Bernard v. Canada: Privacy Rights in the Unionized Workplace
14 Oct 2015
The preservation of industrial peace has been a cornerstone of Canada’s labour relations system since its inception. The union – introduced for the benefit of workers – is normally a welcome addition to most employees. However, some employees do not seek (some even resist) the union’s protection and commensurate long-term involvement. The Supreme Court of Canada’s decision in Bernard v. Canada (Attorney General), 2014 SCC 13 (CanLII) ("Bernard") illustrates this tension. It touches on issues of the union’s right to the personal information of members of a bargaining unit it represents, regardless if that employee was actually a member of the union.
Bernard came before the Supreme Court after a "legal odyssey" of three administrative tribunal decisions and two rounds of judicial review in the federal court. The decision is particularly important to Canadians because it shows the intricacies and factors which are considered when trying to balance privacy rights of employees in the unionized workplace with that of the union in the broad context of labour relations.
The appellant, Elizabeth Bernard ("Ms. Bernard") was a member of a bargaining unit but was not a member of the union. She was a federal public servant and "Rand Formula" employee which meant that she still had the benefit of union protection and could not opt out of paying union dues.
In 1992, she discovered that her employer had provided the union her home address. She filed a complaint with the Office of the Privacy Commissioner ("OPC") in response claiming that this was a breach of her privacy rights. The OPC concluded that the disclosure of her home address without her consent was a violation of her privacy rights and contrary to the provisions of the Privacy Act. As a result of the above, her employer stopped the practice of providing this information to the union.
However, 13 years later, in 2005, there were amendments made to the Public Service Labour Relations Act which significantly expanded the representational obligations of unions representing federal employees. As a result, the union requested the employees’ contact information from the employer. Again, relying on the earlier decision of the OPC the employer refused the above request.
The above led the union to file a complaint with the Public Service Labour Relations Board ("Board"). The Board concluded that the employer was required to provide the home addresses of bargaining unit members to the union regardless of whether or not they were actual "members" of the union. The Board reasoned this information was needed because the union had to effectively carry out its representational duties and that to deny this request would amount to an "in principle" unfair labour practice.
The parties were able to reach an agreement about when and how the employer would disclose employee contact information including home addresses to the union and the Board was able to turn this into a consent order. However, when Ms. Bernard was notified via email of the Board’s decision, she sought judicial review of the Board’s consent order.
The Federal Court of Appeal heard Ms. Bernard’s judicial review. That court held that the Board should have considered the application of the Privacy Act and sent the whole matter back to the Board for reconsideration. The Board then decided again that the union should be provided contact information to effectively carry out its representational duties. However, the Board also included two additional safeguards: (1) that personal contact information of employees would be provided to the union in an encrypted or password protected form and (2) updated personal contact information would be disposed of in a safe and appropriate manner.
Ms. Bernard appealed the Board’s decision for a second time. However, this time the Federal Court of Appeal held that the Board’s decision was reasonable. She then appealed the Federal Court of Appeal’s decision to the Supreme Court.
The Supreme Court of Canada Decision
The Supreme Court held that the Board’s decision was reasonable and consistent with the provisions of the Privacy Act.
The Supreme Court noted in its decision that it was important to look at this case in the labour context as a whole, particularly the fact that the union had the responsibility to bargain for all employees in its bargaining unit including the ones who were not members (such as employees like Ms. Bernard). The court also decided that employee contact information such as employee home addresses was necessary to allow the union to effectively communicate with those employees that were part of its bargaining unit.
The Supreme Court also held that Ms. Bernard’s claim that the consent agreement between the employer and the union violated her Charter rights under section 2(d) did not hold water. The Supreme Court used the decision of Lavigne v. Ontario Public Service Employees Union, which stands for the proposition that section 2(d) of the Charter does not provide protection from all forms of involuntary association.
The Supreme Court of Canada’s decision in Bernard clearly has wide implications beyond that of the federal context in which this case was based. It is important to keep in mind that unions must have some sort of ability to preserve their influence vis-à-vis the employer and this means that they may need information about their members. However, protections must be put in place to make sure that the unions are not using information for an unreasonable or improper purpose.
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.