On February 7, 2014 the Supreme Court of Canada issued its judgement in Bernard v. Canada (Attorney General) another case in which it has been called upon to balance the privacy interests of individuals against the rights and obligations of unions in the collective bargaining context.
Click here to see our earlier post on the issues in Bernard and here to read our post on the SCC decision declaring Alberta’s Personal Information Protection Act invalid as being contrary to the Charter.
Ms. Bernard is a member of a bargaining unit in the federal public service which has exclusive bargaining rights for her bargaining unit, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. She is what is known as a “Rand Formula employee” who, even though not a union member, is entitled to the benefits of the collective agreement and representation by the union. Under that arrangement, she is required to pay union dues. The union has representational duties, which are owed to all employees, including collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes .
In order to fulfill its obligations, the union sought to obtain home addresses and telephone numbers for members, including Rand employees such as Ms. Bernard, from the employer. The employer initially refused and the union took the matter to the Public Service Labour Relations Board and claimed that the employer was engaged in an unfair labour practice when it refused.
The matter had a complicated history and several hearings before the Board and the Federal Court of Appeal ( see decisions in 2010 and in 2012 before finally reaching the Supreme Court of Canada last fall. The decision rendered on February 7th required the Court to consider the provisions of s. 8 (2) (a) of the Privacy Act which provides that personal information under the control of a government institution may be disclosed “for the purpose for which the information was obtained or compiled by the institution or for a use consistent with the purpose”. The Court found that a use need not be identical to the purpose for which the information was obtained for this exception to disclosure to apply. Consistent means that there needs only to 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”. In this case, the union needed the home contact information of employees to represent their interests. This was a use that was “consistent with” the purpose for which employers collect this type of information – “to contact employees about the terms and conditions of their employment”.