SCC Continues to Navigate the Tension Between Labour Relations and Privacy: Bernard v Canada
Last November, the Supreme Court of Canada (“SCC”) decided that Alberta’s Personal Information Protection Act, SA 2003 c P-6.5, which, inter alia, had the effect of preventing unions from filming individuals crossing a picket line, was an unjustifiable violation of the constitutional right to freedom of expression (for more, see the commentary by Avnish Nanda and Brock Jones).
The SCC’s recent decision in Bernard v Canada,  1 SCR 227 [Bernard], dealt with the relationship between a union’s representational duties under the Public Service Labour Relations Act, SC 2003, c 22 [Public Service Labour Relations Act], and restrictions on disclosure of government-held personal information under the Privacy Act, RSC 1985, c P-21 [Privacy Act].
The SCC upheld the decision of the Public Service Labour Relations Board. Disclosure of employee home contact information by the employer to the union was necessary for the union to effectively discharge its representational duties under the Public Service Labour Relations Act. Information disclosed for this purpose is exempt from the general ban on disclosure of government-held personal information pursuant to the “consistent use” exception.
The Bernard litigation arose when Ms. Bernard challenged a consent order based on an agreement between a union and her employer whereby the employer would periodically disclose the home mailing address and telephone number of each employee to the union.
The Federal Court of Appeal concluded that the Board should have considered the application of the Privacy Act, and the matter was remitted for redetermination. During the new hearing, the Board found that there was no violation of the Privacy Act.
Ms. Bernard challenged the new ruling. This time, the Federal Court of Appeal upheld the Board’s decision. However, Ms. Bernard was granted leave to appeal to the SCC.
The Labour Relations Context
The first step in the analysis written by Abella and Cromwell JJ. was to orient the decision within the labour relations context. The principle of majoritarian exclusivity is a “cornerstone” of Canadian labour law. That is, a union has the exclusive right to bargain on behalf of all employees in a bargaining unit.
Ms. Bernard was a “Rand Formula employee.” This means that she was not a union member, but she was entitled to the benefits of a collective agreement and representation by the union. She was also required to pay union dues. Essentially, Ms. Bernard was able to opt-out of the union, but not out of the exclusive bargaining relationship, including the various duties owed by the union to employees. As a matter of policy, the Rand Formula prevents free-riding. Allowing someone to opt-out of union dues while benefiting from collective bargaining would be unfair.
The Public Service Labour Relations Act imposes specific representational duties on unions. For instance, the Act includes the duty to provide employees with the opportunity to participate in a strike vote and to notify them of the results. The Board determined that it would be an unfair labour practice for the employer to refuse to disclose home contact information because it would interfere with the union’s ability to discharge its representational duties. The Board rejected the argument that disclosing workplace contact information would be sufficient. First, there are significant practical problems with forcing a union to discharge its duties within the employer’s facilities. Secondly, as a matter of principle, the union is supposed to be in an equal bargaining position with the employer. Information asymmetry skews the balance of the collective bargaining relationship.
The Consistent Use Exception
Section 8(2)(a) of the Privacy Act provides that personal information under the control of a government institution may be disclosed for the purpose for which the information was collected or compiled or for a use consistent with that purpose.
The Board concluded that the employer had collected the information for the purpose of contacting employees about the terms and conditions of their employment and the union needed home contact information to discharge its representational duties to employees. Consistent does not mean identical. It means there is a sufficient direct connection between the purpose of collecting the information and the proposed use such that an employee could reasonably expect the information to be used in the proposed manner.
In the context of the tripartite labour relationship the responsibility of contacting employees about the terms and conditions of their employment is shared between the employer and the union. The SCC affirmed the Board’s determination that the union’s proposed use of the information was consistent with the purpose for which it was collected. Thus, the Privacy Act was not violated.
The Constitutional Challenge
Ms. Bernard also argued that disclosure of home contact information to the union was a violation of her constitutional rights not to associate with the union and to be free of unreasonable search or seizure. At the redetermination hearing, the Board decided that its mandate was limited to the question of how much information could be disclosed without violating the Privacy Act and declined to address the constitutional arguments.
The majority of the SCC was hesitant to find that the Board’s decision not to consider the constitutional arguments was a reviewable error. In any event, the majority found that the claims were manifestly without merit. Lavigne v Ontario Public Service Employees Union,  2 SCR 211, decided that freedom of and from association is not intended to protect against associations which are an inevitable part of membership in a modern democratic community (like the terms and conditions of employment for members of a bargaining unit). Further, there was no unreasonable search or seizure in this case because the employee did not have an expectation of privacy in the information.
Rothstein and Moldaver JJ. dissented in part. In their view, the Board had jurisdiction to hear the constitutional challenge and declining to hear the challenge on the basis that the redetermination order did not authorize them to do so was an error of law. While the Board could decline to address Charter arguments on the basis that those arguments lack merit, it could not decline to address Charter arguments on the basis that it lacked jurisdiction.
It is notable that Ms. Bernard was a self-represented litigant, who was repeatedly denied a hearing on her Charter arguments. The dissenting judges expressed concern for how a justice system which fails to respond to Charter argument would be perceived. After analyzing the Charter arguments the dissent found that neither Charter right was breached.
Privacy Is Not All-or-Nothing
It is useful to note that having a right to information does not mean that you can do whatever you want with the information. Privacy is not limited to whether someone has a right of access to information, it extends to the use and protection of that information. In this case, the union was subject to a variety of restrictions and undertakings.
For instance, disclosure of the information was limited to the relevant union officials for the purpose of discharging their representational duties. The Board also ordered that the information provided be encrypted or password protected and that expired information be appropriately disposed of.