Stewart McKelvey

3 Doing Business in AtlAntic cAnADA SUMMER 2014 FCA #2 > The FCA #2 decision concluded that the Board's decision was reasonable and its use of home contact information was a "consistent use" under the PIPEDA. Ms. Bernard successfully sought leave to ap- peal to the Supreme Court of Canada ("the Court"). THE COURT > In a 5:2 decision, the Court found the Board's decision reasonable. It first reviewed other labour board decisions discussing the extent of infor- mation unions are entitled to, to discharge represen- tational duties. Quoting from a key Ontario Labour Relations Board ("OLRB") decision in Millcroft Inn Ltd. and CAW-Canada, Local 448 ("Millcroft"), the Court said: "... To the extent that the employer has information which is of value to the union in its capacity to rep- resent the employees (such as their names, addresses and telephone numbers), the union too should have that information. The employees' privacy rights are compromised (no doubt legitimately) by the employer having details of their names, addresses and telephone numbers. The union's acquisition of that information would be no greater compromise, nor any less legitim- ate. [para. 31]" The Court said the Millcroft conclusions are justified because of the union's need to communicate with em- ployees, and the fact that the union is not always able to make that contact at work. Further, the Court said disclosure ensures the union is on equal footing with the employer on information relevant to the collective bargaining relationship. The Court went on to say: "Moreover, an employee cannot waive his or her right to be fairly – and exclusively – represented by the union. Given that the union owes legal obligations to all employees – whether or not they are Rand employ- ees – and may have to communicate with them quickly, the union should not be deprived of information in the hands of the employer that could assist in fulfilling these obligations." WHAT dOEs THis mEAn FOR EmplOyERs? > Labour Relations Boards across the country have generally been quick to reject privacy based objections to the disclosure of personal information to unions. For ex- ample, in Millcroft, the OLRB said that employees who have chosen to bargain collectively with their em- ployer through the union have made an election and are bound by its consequences, namely that the union speaks on their behalf and, thus, individual privacy rights are partially superseded. The Court has con- firmed the Millcroft approach so long as a "consistent use" is identified. Jonah Clements, associate charlottetown, P.e. 902.629.4527 jclements@stewartmckelvey.com Alison Strachan, staff lawyer Halifax, n.s. 902.420.3387 astrachan@stewartmckelvey.com As a general rule, employers who provide personal information to the union should only provide pass- word protected or encrypted format data; always ad- vise employees when information has been requested by the union including when it will be disclosed and why; and, inform all new hires that home contact in- formation will be shared with the bargaining agent. The Court also commented on Charter rights issues raised in the appeal. Those comments are as follows. sECTiOn 2(d) – FREEdOm OF AssOCiATiOn > Ms. Ber- nard argued that requiring an employer to provide the union with the home address and home phone number of employees breached her right to "freedom of asso- ciation" under section 2(d) of the Charter and that the Board should have considered this. The Court said this argument had "no legal foundation" because section 2(d) "is not a constitutional right to isolation". In Lavigne v. O.P.S.E.U. 1991 Carsell Ont 1038, the Court concluded that the payment by Rand formula employees of union dues for the purposes of collective bargaining did not amount to unjustified 'compelled as- sociation' under s. 2(3). Even though s. 2(d) protected freedom from association as well as freedom of associa- tion, the majority concluded that s. 2(d) does not provide protection from all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of mem- bership in a modern democratic community. In other words, s. 2(d) is not a constitutional right to isolation. While in R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 SCR 209, three different approaches to the right not to associate emerged, on none of them would Ms. Bernard have a plausible s. 2(d) claim. sECTiOn 8 – UnCOnsTiTUTiOnAl sEARCH And sEizURE > The Court rejected this argument saying: "...As the Attorney General of Canada correctly points out, in this context there can be no reasonable expectation of privacy in that information."

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