Date: 20100208
Docket: A-625-08
Citation: 2010 FCA 40
CORAM: BLAIS
C.J.
PELLETIER
J.A.
TRUDEL
J.A.
BETWEEN:
ELIZABETH BERNARD
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
Elizabeth
Bernard has been a federal public servant since 1991 and in all that time, she
has declined to join the union which represents the members of her bargaining
unit. She is, in the jargon of labour relations, a Rand formula employee, one
who pays union dues in return for enjoying the benefits of union representation
but who is not a member of the union. This application for judicial review
arises because the Public Service Labour Relations Board (the Board) has
ordered her employer to provide her home address and her home phone number to the
union which represents her bargaining unit (the union). Ms. Bernard argues that
this is a violation of her privacy rights as well as a violation of her
constitutional right to freedom of association which, as the Supreme Court of
Canada pointed out in Lavigne v. Ontario Public Service Employees Union,
[1991] 2 S.C.R. 211, includes the freedom to refrain from association.
[2]
The issue
in this case is limited to the kind of information which the employer must
provide to the union. The Board decided that the employer must provide some
employee contact information in a decision dated February 21, 2008, a decision
which Ms. Bernard, who is self-represented, has not challenged. The kind of
information to be provided was settled in a Board decision dated July 18, 2008.
It is this decision which is under review.
THE FACTS
[3]
Ms. Bernard
joined Revenue Canada-Taxation in August 1991. At that time, she was provided
with a union membership card to fill out but she declined to do so, as was her
right.
[4]
In January
1992, Ms. Bernard received a letter from the union at her home address. When
she inquired how it was that the union had her home address, she was advised
that the employer provided the home addresses and social insurance numbers of
all employees to the union, whether they were union members or not. In February
1992, Ms. Bernard filed a complaint with the Office of the Privacy Commissioner
alleging that the employer had provided her personal information to a third
party without her consent. After conducting an investigation, the Privacy
Commissioner concluded that the employer had breached Ms. Bernard’s privacy
rights. As a result of the Privacy Commissioner’s intervention, the employer
abandoned its policy of providing personal information to the union.
[5]
In 1995, Ms.
Bernard accepted a different position with the same employer (now known as the
Canada Revenue Agency). As a result, she became a member of a different
bargaining unit, represented by a different union. Once again, she was invited
to join the union and, once again, she declined.
[6]
Unbeknownst
to Ms. Bernard, in August 2007, her “new” union asked the employer to provide
it with each employee’s name, position, title, telephone number and fax number
at home and at work, as well as regular mail and email addresses at home and at
work. The union made this request in connection with its preparation for
bargaining the renewal of the collective agreement for Ms. Bernard’s bargaining
unit. The employer, while not refusing the request, replied that it had
received several requests of the same nature and would respond to all unions at
the same time. In fact, the employer never did respond any further to the
union’s request for contact information.
[7]
The union reacted
by filing complaints with the Board, alleging that the Canada Revenue Agency
(the employer) had failed to bargain in good faith and that it had engaged in
an unfair labour practice, contrary to paragraphs 190(1)(b) and (g)
of the Public Service Labour Relations Act, S.C. 2003. c. 22, s. 2, (the
Act). The complaint also named the Treasury Board as a respondent. The
alleged unfair labour practices were that the employers (the Canada Revenue
Agency and Treasury Board) interfered with the union’s duty of fair
representation and interfered in the administration of the union in its
representation of the members of the bargaining unit by failing to provide the
requested contact information.
[8]
Because
the Board’s decision with respect to these complaints set the stage for the
order which Ms. Bernard now challenges, I propose to review the Board’s
decision in some detail.
[9]
The Board
decided to deal with the complaints by way of written representations. The
employers and the union were invited to make their respective submissions. The
employers made a joint submission. None of the Rand formula employees were given notice of
the application, nor given a chance to intervene.
[10]
In their
written representations, the employers referred to the fact that they had sought
an opinion from the Office of the Privacy Commissioner of Canada (OPC). The
Board summarized the OPC’s response (as disclosed by the employers’
representations) as follows:
…the OPC raised very
serious concerns with regard to the availability and the accuracy of the
information being requested by the bargaining agent. The OPC also addresses the
case law that is in favour of disclosure and supports the argument that there
is a significant difference in that the employer may not possess all the
information requested and that the accuracy of the information that it does
possess is questionable.
Finally, the OPC did not
see how the disclosure of the information being requested in this case could be
considered a consistent use under the Privacy Act, as the accuracy of
the information being requested is in question …
Respondent’s Record, p.
48.
[11]
The
employers did not refer to the previous investigation by the OPC as a result of
Ms. Bernard’s complaint, nor to the employer’s decision to discontinue its
previous practice on the basis of the OPC’s response to that complaint.
[12]
In its
decision, reported at 2008 PSLRB 13, the Board rejected the union’s complaint
that the employers’ refusal to provide contact information for employees was a
breach of the duty to bargain in good faith. The Board found that the union had
not shown that the failure to provide the requested information impaired its
ability to carry out its responsibilities in collective bargaining. It also
rejected the union’s argument that the failure to provide the requested
information was a breach of its duty of fair representation.
[13]
The Board
then addressed the issue of interference with the union’s administration. It
began by noting that the employers, while rejecting the allegation that they
were in any way in breach of the Act, accepted that the union should
receive employee contact information. The Board quoted the following passage
from the employers’ submissions:
…The respondents do
agree that the jurisprudence supports the disclosure of personal information
for the legitimate purposes of the complainant…there is a willingness by the
respondents to provide the requested information that they currently have in
their possession.
Respondent’s Record, p.
55.
[14]
This led
the Board to comment that the real issue between the parties was not one of
principle but of the implementation of that principle. The difficulty, for the
Board, was to identify the statutory foundation for that principle. After a
review of the jurisprudence, the Board found that an employer’s failure to
provide employee contact information to a bargaining agent constitutes a form
of interference in the latter’s representation of employees. Having come to
this conclusion, the Board articulated the specific question before it as
follows:
In these complaints, the
fact that the bargaining agent requested information and that the employers
failed to provide that information are undisputed. In my view, the main
outstanding issue of “proof” is whether the information requested by the
bargaining agent in its complaints (“the names, positions, titles, telephone
numbers and home and email addresses for all employees in the bargaining unit”)
can be tied to legitimate representational purposes under the statute.
Respondent’s Record, p.
62.
[15]
The Board then
made the following observation which, as we shall see, is of some consequence
for the disposition of this appeal:
Exactly what employee
information is required, and when, for each of the representational purposes
cited by the complainant may be subject to argument. For purposes
of my interim ruling at this stage, however, I need not examine each purpose
in detail nor be precise about the exact type of contact information required
for a given activity. The latter element becomes, in my view, an appropriate
part of a discussion about redress.
[Emphasis
added.]
Respondent’s Record, p.
63.
[16]
The Board
then considered the decision of the Ontario Labour Relations Board in Ottawa
Carleton District School Board, 2001 CanLII 11073 (O.L.R.B.) and endorsed
the principle that the union must be able to communicate with employees,
including non-members, outside the workplace. It then said:
Leaving aside for a
moment the issue of whether home contact information is essential…a failure by
the employers to supply the complainant with the employee contact information
necessary for that purpose [giving all employees a reasonable opportunity to
participate in strike vote] would constitute interference in the representation
of employees by the complainant…
[Emphasis
added.]
Respondent’s
Record, pp. 63-64.
[17]
As a
result, the Board went on to conclude that the employers’ failure “to provide
the complainant with at least some of the employee contact information that
it requested” (my emphasis) comprised interference in the union’s
representation of employees. It repeated this conclusion in relation to the
provisions dealing with putting the employers’ last offer to the employees,
saying that the employers’ failure to provide the union with “at least some
of the employee contact information it requested” (my emphasis) constituted
interference with the union’s activities.
[18]
The Board
then turned to the question of remedies and acceded to the parties’ request
that a separate hearing be held on that issue. It identified a number of issues
with respect to which it desired further submissions:
In practical terms,
exactly what employee contact information do the employers possess or could
they possess among the types of information sought by the complainant? How is
that information maintained to ensure its accuracy and timeliness? What
precise types of information are necessary with respect to the complainant’s
representational obligations, and which among those types of information should
be provided by the respondents? When should the respondents supply information
to the complainant? What are the recurring requirements, if any to update that
information? Are there approaches under which the employers can meet their
obligation to provide information in a fashion that reasonably addresses
possible concerns arising under the Privacy Act? What, more
specifically, are those concerns? Should any conditions be placed on the
complainant’s use of the information by the complainant once the employers have
provided it?
I am confident that I do
not currently have a sound basis to address such questions. So as to be able to
move beyond the finding in principle in this interim decision to a final
determination of the complaints, further arguments – and possibly evidence –
are required.
Respondent’s Record, p.
66.
[19]
That said,
the Board expressed its “strong conviction” that the details of the corrective
action were best left to the agreement of the parties and invited the parties
to meet and discuss the required remedial action.
[20]
While this
decision has significant implications for Ms. Bernard’s position, she did not
challenge it by way of application for judicial review because she was not
aware of it at the material time. While she might have asked for an extension
of time to bring such an application, she did not do so.
[21]
The
parties took the Board’s exhortation to heart and when the Board reconvened
some five months later, the parties presented it with their agreement which the
Board, without more, incorporated into an order dated July 18, 2008. It is that
order which is the subject of this application.
[22]
The order
requires the employers to provide the union, on a quarterly basis, the home
mailing addresses and home telephone numbers of all bargaining unit employees
which the employer has in its human resources information systems.
[23]
Ms. Bernard,
who had been away from work on leave, first learned of the order on October 20,
2008 and quickly brought a successful motion for an extension of time within
which to bring an application for judicial review.
THE ISSUES
[24]
Ms. Bernard
attacks the Board’s decision on the basis that it requires the employers to
violate the provisions of the Privacy Act, R.S.C. 1985, c. P-5, since
she has not consented to the release of her personal information to the union. She
also argues that the Board must defer to the Office of the Privacy Commissioner
on privacy matters, particularly since that Office has already investigated
this matter and ruled on the propriety of the employer providing personal
information to unions without the individual’s consent. Ms. Bernard is very
critical of the employers’ failure to bring her 1992 complaint and the Privacy
Commissioner’s response to the Board’s attention. Ms. Bernard argues that
as a party interested in the outcome of the matter, she ought to have been
given notice of the proceedings and given a chance to participate. Finally, Ms.
Bernard argues that the Board’s decision breaches her right not to associate
with the union, a right which she claims under the Supreme Court’s decision in Lavigne.
[25]
It is
apparent that Ms. Bernard’s arguments are, to some extent, overly broad. The
Board has held that some contact information must be provided and that decision
is not under review. The issue is the nature of the information to be provided
and the circumstances under which it must be provided.
[26]
The
Attorney General argues that the standard of review of the Board’s decision is
reasonableness and that the decision falls within a range of possible outcomes,
one aspect of reasonableness as described by the Supreme Court in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 47.
[27]
The
Attorney General largely repeats the arguments which were made to the Board to
justify the decision which it made on February 21, 2008 to the effect that some
of the information requested by the union would have to be provided by the
employer. He does not address the rationale for the Board’s decision to order
the disclosure of the employees’ home address and home telephone numbers, as
opposed to any of the other kinds of information originally requested by the
union, namely each employee’s name, position, title, telephone number and fax
number at home and at work, as well as regular mail and email addresses at home
and at work.
[28]
As for Ms.
Bernard’s argument that her freedom not to associate with the union, as
guaranteed by the Charter, has been infringed, the Attorney General
argues that the constitutionality of the Rand formula was upheld in Lavigne.
The Attorney General is silent on the specific question as to whether the
disclosure of personal information to the union without her consent is, in
itself, a violation of Ms. Bernard’s freedom from compelled association with
the union.
[29]
The
Attorney General responds to Ms. Bernard’s argument that she was entitled to be
given notice of the proceedings before the Board because she was a person who
was directly affected by the Board’s decision, by saying that Ms. Bernard is
exercising her right of participation by means of this application for judicial
review.
ISSUES
[30]
As noted
at the beginning of these reasons, the only question before this Court is the type
of information which the employer must provide to the union. The Board’s
decision that the failure to provide such information amounts to interference
in the administration of the union has not been challenged.
ANALYSIS
[31]
Throughout
its reasons with respect to the February 21, 2008 decision, the Board was
careful to deal with the question of disclosure of information in general terms
and left for further consideration the question of which information was to be
provided. The passages from the Board’s decision which I have cited and, in
particular, the portions of those passages which I have highlighted, clearly
show that the Board was aware of the need to address the privacy issues raised
by the complaint before it.
[32]
The Board
went further and clearly articulated the questions which would have to be
addressed in subsequent submissions. Those questions were neither raised nor
canvassed by the Board when it simply adopted the agreement which the union and
the employers had negotiated. In my view, in proceeding as it did, the Board
failed to exercise its jurisdiction with respect to a matter which it was bound
to consider.
[33]
The Board
is protected by a strong privative clauses which provide as follows:
|
51.(1) Subject to this Part, every order
or decision of the Board is final and may not be questioned or reviewed in
any court, except in accordance with the Federal Courts Act on the
grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
|
51. (1)
Sous réserve des autres dispositions de la présente partie, les ordonnances
et les décisions de la Commission sont définitives et ne sont susceptibles de
contestation ou de révision par voie judiciaire qu’en conformité avec la Loi
sur les Cours fédérales et pour les motifs visés aux alinéas 18.1(4) a), b) ou e)
de cette loi.
|
[34]
Paragraph
18.1(4)(a) of the Federal Courts Act, R.S.C. 1985, c. F-7 authorizes the
Court to intervene where a tribunal has “acted without
jurisdiction, acted beyond its jurisdiction or refused to exercise its
jurisdiction.” This
clause allows the Court to intervene if the Board has refused to exercise its
jurisdiction, as it did in this case. Since the question of whether or not a
tribunal has refused to exercise its jurisdiction is a jurisdictional question,
the standard of review is correctness. See Khosa v. Canada (Minister of Citizenship and
Immigration),
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 42, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paragraph 59.
[35]
The
Privacy Act has been held to be quasi-constitutional legislation: see H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney
General), 2006 SCC 13, [2006] 1 S.C.R. 441, at paragraph 28. The
purpose of that legislation is “to protect the privacy of individuals with respect
to personal information about themselves that is held by a government
institution (s. 2).”: H.J. Heinz Co. of Canada Ltd at paragraph 28.
[36]
It
will be recalled that the union’s original demand for information asked the
employer to provide it each employee’s name, position, title, telephone number
and fax number at home and at work, as well as regular and email addresses at
home and at work.
[37]
The Privacy
Act defines personal information as follows:
|
“personal
information” means information about an identifiable individual that is
recorded in any form including, without restricting the generality of the
foregoing,
…
but, for the
purposes of sections 7, 8 and 26 and section 19 of the Access to Information
Act, does not include
(j) information about an individual who
is or was an officer or employee of a government institution that relates to
the position or functions of the individual including,
(i) the fact that the individual is or
was an officer or employee of the government institution,
(ii) the
title, business address and telephone number of the individual,
(iii) the
classification, salary range and responsibilities of the position held by the
individual,
(iv) the name of the individual on a document prepared
by the individual in the course of employment,
…
|
« renseignements personnels » Les renseignements, quels
que soient leur forme et leur support, concernant un individu identifiable,
notamment :
…
toutefois, il demeure entendu que, pour l’application des articles
7, 8 et 26, et de l’article 19 de la Loi sur l’accès à l’information,
les renseignements personnels ne comprennent pas les renseignements
concernant :
j) un cadre ou employé,
actuel ou ancien, d’une institution fédérale et portant sur son poste ou ses
fonctions, notamment :
(i) le fait même qu’il est ou a été
employé par l’institution,
(ii) son titre et les adresse et numéro de téléphone de son lieu
de travail,
(iii) la classification, l’éventail des salaires et les
attributions de son poste,
(iv) son nom lorsque celui-ci figure sur un document qu’il a
établi au cours de son emploi,
…
|
[38]
The
information requested by the union fell largely within the category of personal
information for which less protection is accorded. I say that less protection
is accorded for certain information because, while the information is clearly
in relation to an identifiable individual, it is not considered to be personal
information for some purposes under the Access to Information Act, R.S.C.
1985, c. A-1. This class of information includes the name of the government
employee, that person’s function, title, business address and telephone number.
The status of some of the information requested is uncertain, such as their
office email address and fax number, while the other information is clearly
protected personal information, such as their home address, telephone number,
and home e-mail address.
[39]
Given the
types of information which the union had requested, the Board had a choice as
to the kind of information which it would order to be produced. It had
carefully avoided confusing the issue of the obligation to disclose with the
nature of the disclosure and correctly identified that the union’s request
raised important privacy issues. The Board asked the parties for submissions on
whether:
…there are approaches under
which the employers can meet their obligation to provide information in a
fashion that reasonably addresses possible concerns under the Privacy Act?
…
Respondent’s Record, p. 66.
[40]
By the Board’s
own admission, these were questions which required further submissions and, perhaps,
further evidence. In light of all this, the Board erred in simply adopting,
without analysis, the agreement between the employers and the union by which
the union was to receive on a quarterly basis, out of all the information it
requested, only that information which was fully protected under the Privacy
Act. Even on the more deferential standard of review of reasonableness,
this decision could not stand.
[41]
The Board
was seized of the questions which it had raised because those questions went
beyond the interests of the employers and the union and engaged the interests
of persons who were not before it. Those persons had statutorily protected
privacy rights of which the Board was well aware. The Board had an obligation
to consider those rights and to justify interfering with those rights to the
extent that it did. It could not abdicate that responsibility by simply
incorporating the parties’ agreement into an order.
[42]
As a result, the matter must be remitted 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. However, given the position taken by the employers before the
Board, it is difficult to see how they can be relied upon to make the case for
the limited disclosure which Ms. Bernard desires. Without the addition of
another voice to the debate, the Board is likely to be limited to hearing the
employers and the union defend their agreement.
[43]
Ms. Bernard argues that she is entitled to participate in
this debate. Having brought this application, and having succeeded before this
Court, Ms. Bernard should be heard when the Board reconsiders this issue. But I
am uncertain that Ms. Bernard, acting on her own behalf, is in a position to
fully canvas the privacy issues raised by the Board’s February 21, 2008
decision. The entity which could provide the sophisticated analysis which would
assist the Board is the Office of the Privacy Commissioner whose views were
presented to the Board, second hand, by the employers. The Office of the
Privacy Commissioner has previously intervened in other cases where privacy
issues were raised: see Lavigne v. Canada (Office of the Commissioner of
Official Languages), 2002 SCC 53, [2002] S.C.R. 773, Ruby v. Canada
(Solicitor General) 2002 SCC 75, [2002] 4 S.C.R. 3, Canada (Information
Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA
270, [2003] 1 F.C. 219, (F.C.A.), Canada (Information Commissioner) v.
Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8,
[2003] 1 S.C.R. 66, Gordon v. Canada (Minister of Health), 2008 FC 258,
[2008] F.C.J. No. 331, Englander v. TELUS Communications Inc., 2004 FCA
387, [2005] 2 F.C.R. 572.
[44]
Section 14 of the Public Service Labour
Relations Board Regulations, SOR/2005-79 (the Regulations) provides
that persons who have an interest in proceedings before the Board may apply to
be added as a party or as an intervenor. I would therefore order the Board to
give the Office of the Commissioner of Privacy notice of the re-determination
proceedings, together with a copy of these reasons, and to draw the latter’s
attention to section 14 of the Regulations, on the understanding that if
intervenor status is sought, it will be granted with full rights of
participation in accordance with the Board’s usual practice in the case of
contested matters.
[45]
Given this disposition of the application, it would be
premature to deal with the issues of the violation of Ms. Bernard’s right of
freedom of association. It is also not necessary to decide if Ms. Bernard
was entitled to notice of the proceedings before the Board.
CONCLUSION
[46]
In my view, the Board erred in declining to exercise its
jurisdiction when it failed to consider the privacy issues raised by its
decision of February 21, 2008 when issuing its order of July 18, 2008. Those
issues involved the privacy rights of individuals whose interests were manifestly
not represented by the parties. I would therefore set aside the Board’s order
of July 18, 2008 and remit the matter to the Board for re-determination. I would order the Board to give the Office of the Commissioner of
Privacy notice of the re-determination proceedings, together with a copy of
these reasons, and to draw the latter’s attention to section 14 of the Regulations,
on the understanding that if intervener status is sought, it will be granted
with full rights of participation in accordance with the Board’s usual practice
in the case of contested matters. The applicant, Ms. Bernard, should
also be given notice of the proceedings and given the opportunity to
participate.
[47]
Ms.
Bernard is entitled to her disbursements.
"J.D.
Denis Pelletier"
“I
agree.
Pierre Blais C.J.”
“I
agree.
Johanne Trudel J.A.”
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