Bernard v. Canada (Attorney General)

Bernard v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2014-02-07
Neutral citation
2014 SCC 13
Report
[2014] 1 S. C.R. 227
Case number
34819
Judges
LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Federal Court of Appeal
Subjects
Labour law
Notes
SCC Case Information: 34819
Decision Content
SUPREME COURT OF CANADA
Citation: Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1 S.C.R. 227
Date: 20140207
Docket: 34819
Between:
Elizabeth Bernard
Appellant
and
Attorney General of Canada and
Professional Institute of the Public Service of Canada
Respondents
- and -
Attorney General of Ontario, Attorney General of British Columbia,
Attorney General of Alberta, Public Service Alliance of Canada,
Privacy Commissioner of Canada, Canadian Association of Counsel to Employers, Canadian Civil Liberties Association, Canadian Constitution Foundation,
Alberta Federation of Labour, Coalition of British Columbia Businesses, Merit Canada and Public Service Labour Relations Board
Interveners
Coram: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 42)
Reasons Dissenting in Part:
(paras. 43 to 114)
Abella and Cromwell JJ. (LeBel, Karakatsanis and Wagner JJ. concurring)
Rothstein J. (Moldaver J. concurring)
Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1 S.C.R. 227
Elizabeth Bernard Appellant
v.
Attorney General of Canada and
Professional Institute of the Public Service of Canada Respondents
and
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Public Service Alliance of Canada,
Privacy Commissioner of Canada,
Canadian Association of Counsel to Employers,
Canadian Civil Liberties Association,
Canadian Constitution Foundation,
Alberta Federation of Labour,
Coalition of British Columbia Businesses,
Merit Canada and
Public Service Labour Relations Board Interveners
Indexed as: Bernard v. Canada (Attorney General)
2014 SCC 13
File No.: 34819.
2013: November 4; 2014: February 7.
Present: LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the federal court of appeal
Labour relations — Administrative law — Standard of review — Unions — Representational duties — Labour relations board ordering employer to disclose home contact information of members of bargaining unit to union — Board holding that disclosure necessary to permit union to carry out representational duties — Individual employee challenging order on grounds that it violated her rights under Privacy Act and s. 2(d) of Charter — Whether board’s decision determining that order did not contravene Privacy Act was reasonable — Public Service Labour Relations Act , S.C. 2003, c. 22, ss. 2 , 186(1) (a) — Privacy Act, R.S.C. 1985, c. P‑21, s. 8(2) (a).
B is a member of a bargaining unit in the federal public service, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. In other words, she is a “Rand Formula employee” who, although not a union member, is entitled to the benefits of the collective agreement and representation by the union and is required to pay union dues. The union is the exclusive bargaining agent for all members of the bargaining unit and has representational duties — such as in collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes — which are owed to all bargaining unit members, whether or not they are members of the union.
In 2005, as a result of amendments to the Public Service Labour Relations Act which significantly expanded the union’s representational obligations, the union sought home contact information for bargaining unit members from the employer. The employer refused. This led to complaints to the Public Service Labour Relations Board by the union alleging that the refusal to provide this information constituted an unfair labour practice. The union alleged that failure to provide it with home contact information for bargaining unit members improperly interfered with its ability to represent them. The Board decided that the employer’s failure to provide the union “with at least some of the employee contact information that it requested” was an unfair labour practice because it interfered with the representation of employees by the union.
But on remedy, the Board asked for more information about several privacy‑related issues: what information the union required for its representational obligations; what employee contact information the employer had in its possession and its accuracy; and whether the employer could meet its obligation to provide information in a way that reasonably addressed any concerns under the Privacy Act . The Board directed the parties to consult in order to determine whether they could agree on disclosure terms, failing which the Board would hold a further hearing to address the question of remedy. The parties did in fact reach an agreement about the remedy, which the Board incorporated into a consent order.
Under the terms of the agreement, the employer was required to disclose to the union, on a quarterly basis, the home mailing addresses and home telephone numbers of members of the bargaining unit, subject to a number of conditions, all of which related to the security and privacy of the information. The union undertook not to disclose the information to anyone other than the appropriate union officials; not to use, copy or compile the information for any other purpose; and to ensure that its officials who had access to the information would comply with all the provisions of the agreement. The employer and the union also agreed that they would jointly advise employees as to what information would be disclosed prior to its disclosure, and agreed on the text of that notice. An email was accordingly sent to all bargaining unit members, including B. She responded by seeking judicial review of the consent order.
The Federal Court of Appeal concluded that the Board should have considered the application of the Privacy Act to the disclosure of home contact information, rather than simply adopting the agreement of the parties. It therefore remitted the matter to the Board for redetermination, and directed that the Office of the Privacy Commissioner and B be given notice of the redetermination proceedings and an opportunity to make submissions. At that redetermination hearing, B’s position was that disclosure of her home telephone number and address breached her privacy rights and her Charter right not to associate with the union.
The Board concluded that workplace contact information was insufficient to allow a bargaining agent to meet its obligations to represent all employees in the bargaining unit and that a bargaining agent had a right to contact all employees directly. It also found that there was no breach of the Privacy Act in disclosing home telephone numbers and addresses to bargaining agents because that disclosure was consistent with the purpose for which the information was obtained and was, as a result, a “consistent use” of the information under s. 8(2) (a) of the Privacy Act . But it put two additional safeguards in place: the information was to be provided to the union only on an encrypted or password‑protected basis, and expired home contact information was to be appropriately disposed of after updated information was provided. Because the Board concluded that the directions of the Federal Court of Appeal required it to undertake only the assessment of the privacy rights of the employees in the bargaining unit, it did not address B’s Charter arguments.
B again sought judicial review. The Federal Court of Appeal concluded that the Board’s decision that the union needed employees’ home contact information in order to fulfill its representational duties was reasonable, and that the union’s use of home contact information was a “consistent use” under s. 8(2) (a) of the Privacy Act .
Held (Rothstein and Moldaver JJ. dissenting in part): The appeal should be dismissed.
Per LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.: The standard of review applicable to the Board’s decision is reasonableness. In the labour relations context in which B’s privacy complaints arose, the Board’s decision was reasonable.
A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit, including Rand employees. The union is the exclusive agent for those employees with respect to their rights under the collective agreement and the union must represent those employees fairly and in good faith. While an employee is undoubtedly free not to join the union and to decide to become a Rand employee, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
The Public Service Labour Relations Act imposes a number of specific duties on a union with respect to employees in the bargaining unit. These include a duty to provide all employees in the bargaining unit with a reasonable opportunity to participate in strike votes and to be notified of the results of such votes. 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 employees — 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 those obligations.
The union needs effective means of contacting employees in order to discharge its representational duties. Work contact information is insufficient to enable the union to carry out its duties to bargaining unit employees for a number of reasons: it is not appropriate for a bargaining agent to use employer facilities for its business; workplace communications from bargaining agents must be vetted by the employer before posting; there is no expectation of privacy in electronic communications at the workplace; and the union must be able to communicate with employees quickly and effectively. An employer can control the means of workplace communication, can implement policies that restrict all workplace communications, including with the union, and can monitor communications. In addition, the union may have representational duties to employees whom it cannot contact at work, such as employees who are on leave, or who are not at work because of a labour dispute.
The intersecting privacy concerns emerge from the Privacy Act . It imposes a ban on disclosure of government‑held personal information, which includes home addresses and telephone numbers, subject to a number of exceptions listed in s. 8(2) , including the “consistent use” exception. A use need not be identical to the purpose for which information was obtained in order to fall under s. 8(2) (a) of the Privacy Act ; it must only be consistent with that purpose. There need only be a sufficiently direct connection between the purpose and the proposed use, such that an employee would reasonably expect that the information could be used in the manner proposed. The union needed employee home contact information to represent the interests of employees, a use consistent with the purpose for which the government employer collected the information, namely, to contact employees about the terms and conditions of their employment. The information collected by the employer was for the appropriate administration of the employment relationship. This purpose is consistent with the union’s intended use of the contact information.
The Board was entitled to conclude that its mandate on the redetermination was limited to the question of how much home contact information the employer could disclose to the union without infringing an employee’s rights under the Privacy Act , and did not include B’s argument that requiring an employer to provide a bargaining agent with the home address and phone number of its employees breached her right to freedom of association under s. 2(d) of the Charter. The compelled disclosure of home contact information in order to allow a union to carry out its representational obligations to all bargaining unit members does not engage B’s freedom not to associate with the union. In any event, that argument had no merit and was clearly bound to fail, whenever and wherever asserted. B’s s. 8 Charter argument alleging that the disclosure constituted an unconstitutional search and seizure similarly had no merit.
Per Rothstein and Moldaver JJ. (dissenting in part): This appeal is about a tribunal wrongly declining to exercise its jurisdiction to consider Charter arguments. Where a tribunal does not respond to a constitutional challenge because of a mistaken understanding of its jurisdiction, it is wrongfully declining the jurisdiction that it not only has, but that it must exercise. That constitutes an error of law.
The Public Service Labour Relations Board made a reasonable decision in holding that s. 186(1)(a) of the Public Service Labour Relations Act requires the employer to disclose some employee contact information to the union and that this complies with s. 8(2) (a) of the Privacy Act . The Board, however, incorrectly declined to determine B’s s. 2 (d) Charter arguments. The Board possessed both the authority and the duty to decide her Charter arguments. It would be inconsistent with this Court’s jurisprudence to hold that a reviewing court can exclude such a fundamental aspect of the Board’s jurisdiction. In holding that the Board was barred from determining B’s Charter arguments on reconsideration, both the Board and the Federal Court of Appeal erred in law. This jurisdictional error resulted in a denial of procedural fairness insofar as B was deprived of her right to make her Charter submissions and have them considered and ruled upon.
Pursuant to the two‑step test in Quan v. Cusson, this Court should address B’s s. 2 (d) and s. 8 Charter arguments. The mere provision of B’s home address and telephone number to the bargaining agent cannot be characterized as forced association, nor does it amount to compelled ideological conformity. Accordingly, there is no violation of freedom from association under s. 2(d) of the Charter. The disclosure of B’s home contact information to the union does not trigger the protection of s. 8 of the Charter because B did not have a reasonable expectation of privacy in the personal information disclosed. In any event, the disclosure cannot constitute a “seizure” for the purposes of s. 8 of the Charter since the information was disclosed to an employee organization and not the state.
The appeal should be allowed, but only in respect of the Federal Court of Appeal’s order of costs payable by B to the respondents.
Cases Cited
By Abella and Cromwell JJ.
Referred to: Millcroft Inn Ltd. and CAW‑Canada, Local 448 (2000), 63 C.L.R.B.R. (2d) 181; Monarch Transport Inc. and Dempsey Freight Systems Ltd., 2003 CIRB 249 (CanLII); P. Sun’s Enterprises (Vancouver) Ltd. and CAW‑Canada, Local 114 (2003), 99 C.L.R.B.R. (2d) 110; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209.
By Rothstein J. (dissenting in part)
Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58 (CanLII); Canadian National Railway Company (1994), 95 di 78; Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. 1411; CFTO‑TV Limited (1995), 97 di 35; Ford Glass Limited, [1986] OLRB Rep. 624; Canada Post Corporation (1994), 96 di 48; York University, [2007] OLRB Rep. 659; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Dyment, [1988] 2 S.C.R. 417.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 (d), 8 .
Privacy Act, R.S.C. 1985, c. P‑21, s. 8(2) (a).
Public Service Labour Relations Act , S.C. 2003, c. 22 [as en. by Public Service Modernization Act , S.C. 2003, c. 22, s. 2 ], ss. 36 , 42 , 183 , 184 , 185 , 186(1) (a), 190(1) (b), (g).
APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Evans and Sharlow JJ.A.), 2012 FCA 92, 431 N.R. 317, 347 D.L.R. (4th) 577, [2012] F.C.J. No. 467 (QL), 2012 CarswellNat 1077, affirming a decision of the Public Service Labour Relations Board, 2011 PSLRB 34, [2011] C.P.S.L.R.B. No. 36 (QL), 2011 CarswellNat 1296. Appeal dismissed, Rothstein and Moldaver JJ. dissenting in part.
Elizabeth Bernard, on her own behalf.
Anne M. Turley, for the respondent the Attorney General of Canada.
Peter C. Engelmann, Colleen Bauman and Isabelle Roy, for the respondent the Professional Institute of the Public Service of Canada.
Michael A. Feder and Angela M. Juba, for the amicus curiae.
S. Zachary Green, for the intervener the Attorney General of Ontario.
Keith Evans, for the intervener the Attorney General of British Columbia.
Roderick S. Wiltshire, for the intervener the Attorney General of Alberta.
Andrew Raven, for the intervener the Public Service Alliance of Canada.
Eugene Meehan, Q.C., Patricia Kosseim and Kate Wilson, for the intervener the Privacy Commissioner of Canada.
Written submissions only by Hugh J. D. McPhail, Q.C., for the intervener the Canadian Association of Counsel to Employers.
Timothy Gleason and Sean Dewart, for the intervener the Canadian Civil Liberties Association.
Mark A. Gelowitz and Gerard J. Kennedy, for the intervener the Canadian Constitution Foundation.
John R. Carpenter and Kara O’Halloran, for the intervener the Alberta Federation of Labour.
Written submissions only by Andrea Zwack and Simon Ruel, for the interveners the Coalition of British Columbia Businesses and Merit Canada.
John B. Laskin, for the intervener the Public Service Labour Relations Board.
The judgment of LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. was delivered by
[1] Abella and Cromwell JJ. —The Public Service Labour Relations Board concluded that an employer was required to provide home contact information about bargaining unit members to the union which represents them because this information is needed by the union in order to carry out its representational duties. At the same time, however, the union must ensure that the information is kept secure and is used only for representational purposes. The main issue in this appeal is whether that decision was reasonable. We conclude that it was.
Background
[2] Elizabeth Bernard is the protagonist in a legal odyssey which has found its way through three administrative tribunal proceedings, two rounds of judicial review in the Federal Court of Appeal and now an appeal to this Court. She is a member of a bargaining unit in the federal public service, but does not belong to the union which has exclusive bargaining rights for her bargaining unit. In labour relations terms, this means that Ms. Bernard is a “Rand Formula employee”; in other words, although she is not a union member, she is entitled to the benefits of the collective agreement and representation by the union and is required to pay union dues. The union is the exclusive bargaining agent for all members of the bargaining unit and has representational duties — such as in collective bargaining, the grievance process, workforce adjustments, prosecuting complaints, and conducting strike votes. Those duties are owed to all bargaining unit members, whether or not they are members of the union. While Ms. Bernard has a right not to become a union member, she does not have the right to opt out of the union’s role as exclusive bargaining agent for all bargaining unit employees, including her.
[3] In early 1992, Ms. Bernard filed a complaint with the Office of the Privacy Commissioner because her employer was giving her home address to the union. In May 1993, the Office of the Privacy Commissioner concluded that such disclosure was not permitted under the Privacy Act, R.S.C. 1985, c. P-21 , without the employee’s consent. As a result, the employer decided to discontinue the practice. The Office of the Privacy Commissioner had no adjudicative or order-making authority and the conclusions reached by that office did not confer any rights on Ms. Bernard or anyone else.
[4] In 1995, Ms. Bernard changed jobs within the federal public service and became a member of a bargaining unit represented by the Professional Institute of the Public Service of Canada. Once again, she did not join the union and was a “Rand Formula employee” in her new bargaining unit.
[5] In 2005, there were amendments to the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 , which significantly expanded the union’s representational obligations. Because of these new duties the union was of the view that it required home contact information for bargaining unit members. It sought that information from the employer in order to carry out these obligations. The employer refused. This led to consolidated complaints in September 2007 by the union alleging that the refusal to provide this information constituted an unfair labour practice. The union alleged that failure to provide it with bargaining unit member home contact information improperly interfered with its ability to represent bargaining unit members. The parties to the consolidated complaints were, as is always the case, the employers (the Treasury Board of Canada and the Canada Revenue Agency) and the union in its capacity as exclusive bargaining agent for the bargaining unit members. As is the usual practice, Ms. Bernard was not given individual notice of the proceedings at this point, in common with the tens of thousands of other bargaining unit members for whom the union had exclusive bargaining rights and whose personal information was at issue in the consolidated complaints.
[6] As a remedy, the union sought an order requiring the employer to provide the names, position titles, telephone numbers, and home and email addresses for all employees in six nation-wide bargaining units, including the bargaining unit of which Ms. Bernard was a member.
[7] In response, the employer did not dispute the jurisprudence relied on by the union endorsing the requirement to disclose personal information to unions for legitimate bargaining purposes. In other words, the employer did not dispute the premise of the union’s complaint that it had to provide some employee information and that failure to do so could constitute an unfair labour practice. However, the employer raised some practical concerns about employee privacy and about the accuracy and completeness of its own information. The employer placed before the Board an opinion obtained from the Office of the Privacy Commissioner addressing these points. The Board decided that “in principle”, the employer’s failure to provide the union “with at least some of the employee contact information that it requested” was an unfair labour practice because it interfered with the representation of employees by the union within the meaning of s. 186(1) (a) of the Public Service Labour Relations Act . It pointed particularly to the union’s responsibilities in connection with the conduct of a strike vote (s. 184 ) and a final-offer vote (s. 183 ) as “legitimate representational purposes” that justified the disclosure of the kind of personal information sought by the union. In so concluding, the Board relied on an extensive body of jurisprudence holding that employee contact information must be disclosed to the union by the employer for these purposes: Millcroft Inn Ltd. and CAW-Canada, Local 448 (2000), 63 C.L.R.B.R. (2d) 181 (Ont.) (“Millcroft”); Monarch Transport Inc. and Dempsey Freight Systems Ltd., 2003 CIRB 249 (CanLII); P. Sun’s Enterprises (Vancouver) Ltd. and CAW-Canada, Local 114 (2003), 99 C.L.R.B.R. (2d) 110 (B.C.).
[8] On the question of remedy, the Board was clearly alive to the privacy issues canvassed in the Privacy Commissioner’s opinion and indicated that it did not have a sound basis upon which to address those issues. The Board asked for more information about several privacy-related issues, including: what information the union required for its representational obligations; what employee contact information the employer had in its possession and its accuracy; and whether the employer could meet its obligation to provide information in a way that reasonably addressed any concerns under the Privacy Act . The Board directed the parties to consult in order to determine whether they could agree on disclosure terms, failing which the Board would hold a further hearing to address the question of remedy.
[9] The parties did in fact reach an agreement about the remedy and gave the Board a draft consent order, which the Board incorporated into an order on July 18, 2008.
[10] Under the terms of the agreement, the employer was required to disclose to the union, on a quarterly basis, the home mailing addresses and home telephone numbers of members of the bargaining unit, subject to a number of conditions, all of which related to the security and privacy of the information. The union recognized “the sensitivity of the information being disclosed” and undertook in the agreement to “ensure vigilant management and monitoring controls on this information at all times”. In particular, it undertook not to disclose the information to anyone other than the appropriate union officials; not to use, copy or compile the information for any other purpose; and to ensure that its officials who had access to the information would comply with all the provisions of the agreement.
[11] The employer and the union also agreed that they would jointly advise employees as to what information would be disclosed prior to its disclosure, and agreed on the text of that notice. An email was accordingly sent to all bargaining unit members on October 16, 2008, including Ms. Bernard, who responded by seeking judicial review of the consent order, claiming that (a) the Board’s order required the employer to violate the Privacy Act by disclosing her personal information without her consent; (b) the Board must defer to the Office of the Privacy Commissioner and in particular its 1993 disposition of her complaint; (c) she ought to have been given notice of the proceedings before the Board; and (d) the Board’s order breached her Charter right not to associate with the union.
[12] The Federal Court of Appeal (Blais C.J., Pelletier and Trudel JJ.A.) confirmed that the Board’s initial decision was that “some” contact information must be provided, and noted that that decision was not under review. Nor was the Board’s decision that the failure to provide such information amounts to interference in the administration of the union. The issue before it, instead, was “the nature of the information to be provided and the circumstances under which it must be provided”.
[13] The Federal Court of Appeal concluded that the Board should have considered the application of the Privacy Act to the disclosure of home contact information under the Public Service Labour Relations Act , rather than simply adopting the agreement arrived at by the parties. It therefore remitted the matter to the Board for redetermination, and directed that the Office of the Privacy Commissioner and Ms. Bernard be given notice of the redetermination proceedings and an opportunity to make submissions. It did not deal with Ms. Bernard’s freedom of association argument, nor with her argument that she ought to have been given notice of the prior proceedings before the Board.
[14] At the redetermination hearing, the Privacy Commissioner acknowledged that the Board was entitled to order disclosure of personal information pursuant to the Public Service Labour Relations Act , referring to its 1993 decision as a “non-binding report of findings” to Ms. Bernard and her employer (emphasis added). However, the Commissioner urged the Board “to carefully consider what personal information is minimally required from the employer” to satisfy the union’s representational obligations, to explore “alternative ways” for the union to meet its statutory obligations, and to “ensure adequate safeguards for all employee personal information, and the implementation of privacy best practices”.
[15] Ms. Bernard’s position was that disclosure of her home telephone number and address breached her privacy rights and her right not to associate with the union. The Board addressed all of the privacy concerns raised by Ms. Bernard and the Commissioner. It concluded that work contact information was insufficient to allow a bargaining agent to meet its obligations to represent all employees in the bargaining unit. In its view, “a bargaining agent has a right to contact all employees directly — relying on employees going to a website or talking to a steward does not meet that obligation”: 2011 PSLRB 34 (CanLII), at para. 164.
[16] The Board ultimately turned to the question of whether the consent order properly protected the privacy interests of employees. It noted the following privacy-enhancing features of the original consent order: the union could use the home contact information only for legitimate purposes under the Public Service Labour Relations Act and not for any other purposes; and it could not disclose the information to anyone other than those officials responsible for fulfilling its obligations. The Board also noted that the union had specifically undertaken to be bound by the principles of the Privacy Act and regulations and the principles of the Government Security Policy in effect at the time. Nonetheless, it put two additional safeguards in place: the information should be provided to the union only on an encrypted or password-protected basis, and expired home contact information had to be appropriately disposed of after updated information was provided.
[17] There was no breach of the Privacy Act in disclosing home telephone numbers and addresses to bargaining agents because that disclosure was consistent with the purpose for which the information was obtained and was, as a result, a “consistent use” of the information under s. 8(2) (a) of the Privacy Act .
[18] Because the Board concluded that the directions of the Federal Court of Appeal required it to undertake only the assessment of the privacy rights of the employees in the bargaining unit, it did not address Ms. Bernard’s freedom of association argument.
[19] Ms. Bernard again sought judicial review. The Federal Court of Appeal (Blais C.J., Evans and Sharlow JJ.A.) concluded that the Board’s decision was subject to a reasonableness standard of review. It also concluded that the Board’s decision was reasonable in finding that the union needed employees’ home contact information in order to fulfill its representational duties and that the union’s use of home contact information was a “consistent use” under s. 8(2) (a) of the Privacy Act .
[20] We agree that the standard of review is reasonableness. For the following reasons, we also agree with the conclusion that the Board’s decision was reasonable.
Analysis
[21] It is important to understand the labour relations context in which Ms. Bernard’s privacy complaints arise. A key aspect of that context is the principle of majoritarian exclusivity, a cornerstone of labour relations law in this country. A union has the exclusive right to bargain on behalf of all employees in a given bargaining unit, including Rand employees. The union is the exclusive agent for those employees with respect to their rights under the collective agreement. While an employee is undoubtedly free not to join the union and to decide to become a Rand employee, he or she may not opt out of the exclusive bargaining relationship, nor the representational duties that a union owes to employees.
[22] The nature of the union’s representational duties is an important part of the context for the Board’s decision. The union must represent all bargaining unit employees fairly and in good faith. The Public Service Labour Relations Act imposes a number of specific duties on a union with respect to employees in the bargaining unit. These include a duty to provide all employees in the bargaining unit with a reasonable opportunity to participate in strike votes and to be notified of the results of such votes (s. 184 ). According to the Board, similar obligations apply to the conduct of final-offer votes under s. 183 of the Act.
[23] This is the context in which to consider the reasonableness of the Board’s findings that disclosure of home contact information is required under the Public Service Labour Relations Act and authorized by s. 8(2) (a) of the Privacy Act . The relevant provisions of the Public Service Labour Relations Act state:
185. [Meaning of “unfair labour practice”] In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2) , section 187 or 188 or subsection 189(1) .
186. [Unfair labour practices — employer] (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall
(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization . . .
[24] The Board found that the employer’s refusal to disclose employee home contact information constituted an unfair labour practice because it interfered with the union’s representation of employees. Two rationales fueled this conclusion. The first is that the union needs effective means of contacting employees in order to discharge its representational duties. This was explained in Millcroft, where the Ontario Labour Relations Board extensively reviewed a union’s duties and concluded that the union “must be able to communicate effortlessly with the employees” and “should have [their contact information] without the need to pass through the obstacles suggested by the employer” in order to discharge those representational duties: para. 33.
[25] The Board explained why employee work contact information was insufficient to enable the union to carry out its duties to bargaining unit employees: it is not appropriate for a bargaining agent to use employer facilities for its business; workplace communications from bargaining agents must be vetted by the employer before posting; there is no expectation of privacy in electronic communications at the workplace; and the union must be able to communicate with employees quickly and effectively, particularly when they are dispersed.
[26] The second and more theoretical rationale for the employer’s obligation to disclose home contact information is that the union must be on an equal footing with the employer with respect to information relevant to the collective bargaining relationship. Disclosure of personal information to the union is not like disclosure of personal information to the public because of the tripartite relationship between the employee, the employer and the union. To the extent that the employer has information which is of value to the union in representing employees, the union is entitled to it. This was explained as follows in Millcroft:
A consequence of the union possessing exclusive bargaining status on behalf of the employees is that the union is placed in an equal bargaining position with the employer in its collective bargaining relationship. To the extent that the employer has information which is of value to the union in its capacity to represent 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 legitimate. [para. 31]
[27] The Board’s conclusions are clearly justified. The union’s need to be able to communicate with employees in the bargaining unit cannot be satisfied by reliance on the employer’s facilities. As the Board observed, the employer can control the means of workplace communication, can implement policies that restrict all workplace communications, including with the union, and can monitor communications. Moreover, the union may have representational duties to employees whom it cannot contact at work, such as employees who are on leave, or who are not at work because of a labour dispute.
[28] The second rationale — equality of information between the employer and the union — further supports the Board’s conclusion. The tripartite nature of the employment relationship means that information disclosed to the employer that is necessary for the union to carry out its representational duties should be disclosed to the union in order to ensure that the union and employer are on an equal footing with respect to information relevant to the collective bargaining relationship.
[29] 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 employees — 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.
[30] This brings us to the intersecting privacy concerns. The Privacy Act imposes a ban on disclosure of government-held personal information, which includes home addresses and telephone numbers, subject to a number of exceptions listed in s. 8(2) , including the consistent use exception:
8. . . .
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose;
[31] A use need not be identical to the purpose for which information was obtained in order to fall under s. 8(2) (a) of the Privacy Act ; it must only be consistent with that purpose. As the Federal Court of Appeal held, there need only be a sufficiently direct connection between the purpose and the proposed use, such that an employee would reasonably expect that the information could be used in the manner proposed.
[32] The Board concluded that the union needed employee home contact information to represent the interests of employees, a use consistent with the purpose for which the government employer collected the information, namely, to contact employees about the terms and conditions of their employment. The information collected by the employer was for the appropriate administration of the employment relationship. As the Board noted, “[e]mployees provide home contact information to their employers for the purpose of being contacted about their terms and conditions of employment. This purpose is consistent with the [union]’s intended use of the contact information in this case”: para. 168 (emphasis added).
[33] In our view, the Board made a reasonable determination in identifying the union’s proposed use as being consistent with the purpose of contacting employees about terms and conditions of employment and in concluding that