernard’s freedom not to associate with the
union. This Court’s decision in Lavigne v. Ontario Public Service Employees
Union, [1991] 2 S.C.R. 211, is determinative and its conclusion is
supported by the more recent decision in R. v. Advance Cutting & Coring
Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209.
[38]
In Lavigne, the Court concluded that the
payment by Rand Formula employees of union dues for the purposes of collective
bargaining did not amount to unjustified “compelled association” under s. 2(d).
Even though s. 2(d) protected freedom from association as well as
freedom of association, the majority concluded that s. 2(d) does
not provide protection from all forms of involuntary association, and was not
intended to protect against association with others that is a necessary and
inevitable part of membership in a modern democratic community. In other words,
s. 2(d) is not a constitutional right to isolation: Lavigne, at
pp. 320-21. While in Advance Cutting & Coring three different
approaches to the right not to associate emerged, on none of them would Ms.
Bernard have a plausible s. 2(d) claim.
[39]
As La Forest J. explained in Lavigne: “.
. . a [Rand Formula] worker like Lavigne would have no chance of succeeding if
his objection to his association with the Union was the extent that it
addresses itself to the matters, the terms and conditions of employment for
members of his bargaining unit, with respect to which he is ‘naturally’
associated with his fellow employees. . . . With respect to these, the Union
is simply viewed as a reasonable vehicle by which the necessary
interconnectedness of Lavigne and his fellow workers is expressed” (p. 329).
[40]
In the case before us, providing Ms. Bernard’s
home contact information to the union was reasonably found by the Board to be a
necessary incident of the union’s representational obligations to her as a
member of the bargaining unit. Based on the Court’s jurisprudence, therefore,
Ms. Bernard’s freedom from association claim has no legal foundation.
[41]
Ms. Bernard’s s. 8 Charter argument
alleging that the disclosure constituted an unconstitutional search and seizure
similarly has no merit. As the Attorney General of Canada correctly points
out, in this context there can be no reasonable expectation of privacy in that
information.
[42]
We would dismiss the appeal without costs.
There will be no costs on the application for leave to appeal.
The
reasons of Rothstein and Moldaver JJ. were delivered by
Rothstein J. (dissenting in part) —
I.
Introduction
[43]
Where a tribunal does not respond to a
constitutional challenge, including a Canadian Charter of Rights and
Freedoms challenge, because of a mistaken understanding of its
jurisdiction, it is wrongfully declining the jurisdiction that it not only has,
but that it must exercise. And it does not matter whether the tribunal refuses
to even listen to the arguments, or says, having listened to them, that it is
not responding to the arguments because it is not authorized to do so. In such
circumstances the effect is a denial of procedural fairness to the affected
litigant. However, where the reason for the failure is a misapprehension on the
part of the tribunal on the scope of its authority, the error is more
appropriately branded an error of law.
[44]
This is the case of a self-represented litigant
and the repeated denial by the tribunal and the Federal Court of Appeal to hear
and determine the Charter arguments made by her. It is significant in
this case that the litigant is attempting to restore the longstanding privacy
arrangements that she had previously succeeded in obtaining and that have now
been taken away from her. It is important that such a litigant not be left to
question a justice system that does not respond to Charter arguments
made in the course of litigation. That is the main
issue in this appeal.
[45]
This is not to say that tribunals do not have
discretion to decline to engage in an analysis of Charter arguments that
are, in their opinion, manifestly without merit. No tribunal is bound to
consider such arguments. But that is not this case. This appeal is not about a
tribunal exercising its discretion to decline to address non-meritorious
Charter arguments. It is about a tribunal wrongly declining to exercise
its jurisdiction to consider Charter arguments.
II.
Facts and Decisions
Below
A.
Background
[46]
The appellant, Elizabeth Bernard, is a
self-represented litigant who has diligently sought to protect her privacy
rights in the employment context for over 20 years.
[47]
Throughout her career as a federal public
servant, Ms. Bernard has declined to join a union, as is her right. As an employee
under the “Rand formula”, however, Ms. Bernard is still obligated to pay union
dues.
[48]
Ms. Bernard began her career as a federal public
servant with Revenue Canada — Taxation (now the Canada Revenue Agency (“CRA”))
in 1991. She was a member of what was then the Professional and Management
group. In 1992, the bargaining agent for that group, the Public Service
Alliance of Canada (“PSAC”), sent Ms. Bernard a letter to her home. Upon
inquiry, the CRA’s human resources department told Ms. Bernard that the CRA had
provided her home address and other personal information to PSAC. Ms. Bernard
thereupon filed a complaint with the Office of the Privacy Commissioner (“OPC”)
alleging that the employer had disclosed her home address and Social Insurance
Number (“SIN”) to PSAC without her consent.
[49]
In May 1993, the OPC notified Ms. Bernard that
her complaint had been upheld. And, in response to the OPC’s recommendations,
Treasury Board of Canada officials ceased disclosing employees’ home addresses
and SINs. Ms. Bernard thought this concluded the matter.
B. Professional Institute of the Public Service of Canada v. Treasury
Board and Canada Revenue Agency, 2008 PSLRB 13 (CanLII) (“PIPSC 1”)
[50]
In 1995, Ms. Bernard accepted a position at the
CRA with a different job classification, which was subsequently reclassified as
Audit, Financial and Scientific (“AFS”). The Professional Institute of the
Public Service of Canada (“PIPSC”) is the bargaining agent for this group.
[51]
In 2007, PIPSC filed complaints against the
Treasury Board and the CRA under s. 190(1) (b) and (g) of the Public
Service Labour Relations Act , enacted by the Public Service
Modernization Act , S.C. 2003, c. 22 s. 2 (“PSLRA ”). PIPSC alleged,
amongst other things, that the employers’ failure to provide requested employee
contact information meant that it had failed to bargain in good faith and
constituted an unfair labour practice under ss. 185 and 186(1) of the PSLRA .
The union had requested employees’ names and position titles, as well as work
and home telephone numbers, fax numbers, mailing addresses, and email
addresses.
[52]
In its February 2008 interim decision, the
Public Service Labour Relations Board (“Board”) held that the employers’
“failure to provide the complainant with at least some of the employee contact
information that it requested” constituted interference in the representation
of employees within the meaning of s. 186(1) (a) of the PSLRA (para.
67). The Board directed the parties to reach an agreement on how much contact
information had to be disclosed to the union in order to meet the requirements
of the PSLRA .
[53]
Ms. Bernard was neither a party to this
proceeding, nor did she receive notice of it.
C.
Professional Institute of the Public Service of
Canada v. Canada Revenue Agency, 2008 PSLRB 58 (CanLII)
(“PIPSC 2”)
[54]
Following PIPSC 1, the CRA and the union
came to an agreement and requested that its terms be incorporated into an order
of the Board.
[55]
Accordingly, on July 18, 2008, the Board issued
a consent order. Under its terms, the CRA undertook to disclose to PIPSC on a
quarterly basis the home addresses and telephone numbers of the AFS bargaining
unit’s members that the employer had in its human resources information system.
PIPSC undertook to use that information only for the purposes of enabling it to
fulfil its PSLRA representational obligations as exclusive bargaining
agent, and to ensure that the personal information was securely stored and
protected.
[56]
Ms. Bernard was not a party to this proceeding.
However, the CRA notified employees by email of the Board’s decision on October
16, 2008. Ms. Bernard received this email on October 20, 2008, upon
returning to work from leave. She promptly filed a motion for, and was granted
an extension of time to file an application for judicial review of the Board’s PIPSC
2 decision. She filed her application for judicial review on December 17,
2008.
D.
Bernard v. Canada (Attorney General), 2010 FCA
40, 398 N.R. 325 (“Bernard 1”)
[57]
On judicial review, Ms. Bernard argued that the
Board’s order, mandating that the employer provide her home address and phone
number to PIPSC, violated her privacy rights and infringed her s. 2 (d) Charter
right to freedom from association. She also argued that, as a party interested
in the outcome of the Board’s proceedings, she ought to have been given notice
of the proceedings and a chance to participate.
[58]
The Federal Court of Appeal granted Ms.
Bernard’s application for judicial review on the privacy ground, holding that
the Board erred by simply adopting the agreement between the employer and the
union without considering the privacy rights of parties not involved in the
proceedings. The court declined to address Ms. Bernard’s s. 2 (d) Charter
argument, stating that it was “premature to deal with the issues of the
violation of Ms. Bernard’s right of freedom of association” (para. 45).
[59]
Consequently, the court remitted the matter to
the Board for “re-determination and for a reasoned decision as to the
information which the employer must provide the union in order to allow the
latter to discharge its statutory obligations” (para. 42). The court further
ordered the Board to give notice to Ms. Bernard of the proceedings and to
give her the opportunity to participate.
E.
Professional Institute of the Public Service of
Canada v. Canada Revenue Agency, 2011 PSLRB 34 (CanLII) (“PIPSC 3”)
[60]
The Board heard submissions from the parties and
from interveners, including Ms. Bernard. Although Ms. Bernard once again raised
her s. 2 (d) Charter argument, the Board refused to address it, holding
that the Federal Court of Appeal’s directions in Bernard I limited it to
a reconsideration of the consent order in light of employees’ privacy rights.
[61]
The Board concluded that its PIPSC 2 order
complied with s. 8(2) (a) of the Privacy Act, R.S.C. 1985, c. P-21 .
The Board nevertheless amended the order, inserting the following further
privacy safeguards: home contact information transmitted by the employer must
be password protected or encrypted; the employer must advise employees on their
initial appointment to a position in the bargaining unit that their home
contact information will be shared with the union; and, when the union receives
updated information from the employer, outdated home contact information must
be appropriately disposed of.
F.
Bernard v. Canada (Attorney General), 2012 FCA
92, 431 N.R. 317 (“Bernard II”)
[62]
Ms. Bernard brought an application for judicial
review to set aside the Board’s decision in PIPSC 3. She argued, amongst
other things, that the Board erred in declining to consider her Charter arguments.
The Federal Court of Appeal rejected this argument on the basis that its order
in Bernard I limited the Board’s jurisdiction to determining how much
contact information the CRA could disclose to PIPSC without infringing
employees’ privacy rights.
[63]
The court went on to conclude that the Board’s
decision was reasonable, and dismissed the application for judicial review.
[64]
Ms. Bernard subsequently appealed to this Court,
and leave was granted on November 22, 2012.
III. Analysis
A.
Section 186(1)(a) of the PSLRA
[65]
I do not disagree with the conclusion of
Justices Abella and Cromwell that the Board made a reasonable decision in
holding that s. 186(1) (a) of the PSLRA requires the employer
to disclose some employee contact information to the union and that this
complies with s. 8(2) (a) of the Privacy Act .
[66]
I would add that the contention of the amicus
curiae that s. 186(1) (a) of the PSLRA is a prohibition
provision and not a duty-imposing provision cannot be sustained.
[67]
Labour boards have previously found positive
obligations stemming from s. 186(1) (a) of the PSLRA and
similar legislative provisions that prohibit employers from interfering with
unions: see Public Service Alliance of Canada v. Treasury Board (Canada
Border Services Agency), 2012 PSLRB 58 (CanLII); Canadian National
Railway Company (1994), 95 di 78; Consolidated Bathurst Packaging Ltd.,
[1983] OLRB Rep. 1411; CFTO-TV Limited (1995), 97 di 35; Ford
Glass Limited, [1986] OLRB Rep. 624; Canada Post Corporation (1994),
96 di 48; York University, [2007] OLRB Rep. 659.
[68]
It was not unreasonable for the Board in PIPSC
1 to conclude that the employer was required by s. 186(1) (a) of the PSLRA
to disclose some employee information to the union.
B.
The Board Erred in Refusing to Consider Ms.
Bernard’s Section 2(d) Charter Arguments
[69]
My colleagues intimate, at para. 35, that the
Board correctly declined to determine Ms. Bernard’s s. 2 (d) Charter arguments.
With respect, I cannot agree.
[70]
Ms. Bernard is a self-represented litigant. She
believes that the Board’s order compelling the disclosure of her home address
and telephone number to the bargaining agent forces her to associate with the
union she has chosen not to join, and thus violates her s. 2 (d) Charter
right to freedom from association. Ms. Bernard tried to raise her s. 2 (d)
Charter claims before both the Board and the Federal Court of Appeal.
Despite her assiduous efforts, both the Board and the court refused to consider
these arguments.
[71]
In holding that the Board in PIPSC 3 was
barred from determining Ms. Bernard’s s. 2 (d) Charter arguments,
the Board and the Federal Court of Appeal erred in law. This jurisdictional error
resulted in a denial of procedural fairness insofar as Ms. Bernard was
deprived of her right to make her Charter submissions and have them
considered and ruled upon.
(1) The Board Had a Duty to Decide Ms. Bernard’s Section 2(d) Charter
Arguments
[72]
This Court has recently affirmed that
“administrative tribunals with the authority to decide questions of law and
whose Charter jurisdiction has not been clearly withdrawn have the
corresponding authority — and duty — to consider and apply the
Constitution, including the Charter , when answering those legal
questions”: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 77 (emphasis
added). This aligns with the principle that Canadians should be permitted to
present their Charter claims in the most accessible forum available,
without having to bifurcate claims into separate proceedings (Conway,
at para. 79).
[73]
In this case, the Board possessed the implied
jurisdiction to decide questions of law, pursuant to s. 36 of the PSLRA :
36. The Board administers this Act and it may exercise the powers and
perform the functions that are conferred or imposed on it by this Act, or as
are incidental to the attainment of the objects of this Act, including the
making of orders requiring compliance with this Act, regulations made under it
or decisions made in respect of a matter coming before the Board.
There is no reason why the Board’s
power to administer the PSLRA would not include the authority to decide
questions of law linked to matters properly before it.
[74]
Section 42 of the PSLRA further supports
the conclusion that the Board is able to decide questions of law:
42. In making an order or a decision, or doing any other thing in
relation to any person under this Act, the Board may do so either generally or
in any particular case or class of cases.
For a decision of the Board to
apply generally or to a class of cases, it must, by necessary implication,
involve the determination of legal questions.
[75]
Nowhere in the PSLRA is it “clearly
demonstrated that the legislature intended to exclude the Charter from
the [Board’s] jurisdiction” (Conway, at para. 81).
[76]
As explained below, the Board possessed both the
authority and the duty to decide Ms. Bernard’s Charter arguments.
(2)
PIPSC 1 Is
Part of the Same Proceeding as PIPSC 2 and PIPSC 3
[77]
The government and the union submit that Ms.
Bernard’s s. 2 (d) Charter arguments should not be heard because
they pertain to the Board’s holding in PIPSC 1, a decision she did not
challenge by way of judicial review and which — they maintain — was beyond the
Board’s reconsideration hearing jurisdiction.
[78]
Contrary to their submissions, the Board’s
holding in PIPSC 1 is not immune from analysis. Although Ms. Bernard did
not directly challenge PIPSC 1, that decision is part of the same
proceeding as PIPSC 2 and PIPSC 3. The Board repeatedly
characterized PIPSC 1 as an “interim decision” (PIPSC 1,
at para. 1; PIPSC 2, at para. 2). The Board’s holding
in PIPSC 1 — that the employer must disclose “some” employee
information to the bargaining agent — is by necessary implication imported into
PIPSC 2, which clarified the precise content of this duty to
disclose.
[79]
Ms. Bernard’s decision to challenge PIPSC 2
by means of judicial review was not an attempt to circumvent proper procedural
channels. On the contrary: given that she was not a party to PIPSC 1 and
that she only received notice, by email, of PIPSC 2 — which
included a hyperlink to the Board’s decision and informed her that the employer
was now required to disclose employee home contact information to PIPSC — she
pursued an eminently logical course of action.
[80]
The Federal Court of Appeal itself recognized
the procedural conundrum in which Ms. Bernard found herself. In Bernard I,
the court pointed out that, with respect to PIPSC 1, “[n]one of the Rand
formula employees were given notice of the application, nor given a chance to
intervene” (para. 9). It also acknowledged that Ms. Bernard did not challenge PIPSC
1 by way of judicial review “because she was not aware of it at the
material time” (para. 20).
[81]
Ms. Bernard raised her s. 2 (d) Charter
arguments three times during the course of these proceedings. She is still
waiting for an answer. Contrary to the argument of the respondents, this Court
should not withhold one simply for the reason — an erroneous one, in my view — that
she should have challenged PIPSC 1, and not PIPSC 2.
[82]
In any event, at its core, Ms. Bernard’s s. 2 (d)
Charter challenge strikes not at the general PIPSC 1 holding that
the employer must provide “some” employee contact information to the bargaining
agent, but rather at the PIPSC 2 particularization that the
employer must disclose employees’ home addresses and home telephone numbers to
the bargaining agent. She conceded that “PIPSC is entitled to some contact
information, namely, work addresses and work telephone numbers” (PIPSC 3,
at para. 130). And, in her submissions during the reconsideration hearing,
she requested that the Board change its order of July 18, 2008 — that is, PIPSC
2 — so that instead of home address and telephone number, “only work
address and telephone numbers should be provided” (PIPSC 3, at para.
141).
[83]
The government’s contention in oral argument
that Ms. Bernard should have initiated a separate action in which to invoke her
Charter claim is inconsistent with this Court’s recognition that
claimants are entitled to “assert their Charter rights in the most
accessible forum available” (Conway, at para. 79).
(3)
Bernard I Did
Not Limit the Board’s Jurisdiction
[84]
In my respectful opinion, the Board in PIPSC
3 and the Federal Court of Appeal in Bernard II erred in holding
that the court in Bernard I limited the Board’s jurisdiction on
reconsideration to the question of “how much home contact information the CRA
may disclose to PIPSC without infringing Ms. Bernard’s rights under the Privacy
Act ” and precluded consideration of Ms. Bernard’s s. 2 (d) Charter
arguments (Bernard II, at para. 31; see also PIPSC 3,
at paras. 9 and 158).
[85]
In Bernard I, the Federal Court of Appeal
merely stated that “it would be premature to deal with the issues of the
violation of Ms. Bernard’s right of freedom of association” (para. 45 (emphasis
added)). Read in context, it is apparent that the court was saying that it
would be premature for the court to consider this Charter question
because it was remitting the matter to the Board for redetermination. That is,
the court recognized that the Charter question could only properly be considered
once the Board had conclusively determined what information the employer
had to disclose.
[86]
And, the only logical interpretation of the
Federal Court of Appeal’s use of the term “premature” in Bernard I is
that it expected the s. 2 (d) Charter issue to be addressed at
some stage of the proceedings. Given that this Charter question was
necessarily bound up in the determination of what information had to be
disclosed, the Board’s redetermination hearing was the proper forum for
consideration of the Charter question.
[87]
The Conway test for determining whether
an administrative tribunal has jurisdiction to hear Charter claims asks
whether the legislature has clearly excluded consideration of these
issues from the tribunal’s jurisdiction. It would be inconsistent with Conway
to now hold that a reviewing court may exclude such a fundamental aspect of
a tribunal’s jurisdiction.
[88]
With respect, I disagree with the Federal Court
of Appeal’s intimation in Bernard II that, were the Board to have
considered Ms. Bernard’s Charter argument in PIPSC 3, this would
have amounted to an unauthorized reconsideration of PIPSC 1 (para. 31).
As explained above, PIPSC 1 is part of the same proceeding and, in any
case, Ms. Bernard’s s. 2 (d) Charter argument equally targets the
Board’s holding in PIPSC 2. Ms. Bernard is not asking the Board to
reconsider its PIPSC 1 decision; she is simply trying to vindicate her
right to have her Charter claims decided.
[89]
The respondent PIPSC contends that, since the
Federal Court of Appeal in Bernard II was interpreting its own earlier
order in Bernard I, this Court should defer to the finding in Bernard
II that the Board was precluded from considering the Charter issue.
[90]
However, the interpretation of the order in Bernard
I is not subject to a deferential review by this Court. Indeed, the stock
in trade of this Court is to review decisions of lower courts on questions of
law of public importance on the standard of correctness, not on assumptions
about what the lower court intended, as my colleagues assert at para. 35. There
is therefore no reason to defer to the opinion of the court below in Bernard
II regarding its interpretation of the decision in Bernard I. In any
event, even on a deferential review, it is self-evident that a result that
denies Ms. Bernard the opportunity to make her Charter arguments in
these proceedings — as would be achieved under the Bernard II holding — is
simply unreasonable.
C. This Court Should Address the Section 2(d) and Section 8 Charter Arguments
[91]
The respondents suggest that, even if the
Board’s failure to hear Ms. Bernard’s Charter arguments amounted to an
error in law, this Court should not decide these arguments because they raise
new issues; rather, the respondents maintain that they should be remitted to
the Board for consideration. For the reasons that follow, I disagree.
[92]
I acknowledge that Ms. Bernard’s Charter arguments
were not addressed by the Board and the Federal Court of Appeal and that the
practice of this Court is generally not to determine issues not dealt with in
the forums below. However, that is not a rule of mandatory application in all
cases.
[93]
This Court outlined the two-step test for
determining whether an appellate court may address an argument not decided by
the lower courts in Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712, at
para. 38. First, is the argument a “new issue” on appeal? If so, do the
evidentiary record and the interests of justice support an exception to the
general rule that a new issue cannot be raised on appeal?
(1)
Ms. Bernard’s Charter Arguments Are Not
New Issues
[94]
This Court must first determine whether Ms.
Bernard’s s. 2 (d) and s. 8 Charter arguments are “new
issues” on appeal — that is, whether they are “legally and factually distinct”
from the issues before the lower courts (Quan, at para. 39). Ms. Bernard
made — or attempted to make — her s. 2 (d) Charter arguments from
the outset, as part of her application for judicial review in Bernard I,
before the Board in PIPSC 3, and before the Federal Court of Appeal in Bernard
II.
[95]
With respect to s. 8 of the Charter , the
respondent PIPSC — in its response to Ms. Bernard’s application for leave to
appeal — stated that Ms. Bernard had made a s. 8 Charter argument in the
proceedings below (memorandum of argument, at para. 53). This would suggest
that it is not a new issue. However, in its factum, PIPSC stressed that no such
argument was previously made (para. 96).
[96]
Even were Ms. Bernard’s s. 2 (d) and s. 8 Charter
arguments to be characterized as “new issues”, the second step of the Quan
test reinforces the view that this Court ought to decide these arguments.
(2) The Evidentiary Record and Interests of Justice Justify an
Exception to the Rule That a New Issue Cannot Be Raised on Appeal
[97]
The second step of the Quan test asks
whether the evidentiary record and the interests of justice support an
exception to the general rule that a new issue cannot be raised on appeal (para.
38; see also Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 5). In my
view, the circumstances of this case support application of the exception.
(a)
Evidentiary Record
[98]
The evidentiary record in this case is
sufficient for this Court’s inquiry into the s. 2 (d) Charter issue.
The reasons of the Board and the Federal Court of Appeal reflect the fact that
Ms. Bernard presented this claim three times: Bernard I (para. 24), PIPSC
3 (para. 9), and Bernard II (para. 29). She now asks this Court to
address it. The respondents are sophisticated parties who had ample opportunity
to respond to the s. 2 (d) constitutional question stated by this Court.
And, at no point did the respondents argue that they would be prejudiced were
this Court to decide the s. 2 (d) Charter question.
[99]
Similarly, the respondents substantively
addressed Ms. Bernard’s s. 8 Charter claims in their written
submissions before this Court, and did not argue that prejudice would result
should this Court proceed to consider the issue.
(b)
Interests of Justice
[100]
Ms. Bernard’s methodical attempts to have her Charter
arguments addressed were consistently denied by the Board and the Federal
Court of Appeal. The Conway principle is that tribunals have the
authority and duty to “consider and apply the Constitution, including
the Charter ” (para. 77 (emphasis added)). Had leave to appeal to
this Court not been granted, Ms. Bernard would have been entirely precluded
from having her s. 2 (d) and s. 8 Charter claims addressed in the
course of these proceedings before the Board and the Federal Court of Appeal.
[101]
It is therefore in the interests of justice for
this Court to address these arguments now.
(3) There Is No Violation of Section 2(d) Freedom From Association
[102]
Despite the view expressed by my colleagues at
para. 35 that Ms. Bernard’s s. 2 (d) Charter argument
“manifestly has no merit”, they themselves give the argument more than the back
of their hand. They provide reasons why, in this case, they would reject Ms.
Bernard’s s. 2 (d) argument. Had the Board done the same, we would not be
here.
[103]
This Court outlined the criteria for freedom from
association under s. 2 (d) of the Charter in Lavigne v.
Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, and R.
v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209. Two
distinct tests emerge from these cases.
[104]
The first test (the “ideological conformity
test”), which the majority of this Court applied in Advance Cutting, requires
a claimant to demonstrate that there was forced association and compelled
ideological conformity.
[105]
The second test (the “liberty test”) requires
forced association and infringement of a liberty interest. Whether or not such
a test can be applied in the context of a s. 2 (d) Charter claim
has not been definitely determined. Although a majority of the Court in Advance
Cutting discussed the liberty test in obiter (see the reasons of
Bastarache J., at para. 33 and LeBel J., at para. 221), only Justice Iacobucci applied
that test, adopting it in lieu of the ideological conformity test (paras.
284-85). For the reasons outlined below, the existence of such a test need not
be addressed here.
(a)
The Ideological Conformity Test
[106]
The first criterion of the ideological
conformity test, the existence of forced association, is not satisfied.
[107]
I agree with Justices Abella and Cromwell that
the mere provision of Ms. Bernard’s home address and telephone number to
the bargaining agent cannot be characterized as forced association. In order to
trigger the protections of s. 2 (d) of the Charter , an individual
must be compelled to perform one of the following acts of association:
establish, belong to, maintain, or participate in an association (Lavigne,
at p. 323, per La Forest J.). At most, the disclosure of information
ordered by the Board would enable the bargaining agent to contact Ms. Bernard
by phone, mail, or in person — she would in no way, however, be forced to
escalate such benign forms of contact to the level of association. She could,
for instance, hang up the phone, discard any mail received, or close the front
door. The Board’s decisions have not withdrawn the freedom to refuse
association from Ms. Bernard’s hands. As Justice La Forest stated in Lavigne,
freedom from association is not “a right to isolation” (p. 320).
[108]
Ms. Bernard argues that the possibility of
secondary picketing at her home, arising from the disclosure of her home
address, infringes her s. 2 (d) Charter right. It is true that
this Court has held that secondary picketing is, prima facie, a legal
activity: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West)
Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, at para. 67. Secondary picketing
loses its legal sanction, however, where it amounts to tortious or criminal
conduct (para. 3). It would thus be inconsistent with Pepsi-Cola for
this Court to now pronounce that the mere possibility of secondary
picketing — a prima facie legal activity — at Ms. Bernard’s home
violates her s. 2 (d) right to freedom from association.
[109]
In light of this conclusion, this Court need not
address the second part of the test. Nevertheless, Ms. Bernard has also not
demonstrated that the Board’s orders amounted to compelled ideological
conformity. The question is whether the “activity associates the individual
with ideas and values to which he or she does not voluntarily subscribe” (Lavigne,
at p. 344, per McLachlin J., as she then was). Mere contact does not
amount to such compulsion.
(b)
The Liberty Test
[110]
Assuming, without deciding, that our law
recognizes that a s. 2 (d) Charter claim to freedom from
association may be advanced under the liberty test described above, the first
criterion of the test — the existence of forced association — has not been
established. This claim must therefore be rejected.
(4)
There Is No Violation of Section 8 of the Charter
[111]
Ms. Bernard contends that the employer’s
disclosure of her personal information without her consent constitutes an
unlawful seizure under s. 8 .
[112]
I agree with the submission of the Attorney
General of Canada that, in light of the “totality of the circumstances”, Ms.
Bernard did not have a reasonable expectation of privacy in the personal
information disclosed by the employer to the bargaining agent (A.G. of Canada
factum, at para. 69; see also R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R.
34, at para. 40). The subject matter of the alleged seizure is limited to Ms.
Bernard’s home address and telephone number. It can be surmised that Ms. Bernard
has a direct interest and subjective expectation of privacy in this
information. However, in the circumstances here, Ms. Bernard has not shown that
the home addresses and telephone numbers of employees can reasonably be said to
form part of the “biographical core of personal information” which tends “to reveal
intimate details of the lifestyle and personal choices of the individual” (R.
v. Plant, [1993] 3 S.C.R. 281, at p. 293; cited in Cole, at
para. 45). Ms. Bernard’s subjective expectation of privacy in this information
was therefore not objectively reasonable. The disclosure of her home address
and telephone number to the bargaining agent therefore does not trigger the
protection of s. 8 of the Charter .
[113]
In any event, since Ms. Bernard’s employer
disclosed her home contact information — which she had voluntarily provided to
the employer (A.F., at para. 86) — to the bargaining agent, which is an employee
organization, it cannot constitute a “seizure” for the purposes of s. 8 of the Charter .
As Justice La Forest noted in R. v. Dyment, [1988] 2 S.C.R. 417:
“Section 8 was designed to protect against actions by the state and its agents”
(p. 431). The union is neither the state, nor one of its agents.
IV. Costs
[114]
Because the Board and the Federal Court of
Appeal erred in law in refusing to hear and decide Ms. Bernard’s Charter arguments,
I would allow her appeal but only in respect of the Federal Court of Appeal’s
order of costs payable by her to the Attorney General of Canada and to PIPSC. In
all other respects, I would dismiss the appeal. In light of the circumstances,
the parties should bear their own costs in this Court.
Appeal dismissed
without costs, Rothstein and Moldaver JJ.
dissenting in part.
Elizabeth Bernard,
on her own behalf.
Solicitor for the
respondent the Attorney General of Canada: Attorney General of
Canada, Ottawa.
Solicitors for the
respondent the Professional Institute of the Public Service of Canada: Sack
Goldblatt Mitchell, Ottawa.
Solicitors
appointed by the Court as amicus curiae: McCarthy Tétrault,
Vancouver.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of Ontario,
Toronto.
Solicitor for the
intervener the Attorney General of British Columbia: Attorney
General of British Columbia, Vancouver.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitors for the
intervener the Public Service Alliance of Canada: Raven, Cameron,
Ballantyne & Yazbeck, Ottawa.
Solicitors for the
intervener the Privacy Commissioner of Canada: Supreme Advocacy,
Ottawa.
Solicitors for the
intervener the Canadian Association of Counsel to
Employers: McLennan Ross, Edmonton.
Solicitors for the
intervener the Canadian Civil Liberties Association: Dewart Gleason,
Toronto.
Solicitors for the
intervener the Canadian Constitution Foundation: Osler, Hoskin &
Harcourt, Toronto.
Solicitors for the
intervener the Alberta Federation of Labour: Chivers Carpenter,
Edmonton.
Solicitors for the
interveners the Coalition of British Columbia Businesses and Merit
Canada: Heenan Blaikie, Ottawa.
Solicitors for the
intervener the Public Service Labour Relations Board: Torys,
Toronto.