After nearly a decade-long legal battle, the Supreme Court of Canada has confirmed that employers are not prohibited by privacy legislation from providing employee personal contact information to their union representatives.
Bernard v Canada (Attorney General)
Elizabeth Bernard was an employee of the Federal Government, represented by a union. In 2005, the Union asked the Employer for contact information of the employees it represented, including home phone and email addresses. The Employer hesitated, citing privacy concerns. The Union complained to the Public Service Labour Relations Board (PSLRB) that the failure to disclose was an unfair labour practice. The PSLRB found that it was. The Union and Employer agreed that the Employer would disclose the contact information of all employees subject to certain safeguards and the PSLRB issued a consent decision imposing that agreement.
Bernard sought judicial review of the PSLRB’s decision on the basis that it violated the Privacy Act, because it compelled disclosure of her personal information without her consent. The Federal Court of Appeal found that the PSLRB had failed to consider the Privacy Act and sent the case back to the PSLRB to do so. The PSLRB reviewed and confirmed its decision. Bernard again sought judicial review. The Federal Court of Appeal declined to overturn the Board’s decision, so Bernard appealed to the Supreme Court of Canada.
The Supreme Court of Canada dismissed her appeal.
The Court examined the labour relations context in which Bernard’s complaint arose and took note of the principle of exclusivity – that the union has the exclusive right to bargain on behalf of all employees, and found that with that right come important legal obligations.
The Court found that the Union required employee home contact information in order for the Union to properly discharge its duties. In particular, it found that the Union needed to be able to communicate with employees quickly and effectively, and other methods of contacting the workforce would be inappropriate or impractical.
The Court also found that a Union should be on equal footing with the Employer with respect to information relevant to the collective bargaining relationship. The Court held that, “To the extent that the employer has information which is of value to the union in representing employees, the union is entitled to it.” Presumably this comment implicitly concerns information ‘regarding the employees’, and not information of value generally.
What Employers Should Know
Bernard is yet another in a series of high-level court decisions providing comment on the interplay between employee privacy rights and employer operational and legal obligations. The legal odyssey of the case goes to underscore the caution with which employers must approach any request for disclosure of employee personal information from a third party, even if it seems innocuous at first glance. It is critical that employers of both unionized and non-union employees, acquaint themselves with relevant privacy legislation, so as to avoid privacy complaints by employees – including ultimately unfounded, expensive ones.
