PRIVACY IN THE WORKPLACE
These materials were prepared bySusan Barber, of McDougall Gauley law firm Regin~, Sas~~tchewan.. for the Saskatchewan Legal Education Society inc. seminar, Privacy Laws .in~ Nutshell; October2004.
\' )i
(",
2
Privacy in the Workplace
In 2000 the federal government enacted The Personal Information Protection and
Electronic Documents Act, commonly know as "PIPEDA". The legislation largely came
about in response to a 1998 Data Protection Directive issued by the European Union. It
was initially compiled as a voluntary private sector privacy code in the form of the
Canadian Standard's Associations Model Code for the Protection of Personal Information
(the "CSA Code"). Then, in 2000, parliament introduced PIPEDA which is modeled
after the CSA Code. PIPEDA came into force on January 1,2001 in respect of federally
regulated businesses. Effective January 1,2004 its provisions became applicable to all
personal information collected, used or disclosed in the course of commercial activities
by all private sector organizations except in provinces which have enacted legislation that
is deemed to be substantially similar to the federal law. To date, Quebec is the only
province with legislation that has been deemed substantially similar although British
Columbia and Alberta will likely have their legislation approved on the same basis in the
near future.
Many private sector businesses in Saskatchewan and elsewhere have been
scrambling to ensure compliance with PIPEDA. Many employers within the province
have raised the question of what PIPEDA means to them in the context of the employer
employee relationship and what steps must be taken to meet any requirements that it
imposes.
3
Although it may make good business sense for employers within Saskatchewan
to ensure compliance with PIPEDA in the employment relationship there is no legal or
legislative requirement to do so. PIPEDA does not apply to provincially regulated
employees.
Part I of PIPEDA addresses "Protection of Personal Information in the Private
Sector". Section 4(1) of the Act, dealing with the application of Part 1, provides as
follows:
4(1) This part applies to every organization in respect of personal informationthat:(a) the organization collects, uses or discloses in the course of commercial
activity; or(b) is about an employee of the organization and that the'organization
collects, uses or discloses in connection with the operation of a federalwork, undertaking or business. (emphasis added)
In the context of the regulation of private sector workplace privacy issues the
situation appears to be that employers in the federal jurisdiction must comply with
PIPEDA, employers in Alberta, British Columbia and Quebec must comply with the
provincial legislation in force (assuming that the legislation in Alberta and British
Columbia is declared to be substantially similar to PIPEDA) and employers in other
provinces who have not passed legislation substantially similar to PIPEDA do not have to
comply with either that legislation or with provincial legislation.
)
4
The Privacy Commissioner for Saskatchewan, Gary Dixon, has suggested in the
annual report for the Office of the Privacy Commissioner that there is a "gap" in the
legislation in Saskatchewan that requires attention and, accordingly, we may expect to
see legislation introduced in Saskatchewan that will address the employment relationship
in the private sector. At page 14 ofthe 2003-2004 Annual Report for the Office ofthe
Privacy Commissioner, Mr. Dixon states the following:
PIPEDA applies only to customer type information and does not apply toemployee information of businesses other than those that are federally regulatedsuch as airlines and banks. Our office is of the view that the most sensitivepersonal information that most businesses would have relate to employees and notto customers. The provinces of British Columbia and Alberta have enactedprivate sector privacy laws that provide full coverage of employees and employeeinformation. This legislative "gap" in Saskatchewan warrants the early attentionof the Legislative Assembly.
It is interesting to note that, notwithstanding the non-application PIPEDA in
Saskatchewan to the private sector and non-federally regulated public sector employment
relationship, many organizations that employers deal with on a regular basis such as
insurance companies, pension administrators and payroll services do regard themselves
as bound to comply with the privacy principles enshrined in PIPEDA with the result that
many employers are impacted by the operation of the legislation even if not directly.
Protection of privacy interests involves a delicate balance between employee
privacy and the employer's ability to protect legitimate business interests. In light of that
balancing act arbitral jurisprudence in Saskatchewan and elsewhere reflects a constant
tension between the right to personal and physical privacy of an employee and the
employer's right to supervise all acts that affect the workplace.
5
Apart from the provincial privacy legislation found in Sa~katchewan,1 which is
limited to control of personal information in the hands of government and local
authorities and apart from PIPEDA which will not apply to employee personal
information of provincially regulated employers, the regulation of privacy issues in the
workplace in Saskatchewan at present is a matter of agreement and common law and the
law can generally be reduced to a "what is reasonable in the circumstances" test.
The distinction between privacy issues in a union versus a non-union environment
is not significant. While the four corners of a collective agreement may serve to
specifically define both employee and employer rights in this area, should the agreement
be silent then the principles which apply to a workplace generally will likely apply. At
the end of the day the factors which affect the outcome of a workplace privacy dispute
include the nature of the job itself and the extent to which the impugned act of privacy
infringement is reasonable given the specific circumstances of each case.
In the absence of applicable legislative regulation of privacy issues in the
workplace it is helpful to consider a variety of such privacy related matters in the context
of the arbitral jurisprUdence and common law that currently applies. This will be
considered in the areas of: computer access and e-mail, surveillance, employee
information, and alcohol and drug testing in the workplace.
1 Freedom ofInformation and Protection ofPrivacy Act, S.S. 1990-91, c. F-22.01; Local Authority andFreedom ofInformation and Protection ofPrivacy Act, S.S. 1990-91, c. L-27.1; and The Privacy Act,R.S.S. 1978, c. P-24]
)
6
1. Computer Access and E-mail
In most cases courts and arbitrators will approach the issue of access to an
employee's computer drives and e-mail messages by recognizing the need to balance the
employee's right to privacy with the employer's right to manage the workplace. In these
circumstances the factors that will be considered when reviewing an employer's ability to
monitor e-mail or computer use include whether the monitoring is done openly or
surreptitiously, the reason or purpose for the monitoring, the location of the files or·
documents within the person's computer and the information that is gathered (Le., is the
employer simply monitoring the time spent on the internet or is it monitoring the nature
of the websites looked at or the content of e-mails).
In ISM Information Systems Management Corp. (Re) [1998] S.L.R.B.D. No. 30
the union filed an unfair labour practice application with the Saskatchewan Labour
Relations Board alleging that ISM entered the office of the union located in th~ ISM
office building on two occasions. ISM admitted that its security personnel had entered
the union office but argued that since the union utilized the employer's computer system
it should be subject to the same security requirements imposed on all other users.
The Board concluded that the employer's decision to enter the union office to
implement a security policy was unreasonable. The Board found that ISM, in unilaterally
applying the security policy to the union, had made certain assumptions about its right to
control its property when those rights might be curtailed by corresponding legal
obligations arising under The Trade Union Act and within a collective bargaining regime.
7
The Board concluded that the decision by ISM to apply the security policy to the union
president in his status as employee and, in particular, that aspect of the policy which
permitted ISM to enter the union's office without permission was improper. The Board
concluded that ISM would have to seek the union's agreement to the security
arrangement and, if no agreement could be reached, ISM might not be able to permit the
union to have access to the computer network and that this might be the price that the
union would have to pay for ensuring the integrity of its own internal operations. The
Board found that both parties had some responsibility to try to accommodate their
competing interests.
The Board stated as follows at paragraph 33 to 35 of the decision:
In our view, the present case presents a textbook example of the need for anaccommodation between union's legitimate activity in the workplace and ISM'slegitimate concerns with the security of its property. Neither right is unlimited, asstated above. The union has been provided with an office and equipment onISM's premises to facilitate the union's activities in the workplace. Likely thearrangement benefits ISM as well as it provides ISM with access to a unionrepresentative without any interruption in the work processes.
However, the union had a reasonable expectation that its office would beconsidered off limits from ISM unless an access agreement was entered intobetween the union and ISM. In this instance, the union had agreed that thecleaning staff be permitted to enter its office and access was granted for thatpurpose. It would not be unusual for ISM to retain a master key to permit itaccess to the office in the event of an emergency or maintenance problem thatrequired immediate attention. Otherwise, the union viewed its office as its ownspace, subject to its own controls, as it would apply if its office were located offISM's premises. In our view, this is a fair and reasonable expectation, absent anyagreements to the contrary with ISM. The office is the centre of the union'sinternal operations; it is the depository of the union's records and files, some ofwhich may contain information that the union does not wish to share with ISM.The right and ability of a union to operate an office free from employer scrutinyseems to this Board to be essential in order to ensure that an arm's lengthrelationship is maintained between the trade union and the employer.
)
8
At the same time, ISM has provided the union with access to its computernetwork which contains valuable and confidential corporate information. It is notunrealistic for ISM to require the union to agree to the application of a securitypolicy with respect to the union's use of the computer network. The union, in thissense, is like any other third party who is allowed access to the ISM computernetwork. Access agreements need to be negotiated. This discussion should haveoccurred before ISM provided the union with access to the system; it also is adiscussion that must occur between ISM and the union in those representativecapacities, not between ISM and an employee.
In CUPE v. Camosun College [1999] B.C.C.A.A.A. No. 490 (November 15,
1999), an arbitrator in British Columbia dealt with the grievance of a lab technician who
had been terminated for having made a series of unwarranted allegations against other
employees and the administration in a lengthy e-mail that was distributed to a number of
employees over the computer network. The administration of the college found out about
the e-mail and the grievor was suspend~d pending an investigation and subsequently
dismissed. The employer took the position that the employee had breached his duty of
fidelity and his conduct waS' tantamount insubordination. The union took the position
that the contents of the message were both confidential and privileged.
In ruling on the matter the arbitrator determined that there" was no confidentiality
associated with the e-mail because the "chat group" was part of the college system which
should alert users that e-mail messages were subject to monitoring. The potential for
dissemination of the message was limited only by the internet. Moreover the arbitrator
determined that the notion of confidentiality that might attach to a letter could not be
applied to e-mail and, accordingly, there was no reasonable expectation of privacy and no
privilege associated with the sending of the message. The grievor was acting in his
personal capacity.
9
In Insurance Corporation ofBritish Columbia and Office and Technical
Employee's Union, Local 378 (Tom Allen grievance) (January 27, 1994, Joseph Weiler),
a labour arbitrator accepted the general principle that an employee does have rights of
privacy which may include e-mail. .Notwithstanding that general recognition, however,
the arbitrator found in that particular case that there was no reasonable expectation of
privacy with respect to workplace e-mails because the employees shared computer
terminals and each employee had an identification code and password which allowed that
employee access to his or her e-mail. When employees were finished using their e-mail,
they logged off, preventing anyone else from accessing their e-mail. However, if an
employee failed to log off the next person using the computer terminal would have access
to the previous employee's e-mail account.
2. Employee Information
In Board ofEducation of the Saskatchewan Rivers School Division No. 119 (re)
[2000] SL.R.B.D. No.8, the LabourRelations Board considered a union complaint
against a employer who refused to provide the union with a list of employees. The
employer argued tha! privacy laws precluded the release of such information by it. The
union, however, argued that the information was necessary in order for it to ensure 'that
the employer complied with dues deduction and the union security provision contained in
the collective agreement.
)
10
The Saskatchewan Labour Relations Board concluded that the information
requested of the employer was reasonably necessary for the union to conduct itself and
that the employer's position in withholding the information was unreasonable.
The Board cited with approval an earlier decision in United Fooa and
Commercial Worker's Local 1400 v. F. W. Woolworth Co. Limited, et al [1994] 1st Quarter
Sask. Labour Rep. 169. In addressing considerations of privacy the Board stated atpage
183 as follows:
The employer argued that disclosure of this information infringes upon theprivacy of the employees, but this does not bear scrutiny. As the employee'sexclusive bargaining agent, the union has access to their wage rates and often totheir performance evaluations, disciplinary records and other highly personalinformation. The employees are informed when they apply for employment, orare supposed to be, that they must join the union as a condition of employment.This knowledge tends to undercut any need to keep this information private fromthe very organization which the employees have a statutory obligation to join andwhich has a statutory duty to represent them. Considering this scheme, access bythe union to the names, addresses and telephone numbers of new employeeswould appear to be compatible with the attainment of these statutory obligations.Furthermore, given that membership in the union is a condition of employment, itseems more reasonable to facilitate the union's ability to solicit and securecompliance from the employees, than to force the union to get the employee'sattention by serving the employer with a demand that they be dismissed.
In the final analysis, considering the intent of Section 36(1), and the generalobjectives of the Act to legitimize and to require employers to accept a regime ofcollective bargaining, we cannot see any reason to sanction a practice which failsto serve any legitimate interest of the employer and is designed merely to frustrateand obstruct the union's access to rights clearly accorded to it by Section 36(1).There was absolutely no attempt by the employer to explain or defend its conducton the basis of its legitimate interests. Its sole purpose was to frustrate andinterfere with the administration of the union and the rights of employees. This·part of the application is accordingly granted under Sections 11(1)(a) and 11(1 )(b)of the Act.
11
In 594431 Saskatchewan Ltd. (c.o.b. Clark's Crossing Pub and Brewery) (re)
[2001] S.L.R.B.D. No. 75 the employer brought an application to the Saskatchewan
Labour Relations Board against the union for refusing to disclose to the employer the
quantum of tips and gratuities earned by unionized employees. The employer argued that
having such information would assist in the determination of wage rates .. The union
countered that the employer was not entitled to this information as it was a "privacy
issue". The Board ultimately determined that the employer was entitled to know such
information so that it could bargain with the union from an informed position. In its
reasoning the Board reviewed several of its previous decisions in which it had determined
that there exists an obligation to disclose information during collective bargaining.
In regard to the privacy issue the Board determined that the privacy issue raised
by the union on behalf of its members was a "non-issue" given that the union would only
be obligated to disclose actual information which it possessed.
3. Surveillance
In a world of advancing technology the use by businesses and by employers of
video surveillance is becoming more common. The propriety of such surveillance and
the admissibility of it in any proceedings that might be initiated against an employee also
involves a balancing test between the right of the employee to a reasonable expectation of
privacy and the right of an employer to regulate the workplace. There are a number of
cases across Canada both in the unionized context and in the common law employment
relationship that have examined the question.
)
12
In Loraas Disposal Services Ltd. (re) [2001] S.L.R.B.D. No. 83, the union
complained about surveillance in the workplace. The employer introduced surveillance
cameras in key areas in the workplace and the union complained that the cameras had the
ability to record the coming and going oftrucks and drivers and to. record conversations
among employees. The employer also installed satellite tracking devices on certain of the
trucks used by the employees. The employer suggested that it did so in order to keep
better track of the vehicles to give calls out to trucks during the day. Neither the
installation of the satellite tracking devices nor of the video surveillance equipment had
been negotiated with the union, although the employer did discuss the installation of
tracking devices on vehicles directly with the employees.
The employer's position was that the cameras, that had been installed in two
offices and on the exterior of the building, were to provide the office staff with a means
of determining whether the owner and the operations manager were on the premises. The
employer denied that the cameras were used to watch or to conduct surveillance on the
employees.
The Board determined that the employer had shown a "flagrant disregard" for the
collective bargaining process and for the union's status as the exclusive bargaining
representative of the employees in the bargaining unit. It found that the employer had
breached the Act by negotiating directly with the employees respecting the installation of
a surveillance system and the satellite driving tracking devices on the trucks. The Board
13
also determined that the installation of the surveillance system ought to be a matter that
was discussed with the union prior to being implemented. The Board stated as follows at
paragraph 60 of the decision:
The union has made various claims under s.ll (1 )(m) of the Act. In our view, theinstallation of the surveillance system is an issue that ought to have beendiscussed with the union to avoid the type of misunderstanding that has nowoccurred. In our view, such a change in the workplace is significant especially ifits intended purpose related to employee discipline. In this case, the employerassured the Board the system will not be used for disciplinary purposes. Thisundertaking may impact on the type of remedial order that the Board willultimately make. However, we find that the introduction of the surveillancesystem did violate S.l1(1)(m) of the Act.
In this case the Board, in accordance with the request of the union, left the
remedial order for a further hearing. It issued a cease and desist order with respect to a
variety of complaints against the employer and asked it to file a plan for rectifying the
violations within 10 days of receipt of the order.
Many cases that deal with the issue of video surveillance involve the admissibility
of such evidence in proceedings involving the employee.
In Re IntercontinentalPackers Ltd. and V.F.e. W, Local 248-P (1996), 42
c.L.A.S. 158, the Canadian Labour Relations Board, in a decision out of Saskatchewan,
considered a complaint against an employer who, in investigating potential WCB fraud,
undertook video surveillance of an employee. At issue before the Board was the
admissibility of such evidence.
)
14
The Board determined that the admissibility of the surveillance evidence ought to
be considered based on a balancing of the employee's reasonable expectation of privacy
with the empioyer's right to investigate suspicion of abuse of compensation benefits. The
Board determined that the decision maker must consider whether, in all of the
circumstances, it was reasonable for the employer to initiate surveillance and whether the
surveillance was undertaken in a reasonable manner. Part of the consideration would
include whether or not there were other means available to the employer to obtain the
desired evidence. Under the circumstances the Board determined that the surveillance
was reasonable and that any other alternatives would not likely have resulted in the
evidence being obtained.
In Newflyer Industries Ltd. v. National Automobile Aerospace, Transportation
and General Worker's Union ofCanada, Local 3003 (Beauchemin grievance)[2003]
M.G.A.D. No.9, the grievor challenged the admissibility of surveillance evidence
received by the employer relating to whether the alleged disability of the grievor was
bonafide.
In determining that the evidence was not admissible the Manitoba arbitrator ruled
that the appropriateness of surveillance of an employee must satisfy the test set out in Re
Newflyer Industries v. C.A.lVo-Canada Local 3003 (Mogg grievance)(2000) 85 LA.C.
(4th) 304, namely:
1. Was it reasonable, in all of the circumstances, to request surveillance?
15
2. Was the surveillance conducted in a reasonable manner?
3. Were other alternatives open to the company to obtain the eVIdence that it
sought?
In Beauchemin the arbitrator determined that the surveillance of the grievor was
not justified in the circumstances of the case since there was no reasonable basis for the
company to do so. The surveillance was initiated, not reasonable grounds, but on
information of some "alleged comments by unidentified employees made to a supervisor
not directly involved with the grievor." In this case, because there were no reasonable
grounds for the employer to believe that the employee was guilty of a breach of trust, the
arbitrator refused to consider the evidence.
In Newflyer Industries Ltd. v. c.A. W. Canada, Local 303 (Schugmann grievance),
the arbitrator determined that the company did not have reasonable grounds to initiate
surveillance because other grounds of investigation were available. The video
surveillance that had been collected was not admissible.
It would appear that the types of questions asked by the arbitrator in Manitoba are
consistent in their application by arbitrators across Canada. The difficulty in every case
is in trying to determine what result might be expected from a particular set of facts. It
would appear that arbitrators will consider the following factors, which are certainly not
intended to constitute an exhaustive list:
)
16
• Whether or not the employer considered other alternatives before·initiating the
surveillance such as confronting the grievor concerning the alleged lnisconduct
or, in the event of abuse of sick leave being suspected, offering the employee
modified work;
• The grievor's seniority;
• Whether there were reasonable grounds for suspecting fraudulent conduct by the
grievor;
• The grievor's disciplinary record, if any, with particular consideration of any
disciplinary record involving dishonesty;
• Whether the grievor was co-operative in supplying medical or other information
respecting the alleged misconduct, such as excessive absenteeism.
Arbitrator Picher in Canadian Pacific Ltd. v. B.M. W:E. (1996),59 L.A.C. (4th)
111 (Can) articulated the balance of interests between the employer and the employee as
follows:
That interest [in preventing abuse of a system of benefits] must be fairly balancedwith what is becoming recognized as the employee's interest in a respect for hisor her personal privacy. The employer's interest does not extend to justifyingspeculative spying on an employee whom the employer has no reason to suspectwill be dishonest. As a general rule, it does not justify resort to random videotape surveillance in the form of an electronic web, cast like a net, to see what itmight catch. Surveillance is an extraordinary step which can only be resorted towhere there is, before hand, reasonable and probable cause to justify it. Whatconstitutes such cause is a matter to be determined on the facts of each case. Aswell, the method and extent of such surveillance must be appropriate to theemployer's purpose, and not excessive or unduly intrusive. A legitimate interestin an employee's physical condition might not, for example,justify the covertexamination of his or her bank records or other personal information.
17
A judicial approach to the admissibility of surveillance evidence in a non
unionized context is reflected in the 1997 decision of the British Columbia Supreme
Court in Richardson v. Davies Wire Industries Ltd., [1997] B.c.J. No. 937. In that case
the plaintiff, a production foreman, had a clean, 16 year record with the employer. The
employer had received unsolicited reports from other employees that the plaintiff was
sleeping on his shift and, rather than confronting him directly, the employer chose to
investigate by installing a hidden surveillance in the lunch room. The employer
suggested that it did so in order to avoid insulting the plaintiff by speaking to him about
the allegations..
After running the surveillance over a course of days and reviewing the tapes it
became apparent that the plaintiff was sleeping regularly on the job. The employer
confronted the plaintiff who said that he had not been feeling well and denied sleeping on
the job on a regular basis.
Mr. Richardson was dismissed and sued for wrongful dismissal. At trial his
counsel argued that the videotapes should be found to be inadmissible on the basis that
the decision to conduct the surveillance and the manner of the surveillance were
unreasonable and there were other alternatives open to the employer to obtain the
evidence. The lawyer for the plaintiff also argued that the employer had committed the
independent tort of breach of privacy under The British Columbia Privacy Act. It was
further argued that a high degree of privacy could beexpected in a place like a foreman's
lunchroom.
)
18
The court determined that there should be no departure from the usual
admissibility test and determined that the tapes were both relevant and not excluded by
any evidentiary rule.
With respect to the argument that the employee had a reasonable expectation of
privacy the learned trial judge stated as follows at paragraph 48 of the decision:
In respect of the issue of whether the videotapes were made in breach of Mr.Richardson's privacy, I conclude that there was no expectation of privacy on thepart of Mr. Richardson in the circumstances. Furthermore, even if he had anexpectation of privacy, a breach of privacy does not lead to exclusion of theevidence in this case. The Privacy Act provides the foundation for a claim in tortand does not prohibit the admission of evidence, even if it were gathered contraryto the Act.
The learned trial judge went on to find, at paragraph 9, that "Mr. Richardson
could not reasonably expect to have the protection of privacy when he was sleeping on
company time, on company property and in circumstances where he could be expected to
be contacted if needed."
The trial judge also concluded that the employer had a reasonable basis to conduct
the surveillance based on a reasonable suspicion that the plaintiff was sleeping on the job
and, accordingly, admitting the videotape would not bring the administration of justice
into dispute.
19
It is interesting to note that notwithstanding the finding by the trial court that the
evidence was admissible the learned trial judge went on to express regret about the
decision to use video surveillance. The trial judge stated as follows:
Notwithstanding my conclusions as to the admissibility of the videotape evidence,I do wish to express my regret that Davies Wire made the choice to install thissurveillance equipment in order to catc,h Mr. Richardson in the act of sleeping onthe job. In my opinion, the surveillance of an employee in hopes of catching himor her engaging in a type of wrongdoing that, while foolish and irresponsible,would not justify summary dismissal, is itself a practice which jeopardizes therelationship of trust and confidence that is so crucial to the employer/employeerelationship. It is unfortunate that Davies Wire did not attempt to solve thisproblem by honestly confronting Mr. Richardson once it became suspicious, andmaking it clear to him that sleeping on the job would not be tolerated.
It is somewhat difficult to reconcile these comments with the judge's finding that
the employer had a reasonable basis for introducing the video surveillance. In the context
of the tests that are normally applied to assess the appropriateness of video surveillance it
appears that the employer may have had a less intrusive method available to it - that is
confronting the employee with the alleged misconduct.
It would appear that the test that is applied by arbitrators in a unionized context is
similar to that applied by the courts in a common law master-servant relationship. In
each case the question comes down to one of balancing the competing interests.
Although employees do have a legitimate privacy interest capable of protection, an
employer will be justified in interfering with that right through the use of electronic
surveillance if there is a legitimate basis under the circumstances.
)
20
4. Alcohol and Drug Testing
There are few, if any" cases in Saskatchewanthat address an employer's ability to
implement alcohol and drug testing protocols in the workplace. There is little doubt that
an employer's prohibition against employees possessing, using or being under the
influence of alcohol or illegal drugs in the workplace does not run afoul of human rights
legislation or any other employee right. The more difficult question arises when random
testing and possible discipline for positive test results is contrary to anti-discrimination
provisions in both legislation and collective agreements.
In other jurisdictions human rights legislation has been interpreted so as to limit
the use of pre-employment drug and alcohol testing, random drug testing and random
alcohol testing of employees in non-safety sensitive positions. Some testing is still
permissible, however, such as random alcohol testing of employees in safety sensitive
positions or where the employer has reasonable grounds to suspect an employee is under
the influence of a prohibited substance.
The difficulty with respect to drug and alcohol testing is the very fact that it raises
human rights discrimination issues in addition to privacy issues respecting the employees
in question. Although drug and alcohol testing is intended to address impairment in the
workplace that, in turn, raises issues of discrimination on the basis of disability for those
employees whose impairment is as a result of an addiction or dependence on alcohol or
drugs. Those dependencies have been recognized by human rights tribunals and courts as
disabilities within the meaning of most human rights legislation across Canada. The area
21
can become somewhat of a minefield because the presence of such a disability creates
accommodation issues requiring the employer to accommodate the addiction to the point
of undue hardship.
In Saskatchewan the Human Rights Commission has concluded by way of policy
that, as a general proposition, drug and alcohol testing violates The Saskatchewan Human
Rights.Code. Testing does identify persons with disabilities and does target them for
discriminatory treatment and, accordingly, in most situations it will not be allowed.
However, the Commission recognizes that the presence of drugs or alcohol in the
workplace can also have negative consequences for work performance. The Human
Rights Commission, relying on the Supreme Court of Canada decision in what is known
as "The Meiorin Case" [1999] 3 S.c.R. 3 has endorsed the three part test established by
the Supreme Court of Canada which employers must meet to justify employment
practices which would otherwise be found to discriminate. In that case the highest court
held that in order to justify what would otherwise be discriminatory treatment the
employer must show:
1. That the employer adopted the practice for a purpose rationally connected to
the performance of the job;
2. That the employer acted honestly and in good faith, believing that the practice
was necessary for the fulfillment of the work related purpose; and
3. That the practice is reasonably necessary for the fulfillment of the work
related purpose.
)
22
In order to meet the last requirement the employer must show:
(a) The employment practice which has the discriminatory effect does, in fact,
achieve the purpose;
(b) That the practice does not go further than necessary to achieve the
purpose; and
(c) That, to the point of undue hardship, the employer has attempted to
accommodate individuals who suffer a discriminatory effect because of
the employment practice.
The Ontario Court of Appeal in Entrop v. Imperial Oil [2000] O.J. No. 2689,
applied the test for discrimination set out by the Supreme Court of Canada in the Meiorin
decision in the context of drug and alcohol testing. In that case the employee, who was a
recovered alcoholic, had been promoted to a safety-sensitive position within Imperial Oil.
There was a policy in the workplace that required the employee to disclose the fact that
he had been an alcoholic even though he had been sober for 7 years. In accordance with
the policy Imperial Oil immediately re-assigned him to a non-safety sensitive position. It
later amended the policy so that the plaintiff was reinstated to the earlier position that he
had been promoted to but required him to agree to random alcohol tests. The employee
filed a complaint under the Ontario Human Rights Code alleging discrimination.
23
The Board of inquiry ruled that random drug and alcohol testing were
discriminatory and were not otherwise justified as· bona fide occupational requirements.
The matter made its way to the Ontario Court of Appeal.
In accordance with the tests articulated in Meiorin the court accepted that the aim
of the policy to minimize the risk of impaired performance due to substance abuse in
order to ensure a safe, healthy and productive workplace was rationally connected to the
performance of the work. It also accepted that the policy was adopted honestly and in
good faith.
In considering the third arm of the Meiorin test the court found alcohol testing to
be a bona fide occupational requirement for those in safety sensitive jobs. It concluded,
however, that automatic termination was too severe and that the sanction would have to
accommodate individual differences and capabilities to the point of undue hardship.
Each case would be determined on the basis of its own peculiar facts.
In the context of random drug testing the court found that both random testing for
safety-sensitive positions and pre-employment testing violated theCode. Although the
court determined that a positive alcohol test could demonstrate impairment a positive
drug test could not. The court expressed the issue as follows at paragraph 99:
Drug testing suffers from one fundamental flaw. It cannot measure presentimpairment. A positive drug test shows only past drug use. It cannot show howmuch was used or when it was used. Thus, the Board found that a positive drugtest provides no evidence of impairment or likely impairment on the job. It doesnot demonstrate that a person is incapable of performing the essential duties of theposition. The Board also found on the evidence that no tests currently exist to
)
)
24
accurately assess the effect of drug use on job performance and that drug testingprograms have not been shown to be effective in reducing drug use, work-relatedaccidents or work performance problems. On these findings, random drug testingfor employees in safety-sensitive positions cannot be justified as reasonablynecessary to accomplish Imperial Oil's legitimate goal of a safe workplace free ofimpairment.
In the context of arbitration decisions dealing with drug and alcohol testing
arbitrators have to some extent been more concerned with the potential infringement on
privacy rights than with the human rights issues raised in cases such as Entrop.
In Greymont Western Canada Inc. v. Cement, Lime, Gypsum and Allied Workers,
LocalD575 [2002] M.G.E.D. No. 55, the union complained about the employer's
mandatory drug and alcohol testing policy which was required in all instances where
employees wished to be transferred to safety-sensitive jobs. The union, argued inter alia,
that the policy was unreasonable as there had been no previous discipline for drug or
alcohol abuse at the relevant workplace. The employer, on the other hand, argued that in
the mining industry in Manitoba the intrusion on privacy with respect to drug and alcohol
testing was mandated by statute under The Workplace Safety and Health Act. The
employer also relied on the collective agreement which provided that "physical fitness"
was a relevant aspect of job promotion.
The arbitrator ultimately decided that, given the circumstances of the workplace
in question (i.e. small, local and stable), the employer would have the opportunity to
detect drug or alcohol abuse through the normal supervisory procedures and therefore the
employer could fulfill its statutory obligations through other means. An unreasonable
infringement on the employee's privacy rights was found to exist in the proposed
application of the policy.
A detailed analysis on the issue of drug and alcohol testing in the workplace was
undertaken by the arbitrator in Canadian National Railway Co. v. c.A. W-Canada [2000]
C.L.A.D. No. 465. In that case the union grieved a comprehensive policy intended to be
introduced by the employer to deal with drugs and alcohol in the workplace. The
arbitrator articulated the difficult nature of the dispute as follows at paragraph 180:
Turning to the merits, seldom has the Arbitrator encountered a contest of suchthoroughly considered and argued positions from both sides. The company'spolicy is rooted in a legitimate concern for the well-being of its employees and thesafety of its own operations, in a manner most consistent with its obligations tothe public. The union and Intervener advance equally legitimate arguments ineloquent defense of the privacy and dignity of the individual, deeply cherishedvalues in Canadian society. The Arbitrator must strive to resolve their positionsin a manner that best reconciles the competing interests of the parties, in the lightof established law and jurisprudence.
The Arbitrator dismissed the union's position that an employee could be required
to submit to drug testing only if it was required by statute or permitted by the consent of
the employee. Instead the arbitrator chose a "balancing of interests" approach. In doing
so Arbitrator Picher stated as follows at paragraph 185 of the decision:
If, as a matter of law, an employer can only base a right to demand a drug oralcohol test of an employee in a safety-sensitive industry on express statutoryauthority of contractual consent, the extensive arbitral jurisprudence in the fieldcould be shortened to a very few lines. As noted above, virtually all arbitratorswho have been called upon to deal directly with the issue have declined to takethe narrow approach of statutory authority/consent. Without exception, boards ofarbitration, striving to be responsive and pragmatic in the face of workplacerealities and genuine concerns for safety, have opted for the balancing of interestsapproach. In this Arbitrator's view that is the preferable framework for a fair andrealistic consideration of the issue of drug and alcohol testing in the workplacegenerally, most especially in an enterprise which is highly safety-sensitive. While
)
)
26
the time-honoured concept of the sovereignty of an individual over his or her ownbody endures as a vital first principle, there can be circumstances in which theinterests of the individual must yield to competing interests, albeit only to thedegree that is necessary. The balancing of interests has become an imperative ofmodern society: it is difficult to see upon what basis any individual charged withthe responsibilities of monitoring a nuclear plant, piloting a commercial aircraft oroperating a train carrying hazardous goods through densely populated areas canchallenge the legitimate business interests of his or her employer in verifying themental and physical fitness of the individual to perform the work assigned.Societal expectations and common sense demand nothing less.
Although the arbitrator recognized employee privacy as a "core workplace value"
he went on to determine that the right was not absolute and that the ultimate
determination in each case is arrived by balancing the competing interests, with the onus
on the employer to establish that its business interest outweighs the employee's privacy
interest.
5. Privacy Considerations in the Light of "Substantially Similar" Legislation inSaskatchewan
In the event the Province of Saskatchewan does introduce legislation that
regulates employment relationships not otherwise covered by PIPEDA one would assume
that the legislators might follow the framework established in the provinces of British
Columbia and Alberta and that the types of considerations undertaken by the Federal
Privacy Commissioner in dealing with alleged violations of PIPEDA in the federally
regulated workplace will at least provide some insight into how our Privacy
Commissioner might deal with those same issues. A review of the cases that exist is
helpful.
On the topic of surveillance the Federal Privacy Commissioner established a four
part test in PIPEDA case summary #114 (January 23, 2003). In that case an employee of
27
a railway company had complained that his employer was collecting the personal
information of employees without consent. The complainant was concerned that the
digital video recording cameras that had been recently installed at a company yard could
collect personal information of employees and, in particular, monitor their conduct and
work performance and that monitoring might then be used against the employees in
disciplinary proceedings.
The employer took the position that the system had been installed in order to
reduce vandalism and theft, to minimize threats to safety and to try to reduce liability for
property damage.
The Commissioner had jurisdiction over the case because the railway company
was a federal work, undertaking or business as defined in the Act. Under Section 5(3) of
PIPEDA an organization is allowed to collect, use or disclose personal information but
only for the purposes that a reasonable person would consider are appropriate in the
circumstances.
The Commissioner articulated the following four part test which does not appear
to be dissimilar from that articulated by the Supreme Court of Canada in Meiorin:
• Is the measure demonstrably necessary to meet a specific need?
• Is it likely to be effective in meeting that need?
• Is the loss of privacy proportional to the benefit gained?
28
• Is there a less privacy-invasive way of achieving the same end?
The Commissioner upheld the complaint on the basis that the company had not
demonstrated the existence of a real, specific problem but only the potential for one.
Moreover he was not convinced that the digital system was in fact effective. He found
that the adverse psychological effects of a perceived privacy invasion could not be under
estimated and, finally, that the company did not appear to have evaluated the cost and
effectiveness of less privacy-invasive measures that would not have impacted on
employee privacy.
Ross v. Rosedale Transport Ltd. [2003] C.L.A.D. No. 237 and No. 570, concerned
the dismissal of a truck driver with 8 years of service and no prior disciplinary record for
alleged fraud. The employee had sustained a back injury at work and was away from his
duties and receiving Worker's Compensation Benefits. He was then placed on modified
duties. The employer became suspicious of the information that was being received from
the grievor's family physician. When the grievor requested time off to help move his
family out of their house the employer engaged a private investigator to conduct
surveillance. Based on that surveillance the employer was satisfied that the grievor's
injuries were fabricated and he was requested to resign or be terminated. The grievor
filed a complaint of unjust dismissal under The Canada Labour Code.
29
When the matter went before the arbitrator one of the issues was the admissibility
of the videotaped evidence. The grievor took the position that it was personal
information collected without his knowledge and consent, contrary to PIPEDA.
There is an exception to the requirement for consent in the Act. Section 7(1)(b)
provides that personal information may be collected without the consent and knowledge
of the individual if "it is reasonable to expect that the collection with the knowledge or
consent of the individual would compromise the availability or- the accuracy of the
information and the collection is reasonable for purposes related to investigating a breach
of an agreement or contravention of the laws of Canada or a province".
The adjudicator concluded that there was no doubt that if the employer had
attempted to request the grievor's consent it would have compromised the investigation.
Accordingly the only question for the arbitrator to determine was whether the method of
collecting the information was reasonable.
The arbitrator considered the fact that prior to the introduction of PIPEDA the
three part test in Meiorin had been an acceptable method of balancing the interests of the
parties. The adjudicator concluded that those principles continue to be relevant when
determining whether the collection of information without consent is reasonable. In this
case the arbitrator concluded that the employer's interest did not extend to conducting
surveillance of an employee who it had no reason to suspect of dishonesty and,
accordingly, the adjudicator held that the surveillance was not justified or admissible.
30
There was no evidence that the grievor had ever been other than an honest employee and
the employer could have used a number of other means to test the veracity of his claims,
including an independent medical examination.
Two cases dealing with access to information, one emanating from the Privacy
Commissioner in Saskatchewan (upheld on appeal) and the second from the Federal
Privacy Commissioner (overturned on appeal), merit review
In Fogel v. Regina School Division No.4 [2002] S.J. No. 141, the employee in
question appealed from a decision of the Information and Privacy Commissioner
pursuant to s.46 of The Local Authority Freedom and Information and Protection of
Privacy Act, S.S. 1990-91, c. L-27.1 ("the Act"). That Act deals with right of access to
documents of local authorities and rights of privacy with respect to personal information
held by local authorities which are defined as including any Board of Education within
the meaning of The Education Act.
The Appellant, Marsha Fogel, was a teacher employed by the Board of Education
with 25 years of teaching experience. Some concerns were raised about her by a parent
and certain steps were taken by the Board of Education in response. She was placed on
an extensive performance evaluation process but did not receive the specific parental
concerns that initiated the evaluation process. As a result the Saskatchewan Teacher's
Federation made application on her behalf under the Act for copies of all correspondence
that expressed any views or opinions about her originating from a variety of sources.
31
The Board of Education denied access to the records on the basis that they were
exempt from the Act because they constitute "personal information that is evaluative or
opinion material compiled solely for the purpose of determining the individual suitability,
eligibility or qualifications for employment."
The matter was put before the Information and Privacy Commissioner for review.
He concluded that the documents did fall within the exemption contained in the Act, that
it was evaluative or opinion material compiled solely for the purpose of determining
individual suitability for employment and that the information was provided in
confidence to the Board of Education. \~
'.'.
On appeal to the Court of Queen's Bench the court agreed with the findings of the
Privacy Commissioner. The judge rejected the argument that the exemption contained in
the ACt applies only to an individual's initial hiring and concluded that evaluating
suitability for employment can take place not only during the hiring process but also
during the employee's tenure. He concluded that the provisions of the Act allowed for
the refusal to provide the information and, in addition, determined that certain provisions
of the collective bargaining agreement to which the individual was subject also addressed
the issue of confidentiality and justified the refusal of access. A further appeal to the
Saskatchewan Court of Appeal was dismissed.
32
In L'Ecuyer v. Aeroports De Montreal [2004] A.c.F. No. 1082, the Federal Court
of Canada considered how the law contained in PIPEDA is to be applied in unionized
workplaces. In that case the particular employee had been the subject of a number of
complaints, some which had resulted in discipline. She applied to her supervisor to have
access to documentation relating to those complaints and relied on the provisions of
PIPEDA. Her request was refused and a copy of the refusal was sent to representatives
of the union and to the airport's employee relations coordinator.
The employee complained to the Federal Privacy Commissioner on two counts.
Her first complaint was that the employer had violated PIPEDA by denying her access to
her own personal information. Her second complaint alleged that the employer had
disclosed her personal information without her consent by providing a copy of the refusal
letter to union representatives and to the employee relations co-coordinator.
The Federal Privacy Commissioner sided with the employee except in relation to
the copying of the letter to the employee relations co-coordinator. It was only in that
regard that he found that the complaint was not well-founded.
Notwi,thstanding her success before the Federal Privacy Commissioner Ms.
L'Ecuyer made an application to the Federal Court of Canada for a hearing pursuant to
Section 14(1) of PIPEDA. Only the court is able to -award damages or to issue a binding
order against a respondent. The Privacy Commissioner does not have that power.
33
The court found that, notwithstanding the provisions of PIPEDA, the Privacy
Commissioner had no jurisdiction to hear the complaint brought by Ms. L'Ecuyer and the
Federal Court had no jurisdiction to hear her application under S.14(1) of PIPEDA. Both
complaints were inextricably linked to the employment relationship between the parties
and, given that the employee was a member of a union, all matters and disputes related to
that relationship had to be resolved by way of arbitration under the provisions of The
Canada Labour Code.
It will be interesting to see whether the decision of the Federal Court will remove
from the Privacy Commissioner's jurisdiction many federally regulated employees who
are subject to collective agreements. The court noted in that case that the collective
agreement did specifically address rights of access to personnel files and concluded that
that particular portion of the collective agreement, rather than PIPEDA, would govern the
situation. One wonders what might have happened if the collective agreement had been
silent on that point.
Notwithstanding that PIPEDA does not apply in Saskatchewan to non-federally
regulated employment relationships and notwithstanding that we do not at present have
substantially similar legislation in the province,employers should still give. consideration
to putting into place mechanisms that recognize the privacy principles contained in
PIPEDA. Those measures might include the following:
34
1. Consider appointing someone within the organization to take responsibility
for privacy matters and to deal with complaints that might arise in that regard.
2. Review employment applications with a view to ensuring that only proper
information is requested.
3. Consider including a statement in an application and in any employment
agreements as to the purposes for which personal information will be used and
containing a consent to the collection, use and disclosure of employee
personal information for those purposes.
4. Review the practices that the employer has for retaining and safeguarding
information respecting employees such as personnel files and discipline
records. The information should only be retained for as long as is necessary
to fulfill the purpose for which it was collected.
5. Review the practices that the employer has in place for conducting
surveillance or for drug and alcohol testing and, in general, respecting
investigations about employees, particularly where there is an allegation of
employee misconduct. Consider the three-part test that was articulated by the
Supreme Court of Canada in Meiorin and ensure that those criteria are met
respecting any measures that might be initiated.
35
6. Develop and distribute to the employees any relevant policies concerning
surveillance, use of internet and e-mails, telephone use and the like. Make
sure the employees know that they may be subject to scrutiny and to
investigation and have them consent to that process.
7. Review the basis on which the employer provides references, including
whether the organization will provide any information about the employee
without written consent.
8. Design a process to allow employees to challenge the organization's
compliance with privacy practices.
Given the likelihood that Saskatchewan will at some point see the introduction of
information along the same lines as PIPEDA, employers should consider addressing
those compliance issues now. It makes good business sense and may be necessary in any
event if certain of the service providers that the employer deals with who regard
themselv.es as bound by PIPEDA demand the same compliance by that organization.