Date: 20120316
Docket: A-184-11
Citation: 2012 FCA 92
CORAM: BLAIS
C.J.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
ELIZABETH BERNARD
Applicant
and
ATTORNEY GENERAL OF CANADA
AND PROFESSIONAL INSTITUTE OF THE
PUBLIC SERVICE OF CANADA
Respondents
and
PUBLIC SERVICE ALLIANCE OF CANADA
Intervener
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
Elizabeth
Bernard is right to be concerned to protect her privacy and to attempt to
minimize disclosure of her personal information. She has long attempted to
prevent her employer, the Canada Revenue Agency (CRA), from disclosing her home
contact information to the union that represents her. Ms Bernard does not wish
to receive communications at her home from the union, which she has declined to
join, as is her right. However, under the “Rand formula” she must still pay
union dues, and the union must represent all members of the bargaining unit
fairly, whether they are members of the union or, like Ms Bernard, “Rand
employees”: Lavigne v. Ontario Public Service Employees Union, [1991] 2
S.C.R. 211.
[2]
In this,
the latest, round of her campaign, Ms Bernard has brought an application for
judicial review to set aside a decision of the Public Service Labour Relations
Board (Board), dated March 21, 2011 and reported at 2011 PSLRB 34.
[3]
In that
decision, the Board rejected Ms Bernard’s argument that the Privacy Act,
R.S.C. 1985, c. P-21, protects her home address and telephone number from
disclosure by the CRA to the Professional Institute of the Public Service of
Canada (PIPSC). PIPSC is the bargaining agent for the Audit, Financial and
Scientific (AFS) group of CRA employees to which Ms Bernard belongs.
[4]
The Board
held that the disclosure of this information to PIPSC was authorized by
paragraph 8(2)(a) of the Privacy Act, because PIPSC’s intended
use of it was consistent with the purpose for which it was obtained by the
CRA.
[5]
For the
reasons that follow, I have concluded that the Board’s decision is reasonable
and would therefore dismiss Ms Bernard’s application for judicial review.
Background
[6]
For twenty
years, Ms Bernard has battled with tenacity and intelligence to protect her
home contact information and other personal information from being disclosed by
the CRA to the unions that have represented her. She has had some success.
[7]
PIPSC and
the Public Service Alliance of Canada (PSAC) have, at different times,
represented occupational groups to which Ms Bernard has belonged. The unions
have sought to require the CRA to disclose the home contact information of all
employees in the bargaining units that they represent, regardless of whether
the employees were also union members.
[8]
In order
to contextualize the present application, I summarize below the principal stages
of the prior proceedings that have led up to it.
(i) complaint to the Office
of the Privacy Commissioner
[9]
Ms Bernard
started her career as a federal public servant in Revenue Canada – Taxation (now the CRA) in
1991. Her position at that time was classified within the Professional and
Management group, for which PSAC was the bargaining agent. Ms Bernard declined
to join the union.
[10]
In 1992,
Ms Bernard received a letter from PSAC at her home. When she asked the CRA’s human
resources department how PSAC had her address, she was told that it was
provided by the CRA, along with other personal information. She 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, even though she was not a member of the union.
[11]
In May
1993, Ms Bernard received a letter from the OPC upholding her complaint. In
response to the OPC’s recommendations, Treasury Board officials had
discontinued disclosing employees’ home address, and would cease to release
their SIN. Ms Bernard thought that this victory concluded the matter.
(ii) proceedings before the Board
[12]
In 1995,
she accepted a position in the CRA with a different job classification, which
was subsequently reclassified as AFS. PIPSC is the bargaining agent for this
group of employees.
[13]
In 2007,
PIPSC filed an unfair labour practice complaint with the Board. It alleged,
among other things, that the CRA’s refusal to provide it with home contact information
for members of the bargaining unit breached paragraph 186(1)(a) of the Public
Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (PSLRA). This
provision prohibits employers from interfering in the administration of unions
and their representation of employees. The contact information requested by
PIPSC included employees’ telephone numbers, email, and mailing addresses, both
at work and at home.
[14]
In a
decision dated February 21, 2008 and reported at 2008 PSLRB 13 (February
decision), the Board held that the CRA’s refusal to provide any of the
requested information breached paragraph 186(1)(a). This decision has
never been challenged. The Board directed the parties to attempt to reach an
agreement on how much contact information had to be disclosed to the union in
order to bring the employer into compliance with the PSLRA.
[15]
The
parties were able to agree. Under the terms of a consent order dated July 18,
2008 and reported at 2008 PSLRB 58 (July decision), 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 is
securely stored and protected.
[16]
Ms Bernard
had received no notice of these proceedings and was not involved in them.
However, when she became aware of the Board’s July decision, she made an
application for judicial review to have it set aside. Granting the application,
the Court held that the Board had erred by simply adopting the agreement
reached by the employer and the union when it was aware that its order affected
the statutorily protected privacy rights of third parties, and raised issues
requiring further consideration.
[17]
Consequently,
the Court remitted the matter for a reasoned decision on what information the
employer must provide to enable the union to discharge its obligations under
the PSLRA as the exclusive bargaining agent of the employees in the bargaining
unit, without breaching employees’ rights under the Privacy Act. The
Court’s decision is reported as Bernard v. Canada, 2010 FCA 40, 398 N.R.
325 (Bernard I).
Decision of the Board
[18]
As
directed by Bernard I, the Board reconsidered its July decision.
It received submissions from the CRA, PIPSC, and interveners, notably, Ms
Bernard, the OPC, and other public service unions and employers.
[19]
In careful
and thoughtful reasons for the decision under review in this application, the
Board concluded that its July order complied with the Privacy Act, but
amended it by adding three further privacy safeguards. First, home contact
information sent by the employer to the union must be password-protected or
encrypted. Second, 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. Third, home contact information
provided by the employer must be appropriately disposed of when the union
receives updated information from the employer.
[20]
The Board
acknowledged that employees’ home contact information obtained by the CRA is
“personal information” within the meaning of section 3 of the Privacy Act
and may be disclosed only with the employees’ permission (subsection 8(1)) or
pursuant to a statutory provision authorizing disclosure. The Board relied on
paragraph 8(2)(a) as the provision relevant to this case.
|
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;
…
|
8. (2) Sous réserve d’autres lois
fédérales, la communication des renseignements personnels qui relèvent d’une
institution fédérale est autorisée dans les cas suivants :
a) communication aux fins
auxquelles ils ont été recueillis ou préparés par l’institution ou pour les
usages qui sont compatibles avec ces fins;
[…]
|
[21]
The Board
found that the CRA required employees to provide their home address and gave
them the option of also providing their home telephone number, which Ms Bernard
did. The Board also found that the CRA had obtained this information from
employees for the purpose of contacting them about the terms and conditions of
their employment. PIPSC wanted the information to enable it to discharge its
PSLRA responsibilities as the bargaining agent for all members of the
bargaining unit it represented, whether or not they were also members of the
union.
[22]
Those
responsibilities include the duty to represent employees fairly in: collective
bargaining; prosecuting complaints against employers; the filing and
adjudication of grievances; and conducting strike and final-offer votes. The
discharge of these duties may require the union to: gather employee input in
order to prepare bargaining positions; verify information given by the employer;
give notice of strike action; provide information when conducting strike votes;
advise employees of planned downsizing and inquire whether they are considering
early retirement; and communicate with employees who may be either affected by
essential services agreements or involved in the grievance process.
[23]
Drawing on
labour board jurisprudence from other jurisdictions, the Board stated that the
employment relationship in a unionized environment is “three-way”: employer,
employee, and union. On this basis, it held that the CRA’s purpose for
obtaining the home contact information (contacting employees about the terms
and conditions of their employment) was consistent with the use for which PIPSC
would use it (discharging its statutory duties as bargaining agent by
contacting employees about employment-related matters).
[24]
The fact
that the CRA’s 43,000 employees are spread across Canada makes it particularly important for
PIPSC to be able to communicate quickly and effectively with members of the
bargaining unit. The Board considered means by which PIPSC could communicate
with the employees it represents, other than by reaching them at home. These
included contacting them at work, posting information on the union’s website,
and using its stewards’ network.
[25]
On the
basis of evidence from PIPSC, the Board concluded that none of these methods
were adequate for PIPSC’s purposes. For example, the employer controls its
electronic networks and retains the right to review all electronic
correspondence; employees’ work contact information often changes; PIPSC’s
stewards’ network is patchy, and thus not a reliable means of communication;
and PIPSC’s own website is not secure and can be accessed by the employer.
[26]
Hence, the
Board concluded that PIPSC had to be able to contact bargaining unit members
directly and quickly in order to discharge its representational
responsibilities, and that this use of home contact information was consistent
with the purpose for which the CRA had obtained it. Accordingly, disclosure to
PIPSC of employees’ home addresses and telephone numbers for the proposed use
was permitted by paragraph 8(2)(a).
Issues and analysis
[27]
Admissibility
of evidence: Objections
were made to the inclusion in Ms Bernard’s application record of exhibits to her
affidavit that were not before the Board. Courts normally conduct judicial
review on the basis of the material that was before the administrative
decision-maker. In my view, there is no basis for including the impugned
exhibits, which in any event are of little, if any, relevance to the issues in
dispute in this proceeding.
[28]
Canadian
Charter of Rights and Freedoms: In Bernard I, the
Court’s order required the Board to identify the types of information that the
employer must provide to PIPSC without violating Ms Bernard’s rights under the Privacy
Act. The Board declined to consider the Charter arguments advanced by Ms
Bernard in support of her privacy claim, on the ground that the Court had
remitted the matter to it for the sole purpose of determining what types of
contact information could be disclosed to PIPSC without violating Ms Bernard’s
rights under the Privacy Act.
[29]
Ms Bernard
argued that the Board was wrong to so limit the scope of its inquiry because
tribunals always have jurisdiction to determine Charter challenges to the
exercise of their powers. Further, she noted, the Board had been willing to
entertain Charter arguments advanced in the union’s written representations
prior to its February decision, even though, as it turned out, the Board
was able to reach a decision without having to decide the Charter issues.
[30]
I do not
agree with this argument. No doubt, the Board has the statutory jurisdiction to
decide any Charter issues necessary to resolve a matter before it; this is why
it would have decided in its February decision the Charter issues raised by
PIPSC, had it been necessary.
[31]
The
present case, however, is somewhat different, in that the decision under review
was made pursuant to a Court-ordered re-determination of the Board’s July decision.
Hence, the scope of the Board’s decision-making authority in that proceeding
was defined by the Court’s order in Bernard I. That order limited the
Board to determining how much home contact information the CRA may disclose to
PIPSC without infringing Ms Bernard’s rights under the Privacy Act. It
did not authorize the Board to reconsider its February decision in light of Ms
Bernard’s Charter rights.
[32]
Standard
of review: In
the absence of previous jurisprudence involving the particular issues raised in
this case, a brief standard of review analysis is required, focussing on the
presence of the preclusive clause and, more important, on the nature of the
question in dispute. The Board’s expertise in labour relations has been
judicially acknowledged, as have the statutory objectives of the PSLRA and the
role of the Board in the administration of the statutory scheme: see, for
example, Public Service Alliance of Canada v. Senate of Canada, 2011 FCA
214, 423 N.R. 200 at paras. 21, 27-30.
[33]
First, the
Board’s decisions are protected by a strong preclusive clause in subsection
51(1) of the PSLRA. This provision is a clear signal from Parliament that
courts should normally review the Board’s decisions on a standard of
reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R 190 at para. 52 (Dunsmuir).
[34]
Second,
whether the CRA can be required to disclose Ms Bernard’s home contact
information depends, in part, on whether paragraph 8(2)(a) of the Privacy
Act applies. The Board was authorized to interpret and apply section 8 of
the Privacy Act in this case in order to decide the matter before it.
However, the Privacy Act is neither the Board’s enabling statute,
nor one closely related to it. Nor, as far as I am aware, is it a statute that
the Board regularly applies. The interpretation of the Privacy Act is thus
not within the scope of the Board’s expertise, and the presumption of judicial
deference applicable to the Board’s interpretation of its enabling statute, or
one closely connected to it, does not apply here.
[35]
However,
the Board had to decide two intermediate questions before determining if the
use for which PIPSC wanted employees’ home addresses and telephone numbers was “consistent”
with the purposes for which the CRA had obtained this information within the
meaning of paragraph 8(2)(a).
[36]
To be
precise, the Board had to make findings of fact about the CRA’s purposes in
collecting the home contact information and about the use that PIPSC proposed
to make of it. In addition, it had to define the scope of the duties imposed by
the PSLRA (the Board’s “home statute”) on PIPSC as the bargaining agent of all
members of the AFS bargaining unit, including Ms Bernard. On findings of fact
and the interpretation of the PSLRA, the Board is entitled to deference.
[37]
Moreover,
whether PIPSC’s proposed use of the information and the CRA’s purpose in
obtaining it are “consistent” is a question of mixed fact and law that does not
involve any readily extricable question of more general application that would
elevate it to one of statutory interpretation. That the question in dispute
does not involve the interpretation of the Privacy Act weakens the case
for reviewing the decision for correctness, especially since the Board was
applying a provision of that Act to a labour relations context, its undisputed
area of expertise.
[38]
On the
basis of all these considerations, the decision of the Board in this case
should be reviewed on a standard of reasonableness.
[39]
Was the
Board’s decision reasonable? Reasonableness is a function of the cogency and
transparency of the reasons given by the Board to justify its decision, and of
whether the decision itself falls within a range of acceptable outcomes
rationally defensible on the law and the facts: Dunsmuir at para. 47.
[40]
Ms Bernard
advances seven arguments to demonstrate that the Board’s decision is
unreasonable.
[41]
First, the
Board failed to afford sufficient weight to the submissions and recommendations
made to the Board by the OPC to the effect that disclosure of her home contact
information was not authorized by paragraph 8(2)(a). Indeed, Ms Bernard
went so far as to say that because the OPC had greater expertise than the Board
in privacy rights, the Board was bound to accept the OPC’s submissions.
[42]
I do not
agree. The OPC appeared before the Board as an intervener in the proceeding, in
order to ensure that the Board had the benefit of the OPC’s particular perspective
on issues that the Board had to decide. The Board’s function was not to review
the OPC’s 1993 recommendation, which, as I understand it, was made without
input from the public service unions. Rather, the Board’s task was to apply
paragraph 8(2)(a) in a manner that struck an appropriate balance between
Ms Bernard’s statutory privacy rights and the PSLRA responsibilities of
bargaining agents in the federal public service. I would also add that, unlike
the Board, the OPC’s statutory powers only enable it to make recommendations,
not to issue orders.
[43]
Second, Ms
Bernard argues that the Board did not consider all possible alternatives to the
disclosure of employees’ home contact information. For example, the CRA could
give employees the option of providing a mailing address different from their
home address, which the CRA would disclose to the union. Ms Bernard also submitted
that the Board was wrong to reject other suggested alternatives because of
their cost.
[44]
I do not
agree with this submission. I shall assume for present purposes that the
existence of alternatives to disclosing personal information is relevant to determining
whether the proposed use of information is “consistent” with the purpose for
which it was obtained by the government institution within the meaning of
paragraph 8(2)(a).
[45]
Even so,
the Board’s obligation cannot extend beyond considering alternatives put to it
and reaching a conclusion that has a rational basis in the law and the evidence
before it. Ms Bernard is seeking to hold the Board to a higher standard than
that of reasonableness. It was reasonable for the Board to accept the evidence
of witnesses for the CRA and PIPSC on both the feasibility and the cost of
alternatives to disclosing employees’ home contact information. It is not the
function of the Board to canvass every possible means of communication that
could be imagined. Moreover, in balancing privacy rights with the union’s
ability to discharge its statutory duties, the Board may reasonably have regard
to the expense that any suggested alternative means of communication might
impose on the union and the employer.
[46]
Third,
Ms Bernard submitted in oral argument that the Board did not consider the
disclosure of home addresses and telephone numbers as separate issues. Her
point was that, even if PIPSC’s role as bargaining agent required it to contact
members of the bargaining unit at home, it did not need to call them at home.
[47]
However,
Ms Bernard had not included this argument in her memorandum of fact and law.
Indeed, counsel submitted that no distinction had been made before the Board
between addresses and telephone numbers. In these circumstances, it would be
unfair to the CRA, PIPSC, and PSAC to attach much weight to this argument.
[48]
I
would only say that in order to discharge at least some of its duties as
bargaining agent (concerning strike votes, for example), PIPSC may often need a
more immediate form of communication with employees than that provided by regular
mail.
[49]
Fifth,
Ms Bernard submitted that the disclosure of employees’ home contact information
could not be necessary for the union to discharge the statutory duties of a bargaining
agent. She pointed out that there have been no complaints that PIPSC has failed
to discharge its representational duties during the time when it did not have
access to this information.
[50]
I do
not agree. The fact that PIPSC has not had access to this information and an
unsupported allegation that no employee has complained about a lack of
communication from the union do not prove that the previous arrangements were
satisfactory. There is no evidence to rebut the evidence from the official of
PIPSC that the union must be able to contact employees at home in order to
provide fair representation. The Board also found as a fact that other means of
communication were not adequate to enable PIPSC to discharge its statutory
responsibilities.
[51]
Sixth,
Ms Bernard said that she should be able to opt out of receiving timely
communications from PIPSC on employment-related matters. However, she has not
waived her right to fair representation by PIPSC, assuming that this were legally
possible. Meanwhile, as the Board found, a union’s ability to directly and
quickly contact members of a bargaining unit is integral to the discharge of
its duties of fair representation.
[52]
Seventh,
Ms Bernard notes disparities between the purpose for which she provided the CRA
with her home contact information and the uses to which PIPSC proposed to put
it. In my view, this misstates the issue. Paragraph 8(2)(a) refers to
the purpose for which the government institution obtained the information, not
the purpose for which the employee provided it. The form filled out by newly
hired employees when providing their home contact information stated that it
was needed by the CRA for compensation purposes. Ms Lücker, who testified for
the CRA, also stated that telephone numbers were needed for business continuity
purposes, so that a manager could contact an employee who was away from work,
for example. PIPSC said that it required the information so that it could
discharge its duties as bargaining agent under the PSLRA. Hence, Ms Bernard
submitted, it was not reasonable for the Board to conclude that they were
“consistent” for the purpose of paragraph 8(2)(a).
[53]
I do
not agree. A proposed use of information may be “consistent” with the purpose
for which it was obtained, even if the government institution’s purpose and the
other person’s proposed use are not identical. It is enough that there is a
sufficiently direct connection between purpose and use that an employee would
reasonably expect that the information could be used in the manner proposed. In
the present case, there is a substantial overlap between the employment-related
purposes of both employer and union, in which employees’ compensation looms
large. Hence, in my view, the Board’s conclusion that paragraph 8(2)(a)
applied to the facts before it was an acceptable outcome reasonably open to it
on the facts and the law.
[54]
Finally,
Ms Bernard is concerned about the potential abuse of any personal information
disclosed to PIPSC. In order to reduce this risk, the Board built into its
order important protections to ensure that employees’ privacy rights are
minimally impaired. Thus, PIPSC may only use the personal information disclosed
by the CRA for discharging its responsibilities under the PSLRA as bargaining
agent, and must take specified measures to ensure that employees’ personal
information does not fall into others’ hands.
[55]
True,
no safeguards are foolproof. However, to the extent that Ms Bernard’s concerns
are based on previous experience, I would note that her complaint to the OPC
about the abuse of her personal information occurred twenty years ago, when
privacy rights were less well protected than they are today. Ms Bernard may
always complain to the Board if abuses occur, despite the safeguards that the
Board has put in place – safeguards that did not exist in 1993 when the OPC
investigated Ms Bernard’s complaint.
Conclusions
[56]
For these
reasons, I would dismiss Ms Bernard’s application for judicial review with
costs payable to the Attorney General of Canada and to PIPSC.
“John
M. Evans”
“I
agree
Pierre
Blais C.J.”
“I
agree
K.
Sharlow J.A.”
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