Report from the Chair
By Amy Gough Farnworth
The Labour and Employment Law Section is partnering with the Pensions & Benefits and Administrative Law Sections to present the PD Program, Bargaining Pensions: Resolving Disputes for Underfunded Pension Plans and the Rights of Plan Members in Insolvency Proceedings, at the 2011 Canadian Legal Conference in Halifax.
Judicial reviews of human rights decisions in Ontario, post-Dunsmuir
By Christine Davies, Sack Goldblatt Mitchell LLP
Two important developments have fundamentally altered the landscape of judicial reviews in human rights matters in Ontario.
Judicial review of arbitral decisions: How much deference is reasonable
By Adam Beatty, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP
While it may be too early to draw any definitive conclusions, it seems that some recent lower court decisions have failed to heed the warning in Dunsmuir that “the move towards a single reasonableness standard does not pave the way for a more intrusive review by courts.”
Elimination of mandatory retirement for pilots likely to cause Air Canada 'undue hardship'
By Rebecca K Saturley, Stewart McKelvey Stirling Scales
Although the future of mandatory retirement for federally regulated employers is up in the air, a recent Federal Court decision breathes new life into the bona fide occupational requirement exception.
Court upholds award for wrongful termination
By Andrew Langille
In Greater Toronto Airport Authority v. PSAC, Local 0004, an Ontario court took up a groundbreaking arbitration decision which dealt with the termination of a long-service employee who had recently returned from sick leave.
Employee's personal communication using employer's e-mail not within employer's custody or control, Divisional Court rules
By Inna Koldorf, Watson Jacobs McCreary
On December 13, 2010, the Divisional Court ruled that a government employee's personal e-mails sent using the employee's workplace e-mail and stored on the government's e-mail server are not subject to provincial freedom of information legislation.
Mark Your Calendars!
Labour & Employment/Administrative Law Conference
November 25-26, 2011, Ottawa
By Len Polsky, MacPherson Leslie & Tyerman LLP
This year's conference is designed to update and inform both sides of the labour and employment bar. Lawyers representing management, unions and government agencies will challenge each other and conference attendees about developments and ongoing challenges in their primary areas of practice. (Details coming soon on the CBA PD website.)
Editor’s Note – Supreme Court of Canada Labour Law Update
By Esi Codjoe, Counsel, Ontario Nurses Association
On April 29, 2011, the Supreme Court of Canada released the long awaited decision Ontario (Attorney General) v. Fraser, 2011 SCC 20. Unfortunately the ruling was released within days of our publication deadline. Given the reasons set out, and the length of the decision, there will be much debate about the ultimate meaning and impact of the court’s ruling. While the Attorney General’s ppeal was allowed, the extent to which section 2(d) Charter rights will be affected remains to be seen. This decision and other key Labour and Employment cases will be addressed in detail at the National Labour and Employment Conference in Ottawa, November 16 and 17, 2011. Click here for more information on our November conference.
Report from the Chair
By Amy R. Gough Farnworth
CBA 2011 Canadian Legal Conference in Halifax
The Labour and Employment Law Section is partnering with the Pensions & Benefits and Administrative Law Sections to present the PD Program: Bargaining Pensions: Resolving Disputes for Underfunded Pension Plans and the Rights of Plan Members in Insolvency Proceedings. This session takes place on Monday, August 15, from 8:30 a.m. to 11:30 a.m.
The Labour and Employment Law Section will be holding a Section meeting at the CLC (August 15, 12:30 - 1:45 p.m.), and all are welcome!
Section Committee & Working Groups
The work of the National Section has been divided among working groups to support timely and specialized responses to our Section mandate. If you would like more information, or to participate in any of this work, please contact me as L&E National Chair at amy.goughfarnworth@gnb.ca.
The current Working Groups are as a follows:
- Section Newsletter - Perspectives
- Website Content Committee - monitors and updates Section website
- Working Group on Pandemic Issues - examining the labour and employment impacts in planning for, experiencing and in the aftermath of a pandemic (once issues are canvassed, the intention is to prepare materials of assistance for members in their practice).
- CHRT Stakeholder Consultation - preparing response to the CHRT request for participation in its process review
- National PD Steering Committee - participates and contributes on behalf of the Section in the development of the program for the National Administrative and Labour & Employment Law PD in Ottawa in November each year [This year: November 25 & 26, 2011]
- DOJ Liaison - On behalf of the Section, collaborates with Federal Department of Justice contacts responsible for labour and employment matters to establish the agenda/program for the in-person DOJ meeting with the L&E Section Executive each year
- ABA Liaison - On behalf of the Section, makes linkages with the ABA Labour & Employment Law Section
- Submissions Committee - assists in coordinating L&E Section contributions for CBA responses to Government and other entities
- Working Group to Develop L&E Section Law Student Writing Prize
Judicial reviews of human rights decisions in Ontario, post-Dunsmuir
By Christine Davies
Two important developments have fundamentally altered the landscape of judicial reviews in human rights matters in Ontario.
In 2006, the legislature introduced significant changes to the human rights regime in this province, including direct access to the new Human Rights Tribunal of Ontario, as well as changes to the availability of judicial review. Prior to 2008, section 42 of the Human Rights Code provided for a full right of appeal to the Divisional Court from decisions of a Board of Inquiry. In reviewing human rights decisions, the Divisional Court typically applied a standard of correctness to questions of law (including the interpretation of the Code), and a standard of reasonableness to findings of fact. However, under the new human rights regime, which came into force on June 30, 2008, there is no longer a right of appeal to Divisional Court from decisions of the HRTO. Rather, a decision of the HRTO can only be challenged by judicial review. Pursuant to section 45.8 of the Code, decisions of the HRTO are now protected by a privative clause and by a statutorily mandated standard of review of “patent unreasonableness.”
Following the introduction of the new human rights regime, the Supreme Court of Canada released its game-changing decision in Dunsmuir v. New Brunswick, 2008 SCC 9, eliminating the unwieldy distinction between “reasonableness” and “patent unreasonableness,” and declaring that there would only be two standards of review: “correctness” and “reasonableness.”
An interesting question thus arose: what standard of review should be applied where a statute mandates a standard that the Supreme Court has eliminated?
The recent case of Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (CanLII) addressed this issue. The case, in which Vice-Chair Faisal Bhabha of the HRTO concluded that the employer, Audmax, had discriminated against an employee, Saadi, through the application of its microwave policy and professional dress code, received some media attention when the decision of the HRTO was originally released in 2009. Both the employer and the employee sought judicial review.
The question for the Divisional Court was whether the statutorily imposed standard of “patently unreasonable” required a return to outdated case law. Justice Molloy, writing for a panel of the Divisional Court that included Justices Swinton and Whalen, answered that question in the negative. While the Divisional Court acknowledged that normally, the courts will respect the legislature's choice as to the standard of review to be applied to decisions of a tribunal, the interpretation of standards imposed by statute must be determined within the context of administrative law principles.
In a recent case before the Supreme Court of Canada involving a British Columbia statute, Binnie J. noted that the test of patent unreasonableness obviously “did not spring unassisted from the mind of the legislator” (Canada (Citizenship and Immigration) v. Kohsa, 2009 SCC 12) and was intended to be understood in the context of the common law jurisprudence. Therefore, while the phrase “patent unreasonableness” would continue to live on, the content of that test would be calibrated according to general principles of administrative law.
The Divisional Court concluded that the Ontario legislature intended that the newly created HRTO should be reviewed on the highest deferential standard of review, and should be accorded the same high degree of deference accorded to other tribunals in the labour field, including the Ontario Labour Relations Board, labour arbitrators, and the Workplace Safety and Insurance Appeals Tribunal. While there was no spectrum of deference within the single standard of reasonableness, the range of acceptable outcomes may expand or contract depending on factors such as the nature of the question and the expertise of the decision maker.
Reasonableness, the Divisional Court held, takes its colour from the context. However, decisions of the HRTO must be rationally supported to fall within a range of acceptable outcomes that are defensible in fact and law. Otherwise, they will be considered to be “patently unreasonable” within the meaning of the legislation.
The Divisional Court held that the HRTO's conclusions in respect of the microwave policy, the dress code, and the termination, were “patently unreasonable.” Throughout its analysis, the Divisional Court employed a test of “patent unreasonableness” whose content drew from the Supreme Court's analysis in Dunsmuir, reconciling the shifts in the HRTO's role, as mandated by the legislature, with newer developments in administrative law. For instance, in respect of the microwave policy, the Divisional Court held that the HRTO's sparse reasons lacked the transparency and intelligibility within the decision-making process that characterized the reasonableness test identified in Dunsmuir.
Today, we can expect that decisions of the HRTO will be reviewed in much the same way as other decisions of administrative tribunals and arbitrators in the labour and employment field. Decisions of the HRTO will be reviewed with deference, on a standard of reasonableness - albeit with a different name.
Christine Davies is a member of the research team in the Toronto office of Sack Goldblatt Mitchell LLP.
Judicial review of arbitral decisions: How much deference is reasonable
By Adam Beatty
In Dunsmuir the Supreme Court held that labour arbitrators’ decisions will generally be reviewed on a standard of reasonableness. In the context of judicial review, “reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process”. The reviewing court must also determine whether the decision under review “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (at para. 47). To be reasonable, a decision must be supported by reasons that can withstand a “somewhat probing analysis”. Decisions reviewed according to the standard of reasonableness, which fall within the range of possible, acceptable outcomes, are entitled to deference from the reviewing court.
In Dunsmuir the Court went on to hold that:
[deference] does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision making process of adjudicative bodies with regard to both the facts and the law. ... (at para. 48).
Despite this guidance, based on a number of judicial review decisions of arbitral awards, it is not clear that the lower courts have been able to formulate a consistent approach to the level of deference owed under the reasonableness standard. In particular, the Divisional Court has released some decisions which have subjected arbitrators’ decisions to a far more exacting and intrusive review than was traditionally seen under the standard of patent unreasonableness. By subjecting arbitral decisions to this intrusive level of review, these decisions are approaching the type of review expected under a standard of correctness.
In Thames Valley District School Board v. Elementary Teachers’ Federation of Ontario, 2011 ONSC 2021, the Divisional Court was called upon to review the three aspects of the arbitrator's decision: (1) did the arbitrator fail to make findings of fact and credibility; (2) did he apply the incorrect test for harassment; and (3) did he carry out the wrong inquiry by failing to determine if the proven conduct amounted to just cause for discharge.
As a whole, Herman J's decision engaged in an intrusive review of the arbitrator's decision, according it very little deference. For example, Herman J. failed to accord deference to the arbitrator's findings of fact and his articulation of those findings. Emblematic of the intrusive nature of the analysis is her conclusion that the arbitrator applied the incorrect test to determining if harassment had occurred, despite the fact that the jurisprudence has established that this type of question should be reviewed on a standard of reasonableness. Taken as a whole, this level of analysis is reflective of the type of review typically carried out under the standard of correctness.
The decision of Molloy J. in 1425445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2010 ONSC 1946 reveals a similar intrusive quality to the decision in Thames Valley. Molloy J. was asked to review an arbitrator's determination that three employees who had submitted fake receipts had not engaged in fraudulent behaviour and therefore did not deserve to be terminated.
Here too, despite claiming that the majority of the arbitrator's findings should be reviewed according to the standard of reasonableness, the level of analysis is characteristic of that traditionally carried out under the standard of correctness. Molloy J. engaged in an exhaustive review of the arbitrator's decision challenging her factual findings, her interpretation (and rejection) of the precedential jurisprudence, her characterization of the alleged misconduct and finally, the penalty imposed. Although Molloy J. repeatedly invoked the standard of reasonableness, the depth and content of the analysis are, once again, more appropriate to the standard of correctness.
In the decisions reviewed above, despite ostensibly reviewing the arbitrators’ decisions according to the standard reasonableness, the Divisional Court appears to have taken a more intrusive approach than it has in the past. While it may be too early to draw any definitive conclusions it seems that some of the lower court decisions have failed to heed the warning in Dunsmuir that “the move towards a single reasonableness standard does not pave the way for a more intrusive review by courts” (at para. 48).
These two decisions should be contrasted with the dissenting opinion of Swinton J. in Greater Essex District County School Board v. Ontario Secondary School Teachers’ Federation, District 9, [2008] O.J. No. 2663 (Ont. Sup. Ct. of Just.) (adopted by the Court of Appeal, at 2009 ONCA 502). At issue here was the proper interpretation of several provisions of the Collective Agreement dealing with “top up pay” during pregnancy leave. In her dissenting opinion, Swinton J. emphasized that the arbitrator's conclusions were “within a range of reasonable outcomes” and that “there was a line of analysis evident throughout” the reasons. Her reasons also acknowledge and build upon the Supreme Court's description of “deference as respect” for the decision-making process. As such, Swinton J. found that the standard of reasonableness was satisfied and the arbitrator's decision should stand.
Swinton's reasons are more reflective of the traditional approach to judicial review of arbitrator's decisions. It is difficult, if not impossible, to reconcile these two divergent approaches. However, it the emergence of a more intrusive approach should not surprise us. In Dunsmuir Binnie J. warned that labelling the most deferential standard as “reasonableness” might (wrongly) result in judges re-weighing the “input that resulted in the administrator's decision as if it were the judge's view of “reasonableness” that counts. It is hoped that courts will heed Binnie J.'s warning and follow the approach set out in Dunsmuir more consistently in the future.
Adam Beatty practises in the pension and benefits group and in the labour law group of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP in Toronto.
Elimination of mandatory retirement for pilots likely to cause Air Canada “undue hardship”
By Rebecca K Saturley
A recent Federal Court decision held that, although Air Canada's mandatory retirement policy violated the Charter rights of older pilots, forcing Air Canada to accommodate them may cause undue hardship (Air Canada Pilots Association v. Kelly and Vilven; Air Canada v. Kelly and Vilven [2011] F.C.J. No. 152 (QL)). Although the future of mandatory retirement for federally regulated employers is “up in the air,” the decision breathes new life into the bona fide occupational requirement exception. If employers can establish that they will incur undue hardship with respect to health, safety or cost, discrimination may be justifiable on the basis that it is a bona fide occupational requirement.
Background
In the Vilven v. Air Canada proceedings, two pilots challenged Air Canada's policy requiring pilots to retire at age 60. Robert Kelly and George Vilven were veteran Air Canada pilots who launched human rights complaints against both Air Canada and the Air Canada Pilot's Association; they alleged that they had been discriminated against on the basis of age. The issue in the proceeding centred on the interpretation of 15(1)(c) of the Canadian Human Rights Act (the CHRA):
15. (1) It is not a discriminatory practice if
…
(c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;
In a decision rendered in August of 2007, the Tribunal dismissed Messrs. Vilven and Kelly's human rights complaints: Vilven v. Air Canada; Kelly v. Air Canada and Air Canada Pilots Association, 2007 CHRT 36. The Tribunal found that 60 was the normal age of retirement for persons working in similar positions, and found that paragraph 15(1)(c) of the CHRA did not contravene subsection 15(1) of the Charter. Because of its finding on the section 15 Charter issue, the Tribunal did not have to decide whether paragraph 15(1)(c) of the CHRA could be justified under section 1 of the Charter.
On judicial review, the Federal Court found that paragraph 15(1)(c) of the CHRA violated subsection 15(1) of the Charter, as it denies the equal protection and equal benefit of the law to workers over the normal age of retirement for similar positions. The Federal Court remitted the matter to the Tribunal for it to determine whether paragraph 15(1)(c) of the CHRA could be demonstrably justified as a reasonable limit in a free and democratic society. In the event that the Tribunal determined that paragraph 15(1)(c) of the CHRA was not saved under section 1 of the Charter, the Tribunal was directed to consider Air Canada's argument that requiring all of its pilots be younger than 60 constituted a bona fide occupational requirement within the meaning of paragraph 15(1)(a) of the CHRA.
Upon reconsideration, the Tribunal found that paragraph 15(1)(c) of the CHRA was not a reasonable limit in a free and democratic society saved by section 1 of the Charter. The Tribunal also found that Air Canada failed to show that the mandatory retirement policy was a bona fide occupational requirement, and in a subsequent decision, ordered that pilots be reinstated with seniority and back pay.
Section 1 analysis
The Federal Court concluded that Parliament's objectives in enacting paragraph 15(1)(c) of the CHRA were still pressing and substantial. The Court determined whether the means employed by Parliament to achieve this objective are proportional and concluded that they were not:
[323] While accepting that the government is entitled to a significant degree of deference in legislating in this area, the evidence before the Tribunal did not demonstrate that the government continues to have reasonable basis for concluding that allowing parties to negotiate mandatory retirement arrangements is necessary for the achievement of the objectives of paragraph 15(1)(c) of the CHRA, to the extent that these objectives relate to the preservation of mutually-beneficial labour market structures.
[324] Consequently, I find that the Tribunal was correct in finding that ACPA and Air Canada have not established that older workers’ Charter rights are minimally impaired by paragraph 15(1)(c) of the Canadian Human Rights Act. Parliament's objectives can be attained without impairing the Charter rights of workers over the normal age of retirement to the extent permitted by paragraph 15(1)(c) of the CHRA.
The Federal Court did not shut the door completely on mandatory retirement, noting:
[325] Before leaving this issue, I would note that I do accept that there could potentially be specific employment situations where mandatory retirement could be demonstrably necessary for the maintenance of a particular negotiated package of rights and benefits. As the arbitrator observed in CKY-TV, “A more carefully tailored version of section 15(1)(c), which limited the exception to those kinds of circumstances, might pass the section 1 test”: at para. 218. That is, however, an issue for another day.
In short, the Federal Court concluded that the “otherwise discriminatory” practice of mandatory retirement contained in paragraph 15(1)(c) of the CHRA is not a reasonable limit justifiable in a free and democratic society.
Eliminating mandatory retirement may cause undue hardship to Air Canada
Before the Tribunal, Air Canada provided extensive expert evidence to support its position that eliminating mandatory retirement would make it nearly impossible to schedule pilots in accordance with international aviation standards; those standards changed in November 2006. The Court held that the Tribunal's analysis based on the standards prior to November 2006 was reasonable but not reasonable for the post-November 2006 standards. Despite the abundance of evidence provided, the Tribunal found that the evidence was “lacking” and went as far as saying that “no evidence” had been offered to support some of Air Canada's points. Because the expert evidence was central to Air Canada's bona fide occupational requirement defence, the Federal Court found that the Tribunal's treatment of this evidence lacked the “transparency and accountability required of a reasonable decision”. The treatment of Air Canada's evidence was not simply a case where the Tribunal failed to refer to specific arguments, rather, it gave rise to an “inescapable inference” that important aspects of the evidence had been overlooked and ignored.
In order to establish a bona fide occupational requirement, the CHRA requires that employers demonstrate that they will suffer undue hardship with respect to health, safety or cost. The Federal Court also found that the Tribunal had made a reviewable error by considering the effect that eliminating mandatory retirement would have on seniority rights and employee morale. The Court went on to clarify that the only determinative factors in an undue hardship assessment are the health, safety and cost consequences for the employer. Despite this limitation, the Federal Court also clearly stated that factors such as seniority and employee morale could appropriately be considered so long as they have an impact that relates to health, safety or cost.
As a result of these errors, the Federal Court remitted the case back to the Tribunal for a re-determination of whether eliminating mandatory retirement would cause undue hardship to Air Canada under the post November 2006 international aviation standards.
The case is still far from over. The Federal Court's decision has been appealed. Further, as with other Tribunal decisions in this proceeding, we can expect that its next decision on the bona fide occupational requirement defence will also be subject to another judicial review application. Stay tuned.
Rebecca K Saturley is a partner at Stewart McKelvey Stirling Scales, Halifax
Court upholds award for wrongful termination
By Andrew Langille
Owen Shime is one of Canada's foremost labour arbitrators, so it was no surprise that he penned the groundbreaking decision in PSAC, Local 0004 v. Greater Toronto Airports Authority, which dealt with the termination of a long-service employee who had recently returned from sick leave and awarded her over $500,000.00. The Employer appealed the decision to the Divisional Court, and the Court handed down its decision in Greater Toronto Airport Authority v. PSAC, Local 0004 2011 ONSC 487 earlier this year.
What’s behind the dust-up?
The grievor was the Greater Toronto Airports Authority’s (“GTAA”) fleet coordinator with twenty-three years of service and an unblemished disciplinary record. On October 31, 2003 she suffered a workplace injury to her knee and went on modified duties until arthroscopic surgery on February 19, 2004. She received a doctor’s note from her surgeon on February 24, 2004, putting her off work for four weeks. On February 27, 2004, the grievor was observed being driven to a medical appointment during surveillance on another GTAA employee who was living with the grievor. The employer then decided to place the grievor under surveillance as well.
Video surveillance was deployed from March 9-10, 2004, and over the course of the two days the grievor attended medical appointments, a number of retail stores, a gas station, the post office, and made a fifty-kilometre round trip to the airport to pick someone up. On March 11, 2004, the employer contacted the grievor and demanded that she produce additional medical information as to why she needed four weeks off work and if she could return to work early. The grievor attempted to contact her surgeon, but was unsuccessful, so she obtained a note from her physiotherapist who indicated a further week off work was necessary for recovery.
Despite the note, the grievor returned to work on March 15, 2004, but was sent home after her supervisor refused to accept the note. The next day the GTAA employee the grievor was living with was terminated from his employment. That day, the grievor attended her surgeon’s office and confessed the fear that she was about to lose her job. Her surgeon called her supervisor and left an answering machine message questioning why his diagnosis was suspect. Then he provided the grievor with a doctor’s note permitting a return to work on modified duties with severe limitations.
She returned to work on March 17, 2004, and was not provided with modified duties. By the end of her shift she was in pain and limping having sustained further injury to her knee. The surveillance continued and she was observed limping heavily. On March 19, 2004, she was called into a meeting with the employer. They disclosed the video surveillance and that she had been observed walking and driving with no apparent discomfort longer than her medical restrictions prescribed. She was given a chance to respond and then was suspended indefinitely. The employer was not satisfied with the answers the grievor provided and terminated her employment for cause, citing dishonesty in the termination letter as the reason for firing her.
What did the arbitration award say?
Arbitrator Shime took a dim view of the employer’s arguments and relied on the line of decisions that includes: Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701, Fidler v. Sun Life Assurance Co. of Canada [2006] 2 S.C.R. 3, and Honda v. Keays [2008] 2 S.C.R. 362. The decision also imported Malik v. Bank of Credit and Commerce International S.A. [1997] 3 All E.R. 1 (H.L.) into the labour relations context, a leading English decision which establishes an implied term of good faith and fair dealing on the part of the employer in the context of non-unionized employment. The Union initially requested reinstatement, back wages, damages for: loss of a unionized position; pain and suffering; slander; defamation; and a punitive award. The arbitration took almost five years to complete: running from August 3, 2005, to June 10, 2009. Over the course of the hearing, the grievor dropped her request for reinstatement.
The award was issued in February of 2010 and found that: the employer had not relied on any medical evidence in the termination; the video surveillance was unjustified; her medical condition had been incorrectly assessed by the employer; the employer violated the collective agreement and should have obtained a further medical opinion; that the employer had preconceived prejudice against the grievor; the employer failed to consider progressive discipline; and, the employer failed to establish that there was modified duties the grievor could have performed post-operation. In total, $50,000.00 was awarded for mental distress, $50,000.00 for punitive damages, damages for pain and suffering for the re-injury to her knee, approximately $500,000.00 in for past and future economic loss from the date of termination to the date when the grievor would have been entitled to early retirement.
The judicial review
The Divisional Court decision, penned by Justice Swinton followed Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, held that the appropriate standard of review was reasonableness. The Court upheld the vast majority of Arbitrator Shime’s award: the damages for pass and future economic loss were allowed; the punitive damages and those for pain and suffering were overturned by the Court; and the award for mental distress was remitted back to the arbitrator for further consideration.
Conclusion
Both the award and Divisional Court decision are major victories for unions and employees in Canada. Lawyers should be extremely cautious when giving advice to employers who are: engaging in surveillance, dealing with an employee on medical leave, and/or considering the use of discipline. It is good practice to suggest to employers that: they implement sound human rights and discipline policies; deploy advanced labour relations training for human resources and management personnel; use a cautious approach when dealing with sensitive employee issues; treat employees in a dignified, thoughtful manner; and, be acutely aware of their obligations under collective agreements and labour law. In the end employer preventative action is the best approach to avoid a similar occurrence, rather than have noted labour relations expert ruling on workplace incidents that transpired years earlier.
Andrew Langille is a Toronto-based lawyer and is currently an LL.M. student at Osgoode Hall Law School. He writes the Youth & Work Blog about workplace issues facing youth. He can be contacted at andrewlangille@gmail.com or at 416-525-1082.
Employee’s personal communication using employer’s e-mail not within employer’s custody or control, Divisional Court rules
By Inna Koldorf
On December 13, 2010 the Divisional Court ruled that a government employee’s personal e-mails sent using the employee’s workplace e-mail and stored on the government’s e-mail server are not subject to provincial freedom of information legislation.
Facts
Rick O’Connor, A City of Ottawa (the “City”) solicitor, volunteered on the Board of Directors of the Children’s Aid Society (“CAS”). There was no connection between Mr. O’Connor’s volunteer work and his work for the City. Mr. O’Connor sent and received e-mails in connection with his volunteer work for the CAS on his work e-mail address, but segregated the CAS e-mails in a separate folder on the City’s e-mail server.
The City’s Responsible Computing Policy (the “Policy”) permits incidental personal use of its e-mail by employees, subject to certain conditions. The Policy specifies that all electronic information remains the property of the City, but does not require employees to retain personal e-mails sent and received on City e-mail addresses.
The City received a request by a member of the public under section 4(1) of the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) for all e-mails, letters and faxes sent and received by Mr. O’Connor to and from anyone at CAS. Section 4(1) of MFIPPA states:
4.(1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,
(a) the record or the part of the record falls within one of the exemptions under sections 6 to 15; or
(b) the head is of the opinion on reasonable grounds that the request for access is frivolous or vexatious.
The City refused to produce the documents, responding that such documents are not in its custody or control, and as such fall outside MFIPPA.
Case history
The matter came to a hearing before the Information and Privacy Commissioner (the “IPC”). The IPC found that personal e-mails sent by Mr. O’Connor via the City’s e-mail account were subject to MFIPPA and accordingly ordered the City to disclose them. The IPC reasoned that the City had physical possession of the e-mails on its sever, had the right to such possession, had the authority to regulate the e-mails on its system and had control of the e-mails on its system.
The City applied for judicial review.
The Divisional Court’s decision
Writing for a unanimous court, in City of Ottawa v. Ontario (Information and Privacy Commissioner, [2010] O.J. No. 5502 (QL)), Justice Molloy found that the e-mails at issue do not fall within the scope of MFIPPA and could not therefore be accessed by members of the public. In setting aside the IPC’s decision and confirming the City’s decision, the Court noted that although it agreed with the IPC that the issue to be decided is whether the e-mails are in the custody or control of the City, the IPC fundamentally erred in failing to consider the purpose and intent of MFIPPA, and whether or not disclosure of the e-mails would advance the purpose of the legislation.
The Court determined that the purpose of MFIPPA is to facilitate democracy and citizens’ right to participate in democracy by ensuring that citizens have access to government information. Applying the purpose of MFIPPA to the terms “custody” or “control”, the Court determined that the e-mails at issue are not related to City business and the City could not expect to obtain a copy of those documents on request because they do not fall within the scope of Mr. O’Connor’s job duties.
Disclosure of personal e-mails that are not remotely connected to the operation of the City’s business would not further the objective of facilitating democracy and citizens’ right to participate in democracy. Prohibiting access to the e-mails does not impair democratic values. The CAS is not subject to MFIPPA, and Mr. O’Connor is not subject to having his personal documents seized and produced to the public upon request merely because he is employed by the City and uses the City’s e-mail to correspond.
Furthermore, the Court found, the seizure of and disclosure by the City of such personal communications ran contrary to the protection of privacy, another purpose of MFIPPA.
The Court found that the e-mails at issue are not in the custody or control of the City and therefore do not have to be disclosed. Personal documents that are physically kept in a government employee's workspace are not susceptible to MFIPPA, and personal e-mails are similarly protected.
Comment
In City of Ottawa the Divisional Court confirmed that employers do not have custody or control of employees’ personal communication simply by virtue of such communications being transmitted and stored on computers and servers owned by the employer. This appears to be the trend in several recent decisions concerning information stored on employer-owned computers and servers.
In David v. Ontario (Information and Privacy Commissioner, [2006] O.J. No. 4351, 217 O.A.C. 112 (Div. Ct.), the Divisional Court found that documents which were stored on computers owned by the City of Toronto were not within the City of Toronto’s control because they were produced and owned by a independent investigator who was not an employee, officer or agent of the City.
In PIPEDA Case Summary #2009-019, Canada’s Privacy Commissioner found that personal e-mails that were sent or received by employees on the employer’s server remained employees’ personal information that was protected by the Personal Information Protection and Electronic Documents Act.
Most recently in R. v. Cole ([2011] O.J. No. 1213 (QL), the Ontario Court of Appeal ruled that a teacher’s Charter right to protection against unreasonable search and seizure was violated by police when the police, without a warrant, investigated pornography allegations by examining the school-owned computer used by the teacher.
Notwithstanding the recent trend suggested by these decisions, employees and employers would be well advised to keep in mind that the law on this issue remains unsettled. We are likely to see further decisions from appellate courts elaborating on and providing guidelines and limits with respect to when and how personal documents and communications unrelated to the workplace are subject to disclosure under freedom of information or protection of privacy legislation, and under what circumstances such documents are in the custody or control of the employer.
Until then, employees would be well advised to refrain from storing personal documents and communications on employers’ computers and systems. Employers must be careful in responding to freedom of information requests and avoid disclosing employee documents and communications stored on their systems that may be of a personal nature.
Conclusion
The IPO has moved for leave to appeal the Divisional Court’s decision in City of Ottawa. It would be interesting to see whether the Divisional Court’s decision will be confirmed or overturned, considering the trend that courts and tribunals have recently followed with respect to employees’ privacy rights in producing and storing electronic documents and communications on employers’ computer systems.
Inna Koldorf is a partner at Watson Jacobs McCreary in Toronto.
Mark Your Calendars!
Labour & Employment/Administrative Law Conference
By Len Polsky
November 25-26, 2011, Ottawa
On behalf of the national Labour & Employment Law Section, it is a pleasure to invite you to attend the 2011 Labour & Employment/Administrative Law Conference, November 25-26.
We are developing a program that will inform and interest you, and will be highlighted by a conversation with the Right Hon. Beverley McLachlin, Chief Justice of Canada.
You will hear discussions and presentations from some of Canada's leading lawyers and judges on the latest developments in labour and employment law and administrative law. The program will help you improve your professional skills, learn about relevant developments in the law, and network with colleagues from around the country.
We hope to make this year's conference the most meaningful, enjoyable and well attended meeting yet.
This year's conference is designed to update and inform both sides of the labour and employment bar. Lawyers representing management, unions and government agencies will challenge each other and conference attendees about developments and ongoing challenges in their primary areas of practice, including:
- The Year in Review in Labour & Employment and Administrative Law
- Fireside Chat with Right Hon. Beverley McLachlin, Chief Justice of Canada
- Experts and Tribunal Expertise
- Workplace Investigations
- Ignore the Person behind the Curtain - Real and Nominal Litigants
- Privilege
- A View from the Bench
- The Changing Supreme Court of Canada
Details coming soon on the CBA PD website.
We look forward to seeing you in November.
-2011 Conference Organizing Committee
Len Polsky, Counsel at MacPherson Leslie & Tyerman LLP.
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