Canadian Union of Public Employees, Local 27 v. Greater Essex County District School Board (Retired Employees’ Rights Grievance) [2014] O.L.A.A. No. 298

On July 14, 2014, Ontario Labour Arbitrator Thomas Kuttner was asked to decide whether the Greater Essex County District School Board (the “School Board”) was required to provide the Canadian Union of Public Employees, Local 27 (the “Union”) with the contact information of retirees who were receiving benefits from the School Board. Specifically, the Union sought the names, addresses, and telephone numbers of the retirees or their surviving spouses. The retirees in question were former custodial and maintenance workers of the School Board who had been members of the Union until their retirement.

The Union requested this information in the context of a grievance challenging changes the School Board proposed to make to the retirees’ health benefits. Previously, the School Board provided and paid for health benefits for life for retirees. In 2013, the School Board changed this policy. As of August 31, 2014, it would no longer pay for their benefits. The Union started a policy grievance.

The Union, however, did not have the retirees’ contact information. It requested this it from the School Board. Access was refused on the basis releasing it would be a breach of privacy.

At the start of the policy grievance, the Union asked the arbitrator for a ruling requiring the School Board to provide this information. The Union argued that it needed this information to fulfill its duty to represent the retirees. The Union acknowledged that its request raised privacy concerns, but argued that the exception for legal proceedings related to labour relations found at section 52(3) in the Municipal Freedom of Information Act (“MFIPPA”) applied to allay those concerns.

The School Board, on the other hand, argued that unless the Union was successful in its grievance the information was irrelevant and the request premature. Additionally, the School Board argued that due to the privacy concerns involved, the arbitrator should deny the request.

Arbitrator Kuttner found that the information sought by the Union was personal information under section 2(1) of MFIPPA. As such, the issue before him was whether the disclosure of the personal information by the School Board to the Union was “for a purpose for which it was obtained or compiled, or for a consistent purpose” as required by sections 31(b)and 32(c) of MFIPPA.

The arbitrator relied on the Supreme Court of Canada’s 2014 decision in Bernard v. Canada (Attorney General). That case dealt with an analogous issue in the context of federal privacy legislation: a non-union employee, who was subject to the collective agreement, objected to the transmission of her personal information to the Union. The Union argued it required this information to fulfill its representational role. The Supreme Court agreed, and found that disclosure of this information by the employer to the union was permissible under s. 8(2)(a) of the Privacy Act as the use by the union was consistent with the purposes for which it had been collected.

Accordingly, Arbitrator Kuttner found that the School Board ought to disclose the retirees’ personal information under MFIPPA. The Union required the contact information to fulfill its representational role. As such, the Union’s use of the personal contact information to contact retirees regarding the grievance was consistent with the purposes for which the School Board collected the information.

Although Arbitrator Kuttner required the disclosure of the personal information, he imposed certain conditions: the use was limited for the purpose of contacting retirees about proceedings under the collective agreement, the personal information had to be kept in a secure password protected database, and the personal information could not be further disclosed.

These decisions seem to establish that unions will be entitled to receive the personal information of the employees or retirees they are required to represent. However, unions will have to respect certain conditions including: maintaining the information in a secure location and using it only for the purpose exercising its representational role.